Jaime Charboneau v. Tyrell Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAIME DEAN CHARBONEAU, No. 20-35875
AKA Jaimi Dean Charboneau,
D.C. No. 1:17-
Petitioner-Appellant, cv-00364-DCN
v.

TYRELL DAVIS, acting in his OPINION
official capacity as Warden of the
Idaho State Correctional Institution,

Respondent-Appellee.

Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding

Argued and Submitted November 7, 2022
Seattle, Washington

Filed December 4, 2023

Before: Sandra S. Ikuta and Daniel P. Collins, Circuit
Judges, and Sidney A. Fitzwater, * District Judge.

Opinion by Judge Collins
*
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
2 CHARBONEAU V. DAVIS

SUMMARY **

Habeas Corpus

The panel affirmed the district court’s denial of Jaime
Dean Charboneau’s second federal habeas corpus petition
seeking to set aside his Idaho conviction for the 1984
shooting death of his ex-wife Marilyn Arbaugh after a trial
that included inculpatory testimony from Marilyn’s
daughters Tira and Tiffnie.
In the second federal habeas petition, Charboneau
alleged that Idaho officials violated their obligations under
Brady v. Maryland, 373 U.S. 83 (1963), by encouraging Tira
to provide false statements and testimony regarding her
mother’s death and to dispose of potentially exculpatory
evidence. In support of these allegations, Charboneau relied
on a letter written by Tira in 1989, four years after
Charboneau’s 1985 trial and nine years before Tira’s death
in 1998. According to Charboneau, the contents of that letter
from Tira support his contentions that Tiffnie also fired shots
at Marilyn and that, as a result, there is reasonable doubt as
to whether Charboneau caused Marilyn’s death and as to
whether he intended to kill Marilyn.
In order for Charboneau’s Brady claim to be considered
by a federal court on the merits, he faced the threshold
requirements that Congress has imposed on the
consideration of any “second or successive” federal habeas
petition. Under 28 U.S.C. § 2244(b)(2)(B), Charboneau was
required to make a showing that (1) he could not have

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CHARBONEAU V. DAVIS 3

obtained Tira’s letter earlier through the exercise of
diligence; and (2) the statements recounted in that letter, “if
proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder
would have found [him] guilty of the underlying offense” of
first-degree murder.
Like the district court, the panel found it unnecessary to
address the diligence issue, because the panel concluded that
the new materials, viewed in light of the evidence as a whole,
do not suffice to make the showing of actual innocence
required by 28 U.S.C. § 2244(b)(2)(B)(ii).
The applicable standard for showing actual innocence set
forth in § 2244(b)(2)(B)(ii) was added by the Antiterrorism
and Effective Death Penalty Act.
The panel addressed several issues about how that
standard is to be applied.
First, the panel held that the statutory command to view
the facts underlying the claim in light of the evidence as a
whole requires the court to consider the same scope of
evidence as described under the test set forth in Schlup v.
Delo, 513 U.S. 298 (1995)—namely, “all the evidence, old
and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted under rules of
admissibility that would govern at trial.”
Second, the panel held that a habeas court remains free,
after taking the proffered “facts” underlying the actual
innocence claim as “proven,” as required by
§ 2244(b)(2)(B)(ii), to then assign little probative weight to
those statements, either because they are ultimately deemed
4 CHARBONEAU V. DAVIS

to be unreliable or because their probative force is
outweighed by other evidence.
Third, the panel concluded that a presumption of
correctness attaches under 28 U.S.C. § 2254(e)(1) to any
specific factual findings made by the state court that bear on
the reliability or authenticity of particular items of evidence
that are presented to a federal court that is charged with
applying § 2244(b)(2)(B)(ii)’s actual innocence standard.
Applying those standards to Charboneau’s claimed
showing that he is actually innocent of first-degree murder,
and presuming that Tira did in fact author the letter, the panel
concluded that Charboneau did not show by clear and
convincing evidence that the statements recounted in Tira’s
letter, considered in light of all the evidence, suffice to show
that no reasonable factfinder would have convicted him of
first-degree murder. Accordingly, Charboneau failed to
meet the threshold requirement of § 2244(b)(2)(B)(ii), and
the district court properly dismissed his petition without
reaching the merits of his Brady claim.

COUNSEL

James K. Ball, Jr. (argued), Manweiler Breen Ball & Davis
PLLC, Boise, Idaho, for Plaintiff-Appellant.
L. LaMont Anderson (argued), Deputy Attorney General,
Capital Litigation Unit Chief, Criminal Law Division;
Lawrence G. Wasden, Idaho Attorney General; Idaho
Attorney General’s Office, Boise, Idaho; for Defendant-
Appellee.
 CHARBONEAU V. DAVIS 5

OPINION

COLLINS, Circuit Judge:

Petitioner-Appellant Jaime 1 Dean Charboneau was
convicted in Idaho state court of the 1984 shooting murder
of his ex-wife Marilyn Arbaugh after a trial that included
inculpatory testimony from Marilyn’s daughters Tira and
Tiffnie. 2 Although Charboneau’s death sentence was
vacated on appeal, 3 his conviction was affirmed, and his
efforts to obtain post-conviction relief have been thus far
unsuccessful. The appeal before us arises from
Charboneau’s second federal habeas petition, in which he
alleges that Idaho officials violated their obligations under
Brady v. Maryland, 373 U.S. 83 (1963), by encouraging Tira
to provide false statements and testimony regarding her
mother’s death and to dispose of potentially exculpatory
evidence. In support of these allegations, Charboneau relies
on a letter written by Tira in 1989, four years after
Charboneau’s 1985 trial and nine years before Tira’s death
in 1998. According to Charboneau, the contents of that letter
from Tira support his contentions that Tiffnie also fired shots
at Marilyn and that, as a result, there is reasonable doubt as

1
In the state court proceedings, Petitioner’s first name was generally
spelled as “Jaimi.” However, Petitioner signed and filed his federal
habeas petition in this case using the spelling “Jaime,” and that spelling
was therefore used by the parties and the district court in these federal
proceedings.
2
Because Marilyn, Tira, and Tiffnie all share the last name of Arbaugh,
we will refer to them only by their first names.
3
On remand, the State elected not to seek the death penalty and
Charboneau was sentenced to a fixed term of life imprisonment. See
State v. Charboneau, 861 P.2d 67, 68–69 (Idaho 1993).
6 CHARBONEAU V. DAVIS

to whether Charboneau caused Marilyn’s death and as to
whether he intended to kill Marilyn.
Charboneau concedes that, in order for his Brady claim
to be considered by a federal court on the merits, he must
first meet the threshold requirements that Congress has
imposed on the consideration of any “second or successive”
federal habeas petition. See 28 U.S.C. § 2244(b)(2)(B).
Under § 2244(b)(2)(B), Charboneau must make a showing
that (1) he could not have obtained Tira’s letter earlier
through the exercise of diligence; and (2) the statements
recounted in that letter, “if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found [him] guilty of the
underlying offense” of first-degree murder. Id. The district
court assumed that Charboneau had satisfied the diligence
prong, but it concluded that he had not made the showing of
actual innocence required by the second prong. Reviewing
de novo, we agree and affirm.
I
A
Charboneau and Marilyn “were married in June 1983,”
after living together for about two years. State v.
Charboneau, 774 P.2d 299, 302 (Idaho 1989), overruled on
other grounds by State v. Card, 825 P.2d 1081 (Idaho 1991).
Their relationship was “stormy” and at times violent: there
was evidence that Charboneau abused Marilyn, and Marilyn
once shot Charboneau with a pistol during an argument. Id.
The couple were divorced on June 13, 1984, after about a
year of marriage. Id. at 302–03.
 CHARBONEAU V. DAVIS 7

