Lee v. Lampert

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD R. LEE,  No. 09-35276
Petitioner-Appellee,
v.  D.C. No.
1:02-cv-00300-CL
ROBERT O. LAMPERT,
OPINION
Respondent-Appellant.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted
October 5, 2009—Portland, Oregon

Filed July 6, 2010

Before: Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges, and Charles R. Wolle,*
Senior District Judge.

Opinion by Judge O’Scannlain;
Concurrence by Judge N.R. Smith

*The Honorable Charles R. Wolle, United States District Judge for the
Southern District of Iowa, sitting by designation.

9515
9518 LEE v. LAMPERT

COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender of
Oregon, argued the cause for the petitioner-appellee and filed
the briefs. Lynn Deffebach, Research and Writing Attorney,
also was on the briefs.

Janet A. Klapstein, Senior Assistant Attorney General of Ore-
gon, argued the cause for the respondent-appellant and filed
the briefs. John R. Kroger, Attorney General, Jerome Lidz,
Solicitor General, Carolyn Alexander, Senior Assistant Attor-
 LEE v. LAMPERT 9519
ney General, and Erin C. Lagesen, Senior Assistant Attorney
General, also were on the briefs.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether to recognize a judge-made excep-
tion to the statute of limitations for federal habeas relief in the
case of a state prisoner who makes a showing of actual inno-
cence in his original petition.

I

An Oregon state court jury convicted Richard Lee of two
counts of first-degree sexual abuse and two counts of sodomy
of a four-year-old named Matthew. Lee appealed, but his
counsel filed the Oregon equivalent of an Anders brief, and
the Oregon Court of Appeals affirmed the conviction. Lee did
not seek review in the Oregon Supreme Court, so direct
review became final on September 30, 1996.

Lee timely filed for state postconviction relief. He alleged,
inter alia, that he received ineffective assistance of counsel
regarding the initial exclusion of evidence concerning another
suspect, the appeal of the same issue, the failure to call an
expert witness on the reliability of child testimony, and the
calling of witnesses harmful to the defense. But his petition
was denied. The Oregon Court of Appeals affirmed, and the
Oregon Supreme Court denied review. State postconviction
proceedings thus became final on September 24, 2001.

Lee petitioned for habeas relief in federal district court,
again alleging, inter alia, ineffective assistance of counsel.
Initially, the district court, relying on a magistrate judge’s rec-
ommendation that Lee did not appeal the state trial court’s
9520 LEE v. LAMPERT
denial of postconviction relief, dismissed his petition as
untimely under the one-year federal statute of limitations for
seeking federal habeas relief. 28 U.S.C. § 2244(d)(1). We
reversed. Lee v. Lampert, 92 F. App’x 532 (9th Cir. 2004).
Lee then filed an amended petition in 2005, which was held
in abeyance pending determination of the retroactivity of
Crawford v. Washington, 541 U.S. 36 (2004). After resolution
of that issue, the magistrate judge again recommended deny-
ing the habeas petition.

But this time the district court disagreed. After conducting
several evidentiary hearings over the fall and winter of 2008,
it granted the petition for a writ of habeas corpus on March
24, 2009, finding that Lee established actual innocence and
ineffective assistance of counsel and ordering Oregon to
release or to retry Lee. Lee v. Lampert, 607 F. Supp. 2d 1204,
1221-22, 1226 (D. Or. 2009). The State timely appealed and
a motions panel stayed the district court order, placing the
case on expedited calendar for our review.

II

The State contends that Lee’s petition for a writ of habeas
corpus is simply time-barred. Lee responds that the district
court properly applied an “actual innocence” exception to the
one-year statute of limitations for his original petition.

A

[1] We begin, as always, with the text of the statute.
AEDPA provides that “[a] 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1). The statute specifies that the one-year
period runs from the latest of four dates:

(A) the date on which the judgment became final
by the conclusion direct review or the expiration of
the time for seeking such review;
 LEE v. LAMPERT 9521
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
State action;

(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or

(D) the date on which the factual predicate of the
claim or claims presented could have been discov-
ered through the exercise of due diligence.

Id. § 2244(d)(1)(A)-(D) (emphases added). The limitations
period is tolled for “[t]he time during which a properly filed
application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending.”
Id. § 2244(d)(2).