Eight days after their divorce became final, Charboneau
“went to the cafe where Marilyn worked,” and “[t]hey left in
Marilyn’s car.” Charboneau, 774 P.2d at 303. The
following day, “Marilyn reported to the police that
[Charboneau] had kidnapped and raped her and had stolen
her car.” Id. As a result, Charboneau was charged in Jerome
County, Idaho with kidnapping and grand theft on June 25,
1984. Id. Three days later, Charboneau bought a .22-caliber
Remington rifle from a hardware store. Id.
On July 1, 1984, Marilyn was killed by multiple gunshot
wounds outside her home on a ranch near Jerome, Idaho. 4
At around 11:00 AM, “Marilyn went out to check some
horses in a corral near her home.” Charboneau, 774 P.2d at
303. Soon after, Tiffnie (who was then 16 years old) “heard
shots outside,” retrieved Marilyn’s .22-caliber Ruger pistol,
and “went to see what had happened.” Id. She discovered
Marilyn “sitting on the ground in the barn with blood on
her.” Id. Charboneau was standing nearby, “with a .22
caliber rifle pointed at Marilyn,” who was still alive. Id.
Tiffnie left the scene and, at 11:38 AM, called the police
and informed them that Charboneau had shot Marilyn.
Charboneau, 774 P.2d at 303. Tiffnie told her 14-year-old
sister Tira what had happened, and “they both got dressed.”
Id. After hearing additional shots, they “ran outside where
they hid behind a sheep wagon and called to their mother.”
Id. Tiffnie still “had her mother’s .22 caliber pistol with her,
and it accidentally discharged behind her.” Id. She went
back to the house, “hid the gun, returned to the sheep wagon,
and then ran to the barn,” with “Tira follow[ing] close

4
Except as noted, our summary of the facts concerning that murder is
based on the Idaho Supreme Court’s descriptions of the evidence
adduced at Charboneau’s trial.
8 CHARBONEAU V. DAVIS

behind.” Id. At this point, “Marilyn was lying on her back
with her arms over her head.” Id. “The girls ran back” to
the house “to call for an ambulance,” and at 11:42 AM, Tira
called the police and told them to send an ambulance because
“her mother was dying.” Id. When police arrived, they
“found Marilyn’s body in the barn and located [Charboneau]
in a field near the barn with a .22 caliber rifle lying nearby.”
Id. Charboneau “was arrested and charged with first degree
murder.” Id. “At the time of his arrest, [Charboneau]
acknowledged that he had shot Marilyn, although he stated
that he did so because she was going to shoot him.” Id.
Forensic evidence introduced at trial showed that
Marilyn had been shot 14 times or more. Charboneau v.
State, 395 P.3d 379, 392 (Idaho 2017). 5 She died of multiple
“gunshot wounds to the chest,” and “she had not been shot
in the head.” Id. at 386–87. According to the Idaho Supreme
Court, all but one of the seven bullet fragments that were
recovered from Marilyn’s body were identified as having
been fired from the .22-caliber Remington rifle that
Charboneau had purchased at the hardware store and that he
had admitted using to shoot Marilyn. Id. The state high
court further stated that, as to the remaining recovered bullet
fragment (identified as fragment “C” at trial), the State’s
ballistics expert was not certain that it was fired from that
rifle, but he was able to definitively conclude that it was not

5
At one point, the Idaho Supreme Court’s opinion states that “[t]he
pathologist who performed an autopsy on Marilyn’s body testified at the
trial that she had been hit by at least 15 bullets,” 395 P.3d at 387
(emphasis added), but the trial transcript of the pathologist’s testimony
clearly states that “the minimum number of intact projectiles which
struck the body is fourteen.”
 CHARBONEAU V. DAVIS 9

fired from the Ruger pistol that Tiffnie had accidentally
discharged behind the sheep wagon. Id. at 387. 6
In various statements, and in his testimony at a pretrial
hearing on his motion to dismiss the murder charge against
him, Charboneau provided a different account of the events
of July 1, 1984. According to Charboneau, he had bought
the .22-caliber Remington rifle as a graduation gift for Tira.
Charboneau, 395 P.3d at 384. He claimed that “he and
Marilyn had reconciled and were going to live together
again, but that she wanted him to stay in the barn until she
broke the news to her daughters.” Charboneau, 774 P.2d at
303. The Idaho Supreme Court described his testimony at
the hearing on the motion to dismiss as follows:

[Charboneau] testified that when Marilyn
came to the barn that morning she picked up
the .22 caliber rifle and took it into the house
to remove a scope sight that had come with
it. He said that Marilyn told him that she was
going to tell the girls that day that [he] was
there and would let Tira take the gun to the
gun range and let her sight it in.
[Charboneau] told the court that when
Marilyn came back to the barn she had a
handful of bullets and loaded the rifle. He
said that after going out to the corrals to move
some horses, he and Marilyn returned to the
barn. He said he asked Marilyn where she

6
The trial transcript states that, in addition to fragment “C,” the ballistics
expert also could not be certain that bullet fragment “4” had been fired
from Charboneau’s Remington rifle. He stated that, because that bullet
“was completely mangled,” the only opinion he could render was “that
this is a Remington bullet,” and “beyond that I cannot go.”
10 CHARBONEAU V. DAVIS

had been all night, and that she told him he
thought she was sleeping with every guy in
the valley. He stated that Marilyn picked up
the rifle, pointed it at him, and told him that
he was dead and that no other woman was
going to have him. He said he heard a click,
grabbed the barrel of the rifle and wrestled it
away from her. [Charboneau] testified that
Marilyn screamed for Tiffnie to bring
Marilyn’s shotgun to her, and that when he
got the rifle away from Marilyn, she turned
around and ran. He said that he saw Tiffnie
coming from the house, that he had the rifle
at his hip, and that he thought Marilyn might
be going to run around and get another gun.
He said that he closed his eyes and that the
gun went off several times. He opened his
eyes and Marilyn was on her knees and
bleeding. He said that Marilyn told Tiffnie to
leave and that he told Tiffnie to call an
ambulance. He testified that as he knelt
beside Marilyn, Tiffnie came running toward
them with a pistol saying, “I hate both of you
guys.” He said that Tiffnie fired the pistol
two or three times and that he ran out of the
barn. He stated that when he realized that
Tiffnie was not coming after him he eased
back to the barn and heard Tiffnie talking to
her mother. He testified that he saw Tiffnie
 CHARBONEAU V. DAVIS 11

standing above her mother, heard the pistol
go off, and saw Marilyn’s hair fly up.

Id. at 304–05. The motion to dismiss was denied, and
Charboneau was subsequently convicted by a jury of first-
degree murder. Id. at 305.
Charboneau was originally sentenced to death, but as
noted earlier, that sentence was vacated on appeal, and on
remand he was resentenced to life in prison. See State v.
Charboneau, 861 P.2d 67, 68–69 (Idaho 1993). Since his
conviction, Charboneau has filed numerous unsuccessful
petitions for post-conviction relief in state court. He also
filed a petition for a federal writ of habeas corpus, generally
alleging ineffective assistance of counsel and challenging
the admission of certain evidence at trial. The district court
denied the petition, and we affirmed. Charboneau v.
Klauser, 107 F.3d 15 (9th Cir. 1997) (unpublished table
decision).
B
The current round of post-conviction litigation is based
on a mysterious envelope of documents that Charboneau
received on March 18, 2011 from a correctional officer, who
discovered it “in one of the prison offices.” Charboneau
asserts that the evidence contained in the envelope showed
that the State withheld exculpatory evidence from him in
contravention of Brady. Because of their importance to this
appeal, we will describe those documents at some length.
1
The most important document in the envelope is a
photocopy of a handwritten letter that was purportedly
written by Tira and that bears the date of September 6, 1989.
12 CHARBONEAU V. DAVIS

This “Tira Letter” was addressed to Judge Philip Becker,
who had presided over Charboneau’s murder trial.
Charboneau, 395 P.3d at 381. The letter was accompanied
by a photocopy of an envelope that was addressed to Judge
Becker and was postmarked September 7, 1989. Id. at 381–
82. The letter generally alleges that police and prosecutors
pressured Tira to give false testimony regarding the
circumstances of her mother’s death and that “some of the
things in [her] statements to the police were not all true.”
According to the letter, on the day of Marilyn’s murder, Tira
gave a statement to an Officer Driesal, who told her “to only
say certain things so that [her] statement wouldn’t be
confusing” and who instructed her to say “certain things that
were not really true.” The letter provided the following new
version of what had occurred on the day of Marilyn’s
murder, which was materially different in several respects
from the testimony Tira gave at trial.
The letter states that, on the morning of July 1, 1984,
Charboneau was at the house and told Tira “that the wrangle
horse was waiting on [her],” which was a phrase he used to
tell her when she overslept. Marilyn then entered Tira’s
bedroom and gave her a “big box wrapped in decorative
paper,” and inside the box was a new .22-caliber rifle. The
letter, like Charboneau, claimed that the rifle was a
graduation gift from Charboneau.
The letter stated that Marilyn then took a bath and got
dressed and that she told Tiffnie and Tira “that she was going
outside to help [Charboneau] with the horses.” Tira went to
take a bath, and shortly thereafter she heard gunshots.
Tiffnie then came running into the bathroom and screamed
at Tira to get dressed. Tiffnie grabbed Tira’s new .22-caliber
rifle and gave Tira one of Marilyn’s .22-caliber pistols, and
the girls then went outside and hid behind the sheep wagon.
 CHARBONEAU V. DAVIS 13

Tira could see Marilyn in an alleyway by a feed canal, but
she did not see Charboneau and could only hear his voice.
Tira heard Tiffnie shoot the rifle while they were behind the
sheep wagon. Startled by the sound, Tira accidentally fired
the pistol. Tiffnie then told Tira that Marilyn had taken a
different .22-caliber rifle nicknamed “Calamity Jane” with
her when she went outside with Charboneau.
The letter further stated that, a few days after Tira gave
her statement to Officer Driesal, a different officer, Larry
Webb, visited Tira at her grandfather’s house. Officer Webb
told Tira that she had “forgotten to write down some
important things in [her] statement.” He instructed Tira to
add that she and Tiffnie “had heard 6 or 8 more shots” after
they went back into the house. Tira signed another statement
to that effect, “even though [she] knew it was not true.”
The letter also recounted an alleged incident in which
Marc Haws, the “new prosecutor from Boise,” told Tira that
she “need[ed] to get rid of [Marilyn’s] Calamity Jane rifle.”
The letter stated that Tira did not know why Haws had asked
her to do this, but that she, along with her grandfather and
her uncle, buried Calamity Jane behind a potato cellar.
After the signature line, the letter contained a postscript
stating that Tira was in Bruneau, Idaho “for a cowboy benefit
[and] street dance” and that she would return to Jerome,
Idaho “early next week.”
2
There were several additional documents in the
mysterious envelope found at the state prison. One was a
handwritten statement purportedly composed by former
Jerome County deputy sheriff Orville Balzer. Charboneau,
395 P.3d at 388. The statement claims that Balzer saw Judge
14 CHARBONEAU V. DAVIS

Becker’s clerk Cheryl Watts open and read the Tira Letter
and that Balzer then told Watts to “lose the letter in a ‘ghost’
file.” Id. Charboneau concedes that this “Balzer Statement”
was forged, as expressly found by the Idaho state court in
connection with Charboneau’s latest round of post-
conviction challenges. Id. Specifically, the Idaho trial court
determined that the true author of the statement was
DeWayne Shedd, a library specialist for the Idaho
Department of Corrections who worked at the state prison in
Orofino from 1997 to 2007; Charboneau was housed there
from approximately late 2001 until April 2011. Id. Shedd
gave testimony in which he denied knowing who Tira,
Balzer, or Watts were. Id. The Idaho Supreme Court held
that, given Shedd’s lack of knowledge concerning the
matters set forth in the Balzer Statement, someone must have
assisted him in preparing it, and that “the only person who
could have done so was Charboneau.” Id.
The envelope also contained a typed affidavit
purportedly from former Jerome County Sheriff Larry Gold,
who (like Tira) was already deceased at the time the
envelope was found. Charboneau, 395 P.3d at 387. The
statement, dated November 13, 2001, claimed that Sheriff
Gold’s Chief Deputy had informed him that the clerk of
court was in possession of a letter sent by Tira to “the
presiding judge in Charboneau’s case,” and that the Chief
Deputy was concerned that the clerk had asked for his help
in destroying the letter. Id. The Idaho Supreme Court noted
that the affidavit “was not sworn to before a notary public,”
even though “Idaho did not authorize a certification or
declaration under penalty of perjury in lieu of a statement
sworn to before a notary public until July 1, 2013.” Id. at
387–88. The Court concluded that this meant that “[e]ither
the document was actually prepared after July 1, 2013, when
 CHARBONEAU V. DAVIS 15

Idaho law permitted such a declaration, or, while serving as
sheriff of Jerome County, Mr. Gold never realized that Idaho
law did not provide for a declaration under penalty of
perjury.” Id. at 388.
Finally, the envelope contained several more documents.
One was a note dated June 27, 2003, in which Shedd stated
that he had been told by a prosecutor to monitor
Charboneau’s mail, to “look for and seize” a letter arriving
from Sheriff Gold, and to “confiscate any documents”
referencing Tira. Charboneau, 395 P.3d at 388–89. The
envelope also contained two emails, purportedly printed
from the Idaho Department of Corrections system, “from
Mr. Shedd to a superior regarding intercepting Charboneau’s
mail.” Id. at 389. However, an expert concluded, in
connection with the state post-conviction proceedings, that
there was “no reasonable scenario that results in these emails
being genuine.” Id. The state trial court suggested that these
“Shedd Emails,” even if forged, could not have been
prepared “by anyone friendly to Charboneau,” but the Idaho
Supreme Court expressly disagreed, reasoning that Shedd
had access to the email system and had forged at least one
other document (viz., the Balzer Statement) to “benefit
Charboneau.” Id.
C
Charboneau filed a state petition for post-conviction
relief based on the materials in the newly discovered
envelope. The trial court concluded that the Tira Letter had
been written by Tira and that it had been “suppressed or
withheld by the State, either willfully or inadvertently, from
at least 2003 on, and [that] prejudice to Charboneau ha[d]
ensued.” Charboneau, 395 P.3d at 390. The trial court
16 CHARBONEAU V. DAVIS

therefore granted Charboneau’s petition and ordered a new
trial. Id. at 389.
In May 2017, the Idaho Supreme Court reversed. The
court held, inter alia, that, even if genuine, the Tira Letter
was not material Brady evidence because there was not a
“reasonable probability that [Charboneau’s] conviction or
sentence would have been different had the Tira Letter been
disclosed.” Charboneau, 395 P.3d at 391. The court noted,
inter alia, that the claims made in the Tira Letter were
inconsistent in several respects with Charboneau’s
testimony at the hearing on his motion to dismiss and that
“the forensic evidence contradicts both of their versions.” 7
Id. at 382; see also id. at 392. The state high court also noted
that some of the statements in the Tira Letter were
contradicted by testimony that had been offered by Tira’s
husband in the state post-conviction proceedings as well as
with other evidence about the timing of events recounted in
the letter. As the Idaho Supreme Court explained:

The letter stated, “I am in Bruneau Idaho for
a cowboy benefit + street dance where the
Pinto Bennetts band is providing the music”
and “I will be back in Jerome early next
week.” The street dance did not occur until
ten days after the date of the letter. Tira’s
husband testified that in September of 1989
he and Tira were living on a ranch in Wells,
Nevada; that he was working on the ranch
and she usually worked with him; that they
did not have a car; that he had never been to
a street dance in Bruneau; that during their
7
These contradictions will be discussed in greater detail below. See infra
at 35–38.
 CHARBONEAU V. DAVIS 17

marriage he and Tira had never spent the
night apart except for one week during
Christmas of 1989; that she signed the letter
with her maiden name, which she had not
used as long as he had known her; and that by
September 1989 they had a child.

Id. at 382.
In September 2017, Charboneau submitted a petition for
a writ of habeas corpus in the United States District Court
for the District of Idaho, arguing that the State had violated
Brady by failing to disclose the information summarized in
the Tira Letter “at his original trial.” Because Charboneau
had previously filed an unsuccessful federal habeas petition
in the 1990s, his petition was accompanied by an application
for leave to file a “second or successive” habeas petition.
Under 28 U.S.C. § 2244(b)(3)(A), such a petition may not
be filed in the district court until the petitioner first obtains
an order from the “appropriate court of appeals” that
“authoriz[es] the district court to consider” the petition. A
three-judge panel of the court of appeals, acting within 30
days, “may authorize the filing of a second or successive
[petition] only if it determines that the [petition] makes a
prima facie showing that the [petition] satisfies the
requirements of” the statute. Id. § 2244(b)(3)(C)–(D). As
applicable here, those requirements include a showing that
the “factual predicate for the claim” could not have been
diligently discovered earlier and that the “facts underlying
the claim” establish a sufficient showing as to the
petitioner’s professed actual innocence. Id. § 2244(b)(2)(B).
On September 18, 2018, more than a year after the
application to file a second or successive petition was
transferred to this court, a three-judge panel of this court
18 CHARBONEAU V. DAVIS

granted Charboneau’s application and authorized the filing
of this petition. See Ezell v. United States, 778 F.3d 762,
764–65 (9th Cir. 2015) (holding that § 2244(b)(3)(D)’s 30-
day time limit for the court of appeals to act on such an
application “is hortatory” rather than “mandatory”).
As the district court correctly recognized, this court’s
earlier determination that Charboneau had made a sufficient
prima facie showing concerning the requirements of
§ 2244(b)(2)(B) does not eliminate those requirements from
further consideration. On the contrary, the statute expressly
states that “[a] district court shall dismiss any claim
presented in a second or successive [petition] that the court
of appeals has authorized to be filed unless the applicant
shows that the claim satisfies the requirements of” the
statute. 28 U.S.C. § 2244(b)(4) (emphasis added); see also
United States v. Villa-Gonzalez, 208 F.3d 1160, 1163–64
(9th Cir. 2000) (expressly rejecting, as contrary to
§ 2244(b)(4), the contention that “our grant of permission”
to file a second or successive petition “forecloses the district
court from finding [the petition] does not meet the statutory
requirements”).
Accordingly, the district court considered, in light of the
record as a whole, whether Charboneau’s latest federal
petition met the applicable requirements of 28 U.S.C.
§ 2244(b)(2)(B). As noted, the relevant provision of that
statute precludes a district court from considering the merits
of a “second or successive” habeas petition unless the
petitioner first makes a threshold showing of diligence and
actual innocence. Concluding that Charboneau had failed to
show actual innocence, the district court dismissed the
petition.
 CHARBONEAU V. DAVIS 19

We granted Charboneau’s request for a certificate of
appealability, limited to two issues: (1) “whether
[Charboneau’s] petition meets the standards of 28 U.S.C.
§ 2244(b)(2),” and, if so, (2) “whether the state violated
[Charboneau’s] right to due process by failing to disclose
exculpatory evidence in violation of Brady.” We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review
the district court’s decision de novo. See Villa-Gonzalez,
208 F.3d at 1165.
II
Charboneau does not dispute that his current federal
habeas petition is a “second or successive” petition within
the meaning of 28 U.S.C. § 2244(b)(2) and that he therefore
had to satisfy the requirements of that statute. Specifically,
with respect to a second or successive petition, such as
Charboneau’s, that raises a claim that has not been presented
in a prior petition, § 2244(b)(2) provides as follows:

(2) A claim presented in a second or
successive habeas corpus application under
section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim
relies on a new rule of constitutional law,
made retroactive to cases on collateral
review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and
20 CHARBONEAU V. DAVIS

(ii) the facts underlying the claim, if
proven and viewed in light of the evidence
as a whole, would be sufficient to establish
by clear and convincing evidence that, but
for constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.

28 U.S.C. § 2244(b)(2). By its terms, the statute requires
that such a petition be dismissed unless one of two
alternative threshold showings is made. Charboneau has not
contended that the first alternative—concerning certain
“new rule[s] of constitutional law”—is applicable here, and
we therefore address only the second. Under that latter
alternative, the petitioner’s claim may be considered only if
the petitioner “shows,” id. § 2244(b)(4), that (1) the claim
rests on a newly discovered “factual predicate” that “could
not have been discovered previously through the exercise of
due diligence”; and (2) the “facts underlying the claim”
sufficiently demonstrate the petitioner’s innocence in the
sense described by the statute, id. § 2244(b)(2)(B).
The district court assumed arguendo that the “factual
predicate” of Charboneau’s Brady claim—viz., the
information contained in the Tira Letter and other materials
in the envelope found in the prison—could not have been
diligently discovered earlier, but the court concluded that the
requisite showing as to innocence had not been made. Like
the district court, we find it unnecessary to address the
diligence issue, because we conclude that the new materials
presented by Charboneau, “viewed in light of the evidence
as a whole,” do not suffice to make the showing of actual
innocence required by § 2244(b)(2)(B)(ii).
 CHARBONEAU V. DAVIS 21