[2] So written, the statute establishes three “very specific
exceptions” to the primary date for the running of the limita-
tions period, that is, the date on which direct review becomes
final. David v. Hall, 318 F.3d 343, 346 (1st Cir. 2003); Felder
v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (similarly con-
trasting the date on which direct review becomes final and the
other “three circumstances”). Those exceptions involve state-
created impediments, new constitutional rights, and diligent
discovery of new facts. 28 U.S.C. § 2244(d)(1)(B)-(D). Nota-
bly absent from this enumeration of exceptions is an “actual
innocence” exception.

B

[3] The parties do not dispute that Lee did not timely file
his federal habeas petition, and they are correct. Lee filed for
9522 LEE v. LAMPERT
state postconviction relief nearly a year and a half after his
direct appeal became final.1 Then, after his state postconvic-
tion relief proceedings ended, during the pendency of which
the limitations period is tolled,2 Lee waited more than six
months to file for federal habeas relief. All told, Lee filed his
federal habeas petition well after the one-year statute of limi-
tations had expired. Lee does not allege, with good reason,
that one of the other start dates for the statute of limitations
is applicable: the state created an impediment to filing, 28
U.S.C. § 2244(d)(1)(B), a new constitutional right relevant to
his case had been announced, id. § 2244(d)(1)(C), or he dis-
covered new facts through the exercise of due diligence. Id.
§ 2244(d)(1)(D).

[4] Despite his untimeliness, the district court held, and
Lee maintains in response to the State’s argument, that he is
entitled to have the claims in his original petition heard on the
merits if he makes a showing of actual innocence pursuant to
Schlup v. Delo, which allowed such a gateway through limita-
tions on second or successive habeas petitions. 513 U.S. 298,
315 (1995); see House v. Bell, 547 U.S. 518, 537 (2006)
(applying gateway to exhaustion requirements). The question
for us is whether there also is such a “gateway” actual inno-
cence exception through the statute of limitations for original
petitions. This is a question of first impression in our circuit.
Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2002)
(“express[ing] no opinion” on “whether surviving the rigors
of this [Schlup] gateway has the consequence of overriding
1
Lee filed for state postconviction relief on February 23, 1998, more
than sixteen months after direct review of his conviction became final on
September 30, 1996. While timely for state purposes, such was not within
the one-year limit required by AEDPA.
2
The parties dispute exactly how late Lee has filed. The state argues that
he filed five years late because the limitations period is not tolled during
the pendency of state postconviction relief initially sought after the one-
year statute of limitations. Lee responds that it is so tolled. Ultimately, this
dispute does not matter, so we decline to evaluate the parties’ claims.
 LEE v. LAMPERT 9523
AEDPA’s one-year statute of limitation, a legal question not
yet decided by this Circuit or the Supreme Court.”).

But we do not write on a blank slate. Four circuits have
held that there is no actual innocence exception serving as a
gateway through AEDPA’s statute of limitations to the merits
of a petitioner’s constitutional claims in original petitions,
Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir. 2005)
(Easterbrook, J.); David v. Hall, 318 F.3d 343, 347 (1st Cir.
2003) (Boudin, J.); Cousin v. Lensing, 310 F.3d 843, 849 (5th
Cir. 2002) (Smith, J.); Flanders v. Graves, 299 F.3d 974, 976-
78 (8th Cir. 2002) (R. Arnold, J.), while one circuit has held
that there is such an exception. Souter v. Jones, 395 F.3d 577,
585 (6th Cir. 2005) (Moore, J.).

C

In Holland v. Florida, No. 09-5327, 2010 WL 2346549
(U.S. June 14, 2010), the Court considered whether AEDPA’s
statute of limitations period is subject to equitable tolling. Id.
at *9-*12. Agreeing with all eleven circuits, the Court held
that it is. The Court began its analysis by reiterating the well-
recognized principle that nonjurisdictional statutes of limita-
tion are subject to a rebuttable presumption in favor of equita-
ble tolling. Id. at *9-*10. Because AEDPA’s statute of
limitations is nonjurisdictional, the only inquiry before the
Court was whether there was sufficient evidence to rebut the
presumption. The Court considered various textual arguments,
such as the canon of inclusio unius est exclusio alterius, but
concluded that there was not sufficient evidence to overcome
the presumption. Id. at *10-*12.