A
The standard for showing actual innocence set forth in
§ 2244(b)(2)(B)(ii) was added to that statute by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
Pub. L. No. 104-132, § 106, 110 Stat. 1214, 1220–21 (1996).
To understand the significance of the language chosen by
Congress in defining that standard, it is helpful first to set
forth the principles that governed second or successive
habeas petitions at the time that AEDPA was enacted.
In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme
Court reaffirmed its prior holdings that a federal court could
reach the merits of claims presented in a second or
successive habeas petition only if the petitioner could either
(1) “establish cause and prejudice sufficient to excuse his
failure to present his evidence in support of his first federal
petition” or (2) show that his case fell “within the narrow
class of cases implicating a fundamental miscarriage of
justice.” Id. at 314–15 (simplified). “To ensure that the
fundamental miscarriage of justice exception would remain
‘rare’ and would only be applied in the ‘extraordinary case,’
while at the same time ensuring that the exception would
extend relief to those who were truly deserving, th[e]
[Supreme] Court explicitly tied the miscarriage of justice
exception to the petitioner’s innocence.” Id. at 321
(emphasis added).
Although the Supreme Court’s cases had variously
articulated the showing of actual innocence required to
invoke this miscarriage-of-justice exception, the Schlup
Court endorsed the formulation used in Murray v. Carrier,
477 U.S. 478 (1986), which had stated that a procedurally
defaulted claim could be considered on the merits “in an
extraordinary case, where a constitutional violation has
22 CHARBONEAU V. DAVIS

probably resulted in the conviction of one who is actually
innocent.” Schlup, 513 U.S. at 321 (quoting Carrier, 477
U.S. at 496 (emphasis added)); see also id. at 326–27.
Schlup noted that, in Sawyer v. Whitley, 505 U.S. 333 (1992),
the Court had adopted a “more exacting” standard for
showing “actual innocence” in the context of a claim that,
but for constitutional error, a petitioner would have been
ineligible for the death penalty (as opposed to being innocent
of the underlying crime). Schlup, 513 U.S. at 323 (citing
Sawyer, 505 U.S. at 336). In this latter context, Sawyer “held
that a habeas petitioner ‘must show by clear and convincing
evidence that, but for a constitutional error, no reasonable
juror would have found the petitioner eligible for the death
penalty.’” Id. (quoting Sawyer, 505 U.S. at 336 (emphasis
added by Schlup)). Schlup concluded that Sawyer’s
heightened standard was limited to claims that a petitioner’s
“sentence is too severe” and that the “correspondingly
greater injustice that is implicated by a claim of actual
innocence” of the underlying offense “requires application
of the Carrier standard.” Id. at 325–26 (emphasis added).
Accordingly, Schlup held that the merits of a second or
successive petition could be considered, under the
miscarriage-of-justice exception, if the petitioner “show[s]
that ‘a constitutional violation has probably resulted in the
conviction of one who is actually innocent.’” Id. at 327
(quoting Carrier, 477 U.S. at 496). “To establish the
requisite probability, the petitioner must show that it is more
likely than not that no reasonable juror would have convicted
him in the light of the new evidence.” Id.
In enacting AEDPA, Congress took direct aim at
Schlup’s standard for allowing merits consideration of
second or successive petitions. Congress abrogated Schlup’s
core holding by expressly adopting the Sawyer “clear and
 CHARBONEAU V. DAVIS 23

convincing evidence” standard that Schlup had rejected. See
28 U.S.C. § 2244(b)(2)(B)(ii). In addition, Congress
required the petitioner “to satisfy a diligence requirement
that did not exist prior to AEDPA’s passage.” McQuiggin v.
Perkins, 569 U.S. 383, 396 (2013). As we summarized in
our en banc decision in Cooper v. Woodford, 358 F.3d 1117
(9th Cir. 2004):

The AEDPA requirements for a second or
successive application are stricter than the
Schlup standard in two ways. First,
§ 2244(b)(2)(B)(i) requires that “the factual
predicate for the claim could not have been
discovered previously through the exercise of
due diligence.” There is no requirement
under Schlup that the factual claim was not
discoverable through the exercise of due
diligence. Second, § 2244(b)(2)(B)(ii)
requires that “the facts underlying the claim,
if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.” (Emphasis added.)
Schlup requires only that an applicant show
that it is “more likely than not” that no
reasonable fact-finder would have found him
guilty.

Id. at 1119.
Given that “the Schlup standard” is itself “demanding
and permits review only in the extraordinary case,” House v.
24 CHARBONEAU V. DAVIS

Bell, 547 U.S. 518, 538 (2006) (citations and internal
quotation marks omitted), it is unsurprising that
§ 2244(b)(2)(B)’s “stricter” standard, see Cooper, 358 F.3d
at 1119, has been described as “almost insurmountable.”
Douglas v. Workman, 560 F.3d 1156, 1192–93 (10th Cir.
2009); see also Brown v. Muniz, 889 F.3d 661, 675 (9th Cir.
2018) (“[F]ew applications to file second or successive
petitions survive § 2244(b)’s substantive and procedural
barriers.” (simplified)). But § 2244(b)(2)(B)(ii)’s actual
innocence standard is not wholly insurmountable, and so it
remains for us to consider whether this is the truly
extraordinary case in which the petitioner has made the
requisite showing.
B
However, before applying AEDPA’s stricter actual
innocence standard to the specific facts of this case, we must
address several further issues about how that standard is to
be applied.
1
First, the parties disagree as to the scope of the evidence
that we should consider in applying § 2244(b)(2)(B)(ii). The
statute says that we must consider whether the “facts
underlying the claim, if proven and viewed in the light of the
evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty
of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii)
(emphasis added). Charboneau urges us to follow the Tenth
Circuit’s decision in Case v. Hatch, 731 F.3d 1015 (10th Cir.
2013), which held that “the universe of facts that enter into
the subparagraph (B)(ii) analysis consists only of evidence
presented at the time of trial, adjusted for evidence that
 CHARBONEAU V. DAVIS 25

would have been admitted or excluded ‘but for constitutional
error’ during trial proceedings.” Id. at 1038. Under that
standard, Charboneau argues, we may not consider the
testimony that he offered during a pretrial hearing in
November 1984 that was not presented at his subsequent
trial. We reject this contention.
In Case, the Tenth Circuit held that, in the context of a
second or successive petition alleging a Brady violation, the
court could only consider the exculpatory evidence allegedly
improperly withheld and the evidence presented at trial—
meaning that the court could not consider additional
exculpatory evidence, such as “subsequently produced DNA
evidence” and “post-trial witness recantations” that were
unconnected to any alleged constitutional error. 731 F.3d at
1038–39. Case based this holding on two aspects of the
language in § 2244(b)(2)(B)(ii) that require a nexus between
the constitutional claim and the showing of actual innocence.
Specifically, (1) the statute requires the petitioner to show
that “the facts underlying the claim . . . would be sufficient
to establish” the petitioner’s innocence “by clear and
convincing evidence”; and (2) the statute provides that the
standard for showing the petitioner’s innocence is that, “but
for constitutional error, no reasonable factfinder would have
found the [petitioner] guilty of the underlying offense.”
28 U.S.C. § 2244(b)(2)(B)(ii) (emphasis added); see also
Case, 731 F.3d at 1033–34. Given this required linkage
between the facts underlying the claim of constitutional error
and the showing of actual innocence, the Tenth Circuit
reasoned, “the inquiry” under § 2244(b)(2)(B)(ii) must be
understood to “exclude[] any consideration of evidence not
rooted in constitutional error at trial.” Id. at 1034.
We agree with Case insofar as it held that the statutory
language unambiguously requires a nexus between the new
26 CHARBONEAU V. DAVIS

factual predicate underlying the constitutional claim and the
showing of actual innocence. As we have explained, the
ultimate question under the statute is whether, “but for
constitutional error,” the “facts underlying the claim . . .
would be sufficient to establish by clear and convincing
evidence” that no reasonable factfinder would have
convicted. 28 U.S.C. § 2244(b)(2)(B)(ii) (emphasis added).
Thus, it would not be sufficient, under § 2244(b)(2)(B)(ii),
to present an immaterial constitutional error coupled with an
independent showing of actual innocence. For example, a
petitioner could not satisfy § 2244(b)(2)(B)(ii) by
(1) presenting a claim that a newly discovered recording of
his post-arrest stationhouse interview proves that certain
relatively trivial statements introduced at trial were not
voluntarily made; and (2) presenting new DNA evidence
attesting to his innocence. Although, in this example, the
petitioner’s DNA evidence might convincingly establish his
actual innocence, the statute’s requirements would not be
satisfied, because the “facts underlying the claim” of a
coerced but trivial statement would not “be sufficient to
establish” his innocence in the sense that, “but for” that
statement, no reasonable jury would have convicted. Id.
But it does not follow from this premise that, in assessing
whether this statutory nexus requirement has been satisfied,
the federal habeas court should close its eyes to any other
evidence in the record. On that specific question, the
statutory language points in the opposite direction. It says
that, in determining whether “the facts underlying the claim”
have the required connection to a showing of actual
innocence, the court must view those facts “in light of the
evidence as a whole.” 28 U.S.C. § 2244(b)(2)(B)(ii)
(emphasis added). Nothing in the broad wording of that
italicized phrase suggests that, in determining whether the
 CHARBONEAU V. DAVIS 27

required nexus has been shown, a court may consider only
the “facts underlying the claim” and “the trial evidence as a
whole.” Had Congress intended to impose such a limitation,
it could easily have added that simple word. But it did not
do so, and we cannot rewrite the statute to insert an
additional restriction that Congress omitted.
Congress’s failure to add any such limitation is all the
more significant because the Schlup standard that Congress
consciously amended in § 2244(b)(2)(B)(ii) clearly did not
contain such a limitation. As Schlup itself explained:

The Carrier standard is intended to focus the
inquiry on actual innocence. In assessing the
adequacy of petitioner’s showing, therefore,
the district court is not bound by the rules of
admissibility that would govern at trial.
Instead, the emphasis on “actual innocence”
allows the reviewing tribunal also to
consider the probative force of relevant
evidence that was either excluded or
unavailable at trial. Indeed, with respect to
this aspect of the Carrier standard, we
believe that Judge Friendly’s description of
the inquiry is appropriate: The habeas court
must make its determination concerning the
petitioner’s innocence “in light of all the
evidence, including that alleged to have been
illegally admitted (but with due regard to any
unreliability of it) and evidence tenably
28 CHARBONEAU V. DAVIS

claimed to have been wrongly excluded or to
have become available only after the trial.”

513 U.S. at 327–28 (emphasis added) (citation omitted); see
also House, 547 U.S. at 538 (“Schlup makes plain that the
habeas court must consider all the evidence, old and new,
incriminating and exculpatory, without regard to whether it
would necessarily be admitted under rules of admissibility
that would govern at trial.” (citations and internal quotation
marks omitted)); Lee v. Lampert, 653 F.3d 929, 938 (9th Cir.
2011) (en banc) (same).
Although, as we have noted, Congress included language
in § 2244(b)(2)(B)(ii) clarifying that the showing of actual
innocence must be tied to the “facts underlying the claim,”
it did not add any language that can be said to have otherwise
overturned Schlup’s clear holding that the requisite standard
must be applied “in light of all the evidence” in the record,
regardless of whether it was presented at trial. Schlup, 513
U.S. at 328 (emphasis added) (citation omitted). On the
contrary, Congress used the comparable phrase “in light of
the evidence as a whole,” 28 U.S.C. § 2244(b)(2)(B)(ii),
which strongly reinforces the conclusion that
§ 2244(b)(2)(B)(ii) leaves that specific aspect of Schlup
undisturbed. See United States v. MacDonald, 641 F.3d 596,
612 (4th Cir. 2011) (likewise concluding that
§ 2244(b)(2)(B)(ii) preserves this aspect of Schlup because,
“by its plain language, ‘the evidence as a whole’ means, in
the equivalent language of Schlup, ‘all the evidence’”
(quoting Schlup, 513 U.S. at 328)). Because “Congress
legislates against the backdrop of existing law,” McQuiggin,
569 U.S. at 398 n.3, Congress’s choice of language confirms
its intention to retain Schlup’s rule that, in applying the
 CHARBONEAU V. DAVIS 29

requisite actual innocence standard, all evidence is to be
considered.
Moreover, adopting the Tenth Circuit’s contrary
construction of the statute would thwart the objectives of
§ 2244(b)(2)(B)(ii)’s demanding standard, which narrowly
defines the class of cases in which refusal to entertain a
second or successive petition could be said to result in a
“fundamental miscarriage of justice.” Schlup, 513 U.S. at
324. As the Supreme Court explained in Schlup, the already
stringent pre-AEDPA actual innocence standard sought to
“balance the societal interests in finality, comity, and
conservation of scarce judicial resources with the individual
interest in justice that arises in the extraordinary case” of “a
substantial claim that constitutional error has caused the
conviction of an innocent person.” Id. Those weighty
interests in finality would be seriously undermined by a rule
that would require courts to close their eyes to substantial
evidence of guilt simply because that evidence was not
presented at trial and does not form part of the factual
predicate for the petitioner’s new claim. Put simply, the
Tenth Circuit’s constrictive view of the evidence that may
be considered would require a court to treat as “actually
innocent,” and deserving of a further habeas petition, a
petitioner who, based on other evidence, was known to be
actually guilty. Conversely, we also see no reason why, in
attempting to show that the newly discovered factual
predicate underlying the constitutional error has the requisite
nexus with the claim of actual innocence, a petitioner cannot
bolster that nexus showing with additional evidence of
actual innocence. Either way, the non-textual constraint that
Case places on the evidence that may be considered under
§ 2244(b)(2)(B)(ii) would distort the application of the
30 CHARBONEAU V. DAVIS

statutory standard in ways that threaten to significantly
impede the statute’s objectives.
Accordingly, we hold that the statutory command to
“view[]” the “facts underlying the claim . . . in light of the
evidence as a whole,” 28 U.S.C. § 2244(b)(2)(B)(ii),
requires the court to consider the same scope of evidence as
described under the Schlup test—namely, “all the evidence,
old and new, incriminating and exculpatory, without regard
to whether it would necessarily be admitted under rules of
admissibility that would govern at trial.” House, 538 U.S. at
538 (citations and internal quotation marks omitted). On that
point, we align ourselves with the Fourth and Sixth Circuits.
See MacDonald, 641 F.3d at 612 (stating that “a court must
make its § 2244(b)(2)(B)(ii) . . . determination—unbounded
by the rules of admissibility that would govern at trial—
based on all the evidence, including that alleged to have been
illegally admitted and that tenably claimed to have been
wrongly excluded or to have become available only after the
trial” (simplified)); Clark v. Warden, 934 F.3d 483, 496 n.5
(6th Cir. 2019) (expressly agreeing with MacDonald on this
point).
2
Second, we address what the statute means when it says
that, in assessing the petitioner’s showing of actual
innocence, the court must assume that “the facts underlying
the claim” have been “proven.” 28 U.S.C.
§ 2244(b)(2)(B)(ii) (requiring the court to consider what
would be shown by “the facts underlying the claim, if proven
and viewed in light of the evidence as a whole”).
It is clear from the statutory context that the “facts” being
referenced are the specific evidentiary facts underlying the
claim (e.g., that a particular witness has given statements
 CHARBONEAU V. DAVIS 31