Here, by contrast, there is no presumption that nonjurisdic-
tional statutes of limitations are normally subject to an actual
innocence exception. No court has ever held that there is such
a presumption, and for good reason: an actual innocence
exception would not make sense in the context of any statute
of limitations except the one at issue here. Nor is the actual
9524 LEE v. LAMPERT
innocence exception a species of equitable tolling, such that
the presumption in favor of equitable tolling entails a pre-
sumption in favor of an actual innocence exception. Quite the
contrary, the actual innocence exception is not a type of toll-
ing because it does not involve extending a statutory period
for a particular amount of time. Moreover, the actual inno-
cence exception has nothing to do with failing to meet a dead-
line because of extraordinary circumstances, which is the
situation addressed by equitable tolling. Id. at *12. Our
inquiry, therefore, is not limited to whether there is sufficient
evidence to rebut a presumption. Rather, we must determine
the best reading of the statute in the first instance.

[5] The omission of “actual innocence” from the enumer-
ated list of exceptions in the statutory text is significant, as
four of our sister circuits have held. Since “section 2244(d)
comprises six paragraphs defining its one-year limitations
period in detail and adopting very specific exceptions,” the
First Circuit reasoned, “Congress likely did not conceive that
the courts would add new exceptions and it is even more
doubtful that it would have approved of such an effort.”
David, 318 F.3d at 346 (emphasis added). It is not our place
to “engraft an additional judge-made exception onto congres-
sional language that is clear on its face.” Flanders, 299 F.3d
at 977. We “cannot alter the rules laid down in the text.”
Escamilla, 426 F.3d at 872. The “one-year limitations period
established by § 2244(d) contains no explicit exemption for
petitions claiming actual innocence,” and we decline to add
one. Cousin, 310 F.3d at 849.3

[6] Our reluctance to add our own judge-made exception
to a statutory enumeration of exceptions accords with the
3
Indeed, it would be unconstitutional for us to do so, as federal courts
do not have inherent power to issue the writ of habeas corpus. Ex parte
Bollman, 4 Cranch 75, 94 (1807) (“[T]he power to award the writ by any
of the courts of the United States, must be given by written law.”); Schlup,
513 U.S. at 350 (Scalia, J., dissenting).
 LEE v. LAMPERT 9525
well-established interpretive canon of expressio unius est
exclusio alterius, that is, the express mention of one thing
excludes all others. As the Court recently remarked, while
refusing to create another exception to toll a different statute
of limitations when the statute at issue already included an
explicit exception, “[w]here Congress explicitly enumerates
certain exceptions to a general prohibition, additional excep-
tions are not to be implied, in the absence of evidence of a
contrary legislative intent.” TRW Inc. v. Andrews, 534 U.S.
19, 28 (2001) (quoting Andrus v. Glover Constr. Co., 446
U.S. 608, 616-617 (1980)); see United States v. Smith, 499
U.S. 160, 167 (1991) (“Congress’ express creation of these
two exceptions convinces us that the Ninth Circuit erred in
inferring a third exception . . . .”). That Congress created three
exceptions to the general rule that the limitations period
begins upon the conclusion of direct review indicates it did
not intend other exceptions, and there is no evidence to the con-
trary.4

[7] Our conclusion is buttressed by the explicit enumera-
tion of an actual innocence exception in AEDPA a mere two
subsections above the statute of limitations section, section
2244(d)(1), in section 2244(b)(2)(B), which governs the filing
of second or successive habeas petitions. That section pro-
vides:

A claim presented in a second or successive
habeas corpus application under section 2254 that
was not presented in a prior application shall be dis-
missed unless . . .
4
In fact, the inclusion of a diligence requirement for the discovery of
new facts in section 2244(d)(1)(D) would make adding an actual inno-
cence exception inconsistent with the statutory scheme. A petitioner could
discover such facts and then, if they established actual innocence, hold
them until he felt the time was right, then availing himself of the actual
innocence exception and avoiding the diligence requirement. Chestang v.
Sisto, 2009 WL 2567860, *13 (E.D. Cal. Aug. 18, 2009). We decline to
make the diligence requirement superfluous.
9526 LEE v. LAMPERT
(B)(i) the factual predicate for the claim could not
have been discovered previously through the exer-
cise of due diligence; and

(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 evi-
dence that, but for constitutional error, no reason-
able factfinder would have found the applicant guilty
of the underlying offense.