recanting prior testimony or that a particular forensic test
produced specific results under specified conditions) and not
the ultimate “facts” (e.g., that the petitioner did not commit
the criminal acts). In particular, the statute’s focus on
evidentiary facts is clear from its express instruction to
consider “the facts underlying the claim . . . in light of the
evidence as a whole.” 28 U.S.C. § 2244(b)(2)(B)(ii). The
requirement to consider the petitioner’s newly developed
“facts” in light of the other available “evidence” denotes an
apples-to-apples comparison of competing items of evidence.
By contrast, taking the ultimate facts as “proven” would
render the strictures of § 2244(b)(2)(B)(ii) a dead letter: if,
at the outset of the statutory inquiry, the ultimate fact of
innocence is itself assumed to be “proven,” then an outcome
in the petitioner’s favor would be essentially foreordained.
That is plainly not what the statute means.
Moreover, Schlup similarly described the actual
innocence inquiry as involving a weighing of competing
items of evidence, and there is no indication in the language
of § 2244(b)(2)(B)(ii) that Congress sought to alter that
aspect of the Schlup test. Specifically, Schlup states that the
petitioner must “support his allegations of constitutional
error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence—that was not presented at trial.”
513 U.S. at 324 (emphasis added). The habeas court then
must “consider the probative force” of that evidence “in light
of all the evidence,” and in doing so it must consider the
“unreliability” of any particular items of new evidence. Id.
at 327–28. Because the Schlup test explicitly requires the
court to assess the probative value and reliability of the
petitioner’s evidence in light of all of the evidence, that test
obviously does not require the court to take as true the
32 CHARBONEAU V. DAVIS

ultimate facts that the petitioner’s evidence seeks to prove.
And because Congress did not add any language to the
statute that would negate this aspect of the Schlup test, we
conclude that the “facts” that are to be taken as “proven”
under § 2244(b)(2)(B)(ii) are not the ultimate facts, but
simply the evidentiary proffer underlying the claim—
namely, that a particular witness made a given statement at
a given time or that a specific document contains certain
statements. Accordingly, a habeas court remains free, after
taking those particular proffered “facts” as “proven,” to then
assign little probative weight to those statements, either
because they are ultimately deemed to be unreliable or
because their probative force is outweighed by other
evidence.
One final issue concerns the extent to which, in
evaluating the foundational reliability of the petitioner’s new
evidence, a federal habeas court applying § 2244(b)(2)(B)
should give deference to any findings concerning
authenticity that were made by the state courts. In King v.
Trujillo, 638 F.3d 726 (9th Cir. 2011), we held that the
presumption of correctness that applies to “a determination
of a factual issue made by a State court” under 28 U.S.C.
§ 2254(e)(1) applies when a federal court is assessing
whether a second or successive habeas petition meets the
requirements of § 2244(b)(2)(B). See King, 638 F.3d at 732
& n.30 (applying § 2244(e)(1)’s presumption of correctness
to state court factual findings in considering whether the
petitioner had met the diligence requirement of
§ 2244(b)(2)(B)(i)). Accordingly, we conclude a
presumption of correctness attaches under § 2254(e)(1) to
any specific factual findings made by the state court that bear
on the reliability or authenticity of particular items of
evidence that are presented to a federal court that is charged
 CHARBONEAU V. DAVIS 33

with applying § 2244(b)(2)(B)(ii)’s actual innocence
standard.
III
Having set forth at length what § 2244(b)(2)(B) requires,
we now apply those standards to Charboneau’s claimed
showing that he is actually innocent of first-degree murder.
Charboneau argues that, but for the alleged Brady violation,
every reasonable factfinder would have had reasonable
doubt as to (1) whether Charboneau or Tiffnie fired the fatal
shot; or (2) whether, if Charboneau did fire the fatal shot, he
intended to kill her.
As an initial matter, we note that only the “Tira Letter”
provides any potential factual support for Charboneau’s
claim of actual innocence. The remaining documents—the
“Balzer Statement” allegedly prepared by a deputy sheriff;
the “Shedd Note” prepared by Shedd; the “Shedd Emails”
that purportedly recount email communications between
Shedd and a supervisor; and the “Gold Statement,” an
affidavit assertedly signed by a since-deceased sheriff—bear
only on Charboneau’s claim that the allegedly exculpatory
Tira Letter was suppressed by state officials. 8 Accordingly,
we focus on the contents of the Tira Letter.
The state trial court specifically found that the Tira Letter
was a copy of a lost original that was actually handwritten
by Tira. The Idaho Supreme Court did not directly reject
that finding, but it pointedly declined to accept the contents
of that letter as persuasive or reliable. On the contrary, the
state high court noted at length that the contents of the letter
were contradicted by many other items of evidence in the
8
As we note below, however, the forged nature of some of these
documents provides a consideration that may weigh against a finding of
actual innocence here. See infra at 38–39.
34 CHARBONEAU V. DAVIS

record, including “Charboneau’s version of what occurred,”
the forensic evidence, and the testimony of Tira’s husband.
See Charboneau, 395 P.3d at 382, 387. As to the latter point,
Charboneau concedes on appeal that the “Idaho Supreme
Court rejected the state district court’s finding that Tira’s
husband’s testimony was not credible.” Accordingly, we
presume, in accordance with the state court’s findings, only
that Tira authored the Tira Letter. Beyond that, the Idaho
Supreme Court simply noted the multiple contradictions
between the Tira Letter and the other record evidence, and it
did not purport to make affirmative factual findings
resolving those contradictions one way or the other.
Although the trial court had at least arguably partially made
such a finding in specifically rejecting the contrary
testimony of Tira’s husband, the Idaho Supreme Court in
turn rejected that finding as unsupported. Accordingly, in
applying § 2244(b)(2)(B)(ii), we presume that Tira did in
fact author the letter, but we independently assess its
ultimate reliability and probative value.
For several reasons, we conclude that Charboneau has
not shown by clear and convincing evidence that the
statements recounted in the Tira Letter, considered in light
of all the evidence, suffice to show that no reasonable
factfinder would have convicted him of first-degree murder.
First, a reasonable factfinder could readily conclude that
the veracity and reliability of Tira’s assertions in the letter
are undermined by her husband’s testimony in the state post-
conviction proceedings. Tira claimed in the letter, which
was dated September 6, 1989 and postmarked September 7,
1989, that she was in Bruneau, Idaho for a street dance and
would return to Jerome, Idaho “early next week.”
Charboneau, 395 P.3d at 382. But that would have been
impossible, given that the referenced street dance did not
 CHARBONEAU V. DAVIS 35

occur until ten days later. Id. Moreover, “Tira’s husband
testified that in September of 1989 he and Tira were living
on a ranch in Wells, Nevada,” and not in Jerome, Idaho. Id.
Furthermore, he testified that he never went to a street dance
in Bruneau and that he did not spend a night away from Tira
during September 1989. Id. He also found it odd that Tira
had “signed the letter with her maiden name, which she had
not used as long as he had known her.” Id. Even though we
are bound by the state trial court’s finding that Tira did write
the letter, these contradictions raise serious questions about
her overall credibility and her state of mind at the time she
wrote the letter. A reasonable factfinder could rely on these
discrepancies as a basis for rejecting the substantive
allegations in the letter. See Modern Mills, Inc. v. Havens,
739 P.2d 400, 404 (Idaho Ct. App. 1987) (noting that “the
fact-finder may reject the additional, noncorroborated
testimony of an impeached witness” (emphasis omitted)).
Second, as the Idaho Supreme Court correctly noted,
there are numerous inconsistencies between the Tira Letter
and Charboneau’s own testimony at the pretrial hearing. The
Tira Letter claims that, on the morning of the murder on
Sunday, July 1, 1984, Charboneau was in Marilyn’s house
and was present when Marilyn gave Tira a new .22-caliber
rifle as a graduation present. Charboneau, 395 P.3d at 383,
386. By contrast, Charboneau testified that he had been
staying in the “tack room” of the barn since Thursday with
the knowledge of Marilyn but not of her daughters and that
Marilyn did not leave the rifle with Tira on Sunday morning.
Id. at 384–86. The Idaho Supreme Court also noted that
“Tira wrote that Tiffnie took Tira’s .22 rifle, gave her their
mother’s .22 pistol, and [that] they both went outside and hid
behind the sheep wagon,” but that “Charboneau’s version
was that only Tiffnie came out of the house; she had a .22
36 CHARBONEAU V. DAVIS