28 U.S.C. § 2254(b)(2) (emphasis added). This provision
expressly creates an actual innocence exception to the bar
against second or successive habeas petitions.5 It is thus espe-
cially significant that section 2244(d)(1) does not include an
actual innocence exception, because “Congress clearly knew
how to provide such an escape hatch.” David, 318 F.3d at
347; see Flanders, 299 F.3d at 977 (emphasizing that “other
parts of AEDPA, enacted at the same time, do refer to this
doctrine” of actual innocence (citing 28 U.S.C.
§ 2244(b)(2)(B)(ii))). We interpret differences in statutory
text to be meaningful, as has the Court when interpreting
AEDPA’s statute of limitations. Lawrence v. Florida, 549
U.S. 327, 333 (2007) (interpreting § 2244(d)(2) differently
than § 2244(d)(1)(A) because “§ 2244(d)(1)(A) uses much
different language from § 2244(d)(2)”).6 In light of the
5
This actual innocence exception tracks verbatim the test in Sawyer v.
Whitley, 505 U.S. 333, 336 (1992), the test that Schlup itself rejected.
Thus, Congress created an actual innocence exception but chose a more
restrictive standard.
6
In Holland, the Court held that an inclusio unius est exclusio alterius
argument—that Congress specified statutory tolling in section 2244(d)(2)
but omitted equitable tolling in section 2244(d)(1)—was not enough to
overcome the rebuttable presumption in favor of equitable tolling. 2010
WL 2346549, at *11. As we have discussed, there is no such presumption
in favor of an actual innocence gateway that overcomes the well-
recognized strength of such textual canon. Moreover, the Holland Court
held that the rebuttable presumption outweighed the canon because there
 LEE v. LAMPERT 9527
absence of a presumption in favor of an actual innocence
gateway, we believe the best reading of the statute is that it
does not include an unenumerated actual innocence gateway.

III

Lee responds to the State’s contention that his habeas peti-
tion is time-barred with five of his own arguments.

A

He first advances a different interpretation of the omission
of an “actual innocence” exception to the statute of limitations
despite its enumeration in a nearby subsection, based on his
view of the history of the actual innocence exception. Lee
argues that Congress enacted AEDPA’s statute of limitations
against the background of Schlup’s actual innocence gateway,
so that the omission of an actual innocence exception in sec-
tion 2244(d) and the modification of such an exception in sec-
tion 2244(b) indicate that an unmodified Schlup exception
applies to section 2244(d). The Schlup exception, in other
words, was a default that need not be mentioned. The Sixth
Circuit has advanced a similar argument. Souter, 395 F.3d at
590 n.5, 598.

[8] But Lee gets his history wrong. The Schlup exception
never applied to federal statutes of limitations because
AEDPA created such limitations later. Schlup applied to sec-
ond or successive habeas petition limitations, 513 U.S. at 301,
and state procedural requirements. Murray v. Carrier, 477

was an explanation for Congress’s specification of statutory tolling in sec-
tion 2244(d)(2) and omission of equitable tolling, a different type of toll-
ing, in section 2244(d)(1)—namely, that such specification was necessary
to explain the interaction between federal and state postconviction pro-
ceedings. Id. There is no such explanation regarding the specification of
an actual innocence exception in section 2244(b)(2)(B)(ii) and the omis-
sion of the same type of exception in section 2244(d)(1).
9528 LEE v. LAMPERT
U.S. 478 (1986).7 There was thus no preexisting actual inno-
cence exception in the statute of limitations context for Con-
gress to leave untouched. For Lee’s theory to hold water, we
would have to believe that Congress decided to rely on the
judiciary to create an extratextual exception to a brand-new
limitation on habeas relief never before considered by a fed-
eral court. We doubt Congress thinks we are mindreaders,
especially because Congress included three fairly standard
exceptions in the statute of limitations it created, not relying
on courts to read them in. 28 U.S.C. § 2244(d)(1)(B)-(D). In
any event, Lee’s historical speculation cannot override the
plain meaning of the statute.

B

Lee next responds that we should create an extratextual
actual innocence exception to AEDPA’s statute of limitations
because House v. Bell implemented such an extratextual
exception in the section 2254 state procedural default context.
Essentially, Lee argues that House continued to employ an
actual innocence exception despite silence in the habeas stat-
ute, so we should too.

But House did not do what Lee asks us to do. Lee misun-
derstands the relationship between AEDPA and the law gov-
erning state procedural defaults. That law is largely judge-
made, though based loosely on section 2254(b). It has long
included a Schlup exception. In enacting AEDPA, Congress
did not change that law, as AEDPA did not substantively
amend section 2254(b).8 It thus left the law of state procedural
defaults untouched. The House Court recognized as much
7
Prior to AEDPA, courts relied on a prejudice test for untimeliness. See
Ferguson, 321 F.3d at 822.
8
AEDPA obviously revised section 2254(b), but the changes were
largely cosmetic and organizational. Compare 28 U.S.C. § 2254(b) (2000),
with id. § 2254(b) (1994).
 LEE v. LAMPERT 9529
when deciding that AEDPA did not affect the Schlup inquiry
in the state procedural default context. 547 U.S. at 539.9

Thus, we confront a very different situation than the House
Court. House reaffirmed a judge-made exception in a judge-
made area of law left untouched by AEDPA. Here, Congress
has since entered the field; we will not attempt to retake it.

C

Even if Lee were to concede and to point to House only as
an indication of the Court’s general willingness to deviate
from the text of habeas statutes, we think it inappropriate to
deviate here because we confront a Congress that knew of the
Schlup exception, but omitted it in section 2244(d). The same
awareness cannot be imputed to Congress for the state proce-
dural default section enacted decades before.

[9] House thus, at most, stands for the general principle
that courts may imply an exception when Congress is
unaware of it and has not legislated against it. Neither condi-
tion applies to section 2244(d) because at the time of its
enactment in AEDPA the Schlup exception was well-known
and AEDPA consciously picked and chose when to codify the
Schlup exception. In any event, such broad, purposive inter-
pretation of precedent does not overcome the plain meaning
of the text.
9
Specifically, the Court acknowledged that AEDPA’s section
2244(b)(2)(B)(ii) raised the Schlup standard to the Sawyer standard for
second or successive habeas petitions and that AEDPA’s section
2254(e)(2) established a Sawyer-like inquiry regarding the appropriateness
of evidentiary hearings. But, the Court was quick to distinguish, “[n]either
provision addresses the type of petition at issue here—a first federal
habeas petition seeking consideration of defaulted claims based on a
showing of actual innocence.” 547 U.S. at 539.
9530 LEE v. LAMPERT
D

Lee further responds that it is inequitable to distinguish
between prisoners subject to federal as opposed to state stat-
utes of limitations. That may be true, but it is not up to us to
revise the habeas statute to conform with our understanding
of equity. Congress distinguished between federal and state
statutes of limitations when it omitted a Schlup exception
from section 2244(d) without revising section 2254(b)(2). We
will not rewrite Congress’s handiwork.10

All told, Lee’s statutory responses are unpersuasive. We
will not override the plain meaning of the statute because of
policy concerns or erroneous and speculative interpretations
of AEDPA history and Supreme Court precedent.

E

Lee’s final response is that the court should extend the
actual innocence exception to the federal statute of limitations
to avoid serious constitutional concerns regarding the Suspen-
sion Clause. Souter, 395 F.3d at 601-02.