pistol, not the rifle; and she did not hide behind the sheep
wagon.” Id. at 386. Importantly, Tira’s letter only once
mentions Tiffnie shooting, saying that she “heard Tif shoot
the rifle while [they] were behind the sheep wagon.” Id. at
384. By contrast, Charboneau testified that Tiffnie shot
Marilyn with a pistol and that she did so “standing up above
her mother” while she pleaded, “Tiffy, I’m your mother.” Id.
at 386. These numerous inconsistencies would provide an
ample reasonable basis for a factfinder to choose to
disbelieve the Tira Letter, Charboneau’s testimony, or both.
Third, the 1989 Tira Letter differed in numerous respects
from Tira’s testimony at the 1985 trial. As we have observed
in applying the Schlup standard, “[w]itness recantations are
generally viewed with suspicion.” Gable v. Williams, 49
F.4th 1315, 1323 (9th Cir. 2022). “To measure a
recantation’s likely effect on a juror,” we may consider its
“context” and “timing,” as well as the surrounding
“circumstances.” Id. At trial, Tira testified that Tiffnie took
a pistol, not a rifle, and she did not say anything about Tira
herself having a firearm. Charboneau, 395 P.3d at 382–83.
Moreover, she testified that the single shot Tiffnie fired by
the sheep wagon occurred when the pistol went off while
Tiffnie was holding it while “[h]er hands were behind her
back.” Id. at 383 (emphasis added). By contrast, in the
letter, Tira stated that she heard “Tiffnie shoot the rifle” and
that the sound so startled her that Tira then “accidentally”
fired the “pistol.” Id. at 384 (emphasis added). Considering
the other potential errors in the Tira Letter noted earlier, a
factfinder would have reasonable grounds to credit Tira’s
trial testimony over her unsworn, years-after-the-fact partial
recantation.
Moreover, these various conflicts between the Tira
Letter and the testimony of Tira’s husband, Charboneau, and
 CHARBONEAU V. DAVIS 37

Tira herself must also be considered in light of the other
evidence of guilt in the record. Gable, 49 F.4th at 1323. On
June 25, 1984—less than a week before the murder—
Charboneau was charged with having kidnapped Marilyn
shortly after their divorce was finalized. Charboneau, 395
P.3d at 381 (citation omitted). Three days later, Charboneau
bought a .22 caliber Remington rifle “from a hardware store
in Gooding, Idaho.” Id.; see also id. at 384. When sheriff’s
deputies arrived after the murder, they found Charboneau “in
a field near the barn with a .22 caliber rifle lying nearby.”
Id. (citation omitted). Moreover, as the Idaho Supreme
Court noted in summarizing Charboneau’s testimony at the
pretrial hearing:

Charboneau admitted shooting at Marilyn
with the Remington rifle while she was
unarmed and running away from him; he
admitted that he wounded her after which she
was sitting on the ground; and he admitted
that he had sole control of the Remington rifle
from the time that he shot at her to the time
that he threw it into the wheat field.

Id. at 392 (emphasis added).
As to the seven bullet fragments found in Marilyn’s
body, ballistics evidence at trial was able to identify all seven
as being from Remington-brand bullets, and five of them
were specifically identified as having been fired from the
Remington rifle found near Charboneau in the field.
Although the remaining two could not be conclusively
identified as having come from that particular weapon, the
ballistics expert was able to definitively exclude the Ruger
38 CHARBONEAU V. DAVIS

pistol as the weapon that fired one of those two bullets. 9 See
supra at 8–9 & n.6. Further, in her phone call to the police
shortly after the shooting, Tiffnie stated that Charboneau had
shot her mother. Charboneau, 395 P.3d at 381.
Finally, we note that the other materials found in the
envelope containing the Tira Letter provide, if anything,
additional corroboration of Charboneau’s consciousness of
guilt. The state trial court found, and the Idaho Supreme
Court agreed, that the “Balzer Statement” was a forgery. See
Charboneau, 395 P.3d at 388. The trial court found that
Shedd, a library specialist at the state prison, forged the
letter; that he had assistance from another person in doing
so; but that “no evidence points to Charboneau, or anyone
sympathetic to him, as the culprit.” The Idaho Supreme
Court rejected this latter finding, instead holding that “the
only person” who could have helped Shedd forge the
statement “was Charboneau.” 395 P.3d at 388. The state
trial court also held that Charboneau had failed to establish
that the “Shedd Emails” were genuine. The court found that
“the evidence points” to the “inference” that these emails
“were prepared or doctored by someone with access” to the
prison email system and computers, but that there was “no
evidence” suggesting that they were “prepared by anyone
friendly to Charboneau.” Once again, the Idaho Supreme
Court rejected the last part of this finding, instead stating that
9
The Idaho Supreme Court was therefore plainly incorrect in stating that
the “forensic evidence showed that [Marilyn] was shot at least fourteen
times with that rifle.” 395 P.3d at 392. The forensic evidence did show
that Marilyn had been shot at least 14 times, but only seven bullet
fragments were recovered from her body, and only five of those seven
were definitively tied to Charboneau’s rifle. See supra at 8–9 & n.6.
Counsel for the State acknowledged at oral argument in this court that
the Idaho Supreme Court’s opinion was wrong in stating that 14 shots
had been tied to the Remington rifle.
 CHARBONEAU V. DAVIS 39

“Shedd had access to the e-mail system, and he forged the
Balzer Statement to benefit Charboneau.” 395 P.3d at 389
(emphasis added). For the reasons we explained earlier, a
presumption of correctness attaches to the resulting specific
findings of the state courts that (1) Charboneau assisted
Shedd in preparing a forged document in support of
Charboneau’s claim that the Tira Letter was suppressed; and
(2) Shedd could have doctored the “Shedd Emails” to benefit
Charboneau. Moreover, in light of Charboneau’s
involvement in the former forgery by Shedd, a reasonable
trier could infer that Charboneau was also involved in
Shedd’s latter doctoring of evidence. And in deciding how
much probative weight to give to the Tira Letter in light of
all of the other evidence, a reasonable factfinder could
readily conclude that Charboneau’s participation with Shedd
in the creation of false evidence is an additional fact that
suggests a consciousness of guilt on Charboneau’s part. See
State v. Ehrlick, 354 P.3d 462, 479 (Idaho 2015) (“Evidence
which tends to show that the accused has attempted to
fabricate or procure false evidence is admissible as showing
a consciousness of guilt.” (simplified)).
Taking all of this evidence together, we conclude that
Charboneau has failed to show that the statements recounted
in the Tira Letter “would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found [him] guilty” of
first-degree murder. 28 U.S.C. § 2244(b)(2)(ii). Given the
uncontested evidence that Charboneau shot Marilyn
multiple times; his statements admitting possession of the
rifle at the relevant times; the forensic evidence tying at least
five shots to that rifle; and the substantial conflicts between
the Tira Letter and the testimony of Tira herself, her
husband, and Charboneau, we hold that the Tira Letter’s
40 CHARBONEAU V. DAVIS

statements lack sufficient probative force and reliability to
establish—much less clearly and convincingly—that no
reasonable factfinder would have convicted Charboneau.
Accordingly, Charboneau failed to meet the threshold
requirement of § 2244(b)(2)(B)(ii). The district court
therefore properly dismissed his petition without reaching
the merits of his Brady claim.
AFFIRMED.