We have explicitly rejected the claim that AEDPA’s one-
year statute of limitations violates the Suspension Clause in
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
There, we rejected as time-barred the petition of a state pris-
oner who filed after the one-year AEDPA limit. Id.11
10
Nor is Lee’s purposive argument, regarding the nature of habeas cor-
pus, persuasive. If AEDPA has a cognizable purpose, it “reflects Con-
gress’ view that the courts were being too generous with habeas relief and
that the whole system needed to be tightened up.” David, 318 F.3d at 346
(citing H.R. Rep. No. 104-518, at 111 (1996) (“This title incorporates
reforms to curb the abuse of the statutory writ of habeas corpus.”)).
11
In Ferguson, we also rejected Lee’s argument that the difference
between the state and federal limits creates a trap for the unwary: “there
is no ‘trap’ ” because federal and state rights are different and there is no
reason to think that following the procedures for the latter will satisfy the
procedures for the former. 321 F.3d at 823. In such a case, a petitioner can
file a protective petition to protect his federal rights, as the Supreme Court
recently noted. Pace v. DiGugleilmo, 544 U.S. 408, 416 (2005).
 LEE v. LAMPERT 9531
“AEDPA’s one-year statute of limitations,” we reasoned,
“does not render federal habeas an inadequate or ineffective
remedy” to test the legality of a state prisoner’s detention. Id.
Rather, it “leaves petitioners with a reasonable opportunity to
have their federal claims heard.” Id.12 After all, we noted, the
Supreme Court upheld AEDPA’s added restrictions on second
or successive habeas petitions. Id. at 822 (citing Felker v. Tur-
pin, 518 U.S. 651, 664 (1996)).

[10] Nor does the absence of an actual innocence excep-
tion to the statute of limitations constitute a suspension. Lee’s
arguments were available to him immediately following his
conviction. He had “ample time” to bring his claim. David,
318 F.3d at 347. The absence of an actual innocence excep-
tion, therefore, does not make the writ inadequate or ineffec-
tive to test a detention.13 The First Circuit has come to a
similar conclusion: “the limitation is not even arguably
unconstitutional.” Id.

This conclusion is buttressed by the fact that the actual
innocence exception arises from the judiciary’s equitable dis-
cretion, not the Constitution. Murray v. Carrier, 477 U.S.
478, 496 (1986) (“Accordingly, we think that in an extraordi-
nary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a
12
Ferguson remarked that the statute of limitations is not a “per se” vio-
lation of the Suspension Clause. It took that language from Green v.
White, 223 F.3d 1001, 1003 (9th Cir. 2000), the first case in our circuit to
uphold the statute of limitations against a Suspension Clause challenge.
Green emphasized that the AEDPA statute of limitations allows for con-
sideration of individual circumstances, presumably through the exceptions
in sections 2244(d)(1)(B)-(D), which have the same effect as equitable
tolling doctrine. Such a feature is not compromised by the absence of an
actual innocence gateway. Thus, the “per se” language does not undermine
our conclusion. Rather, it emphasizes the importance of individualized
application of section 2244(d)(1)(B)-(D) to a particular petitioner.
13
This is especially true because of the exception for new evidence in
section 2244(d)(1)(C). David, 318 F.3d at 347.
9532 LEE v. LAMPERT
federal habeas court may grant the writ even in the absence
of a showing of cause for the procedural default.”) (emphasis
added); Schlup, 513 U.S. at 314-17 (not mentioning constitu-
tional concerns while formulating exception); id. 324-27 (not
mentioning constitutional concerns in holding that Sawyer
standard was too strict for actual innocence inquiry); House,
547 U.S. at 536-38 (not mentioning constitutional concerns
while formulating exception). We decline to rule otherwise
and instead follow Ferguson: AEDPA’s statute of limitations
without an actual innocence exception does not violate the
Suspension Clause.

[11] Consequently, we conclude that there is no Schlup
actual innocence exception to override AEDPA’s statute of
limitations. Lee’s habeas petition is thus time-barred and must
be dismissed.

IV

We have previously refrained from deciding whether there
is an actual innocence exception that serves as a gateway
through the AEDPA statute of limitations to the merits of a
petitioner’s claims. Majoy, 296 F.3d 776-77. Instead, we have
assumed such an exception and have evaluated the actual
innocence claims themselves, waiting until a state prisoner
shows actual innocence to answer the legal question. Id.14

But this is the minority approach. Four circuits have
decided the question in the manner we do today. Escamilla,
426 F.3d at 871-72 (Seventh Circuit); David, 318 F.3d at 347
(First Circuit); Cousin, 310 F.3d at 849 (Fifth Circuit); Flan-
ders, 299 F.3d at 976-78 (Eighth Circuit). And, of course, the
Sixth Circuit necessarily reached the issue with contrary result
14
Although Lee does not so argue, we are not constrained by the unrea-
soned dicta in Majoy that whether an actual innocence exception to the
statute of limitations exists “is not appropriately addressed by us in a
hypothetical context.” Majoy, 296 F.3d at 777.
 LEE v. LAMPERT 9533
in Souter, 395 F.3d at 585. Only two circuits have declined to
decide. Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1333-
34 (11th Cir. 2008); Doe v. Menefee, 391 F.3d 147, 161 (2d
Cir. 2004).

We now resolve this question for our circuit for two rea-
sons.

A

First, there is a widening split among the district courts of
our circuit on whether there is an actual innocence exception
to section 2244(d). Several district courts, including ones in
the Central District of California, the Northern District of Cal-
ifornia, and the District of Oregon, have held that “actual
innocence” overrides the statute of limitations. E.g., Lisker v.
Knowles, 463 F. Supp. 2d 1008, 1032-38 (C.D. Cal. 2006)
(Phillips, J.) (“[T]he Court concludes that AEDPA’s statute of
limitations must be tolled when an evidentiary showing dem-
onstrates that its application would work a miscarriage of jus-
tice under Schlup.”); Larsen v. Adams, 642 F. Supp. 2d 1124,
1131 (C.D. Cal. 2009) (Snyder, J.) (holding that “a credible
actual innocence claim overcomes the statute of limitations
bar”); Nickerson v. Roe, 260 F. Supp. 2d 875, 890 (N.D. Cal.
2003) (Patel, C.J.) (adhering to previous order finding actual
innocence exception); O’Neal v. Lampert, 199 F. Supp. 2d
1064, 1066 (D. Or. 2002) (Aiken, J.) (finding “that creating
an ‘actual innocence’ exception to the habeas corpus statute
of limitations is a logical extension of [Schlup]”).

Several other district courts, including some within the
Eastern District for California and the District of Oregon,
have held the opposite. E.g., Chestang v. Sisto, No. CIV S-07-
1173 (E.D. Cal. Sept. 30, 2009) (Karlton, J.), adopting in full,
2009 WL 2567860, *13 (E.D. Cal. Aug. 18, 2009) (“The
court is persuaded by the David rationale that claims of actual
innocence are required to be brought diligently the same as
any other claim.”); Souliotes v. Tilton, 2008 WL 782479, *8
9534 LEE v. LAMPERT
(E.D. Cal. Mar. 20, 2008) (Wanger, J.) (rejecting actual inno-
cence argument and ruling that “petition for writ of habeas
corpus is barred by the statute of limitations”); Flemmer v.
Eckland, Civ. No. 99-598-HU, at 2 (D. Or. 2000) (King, J.)
(adopting magistrate judge’s recommendation that there is no
actual innocence exception to statute of limitations).

This split creates troubling inconsistency. The rights of
state prisoners in Oregon depend on which judge hears their
cases. The rights of state prisoners in California depend on the
happenstance of the location of their state prison. Such chaos
calls out for our resolution.

B

Our second reason for resolving this question at this time
is that our district courts are expending vast amounts of
resources under the current approach of evaluating actual
innocence, on the assumption that an actual innocence excep-
tion exists. Each such evaluation requires the submission of
exhibits, oral argument, evidentiary hearings, and numerous
rulings, as the case before us demonstrates.15 Here, the district
court held several hearings and accepted numerous exhibits
over the course of proceedings lasting several months. Lee,
607 F. Supp. 2d at 1216; see Nickerson, 260 F. Supp. 2d at
889 (recounting four days of hearings over three months, two
hundred exhibits, and post-hearing briefing).

[12] A simple search, furthermore, demonstrates that every
district in our circuit has faced numerous cases like this, in
which they scrupulously evaluated actual innocence claims in
the context of a petition time-barred by the statute of limita-
tions, on the assumption that an actual innocence exception
exists.16 The Central District of California, by itself, has
15
Since the district courts are also assuming the Schlup as opposed to
Sawyer standard, they may also be expending extra resources due to the
difference between the two standards.
16
Unless otherwise noted, the courts in these cases assumed the exis-
tence of an actual innocence exception, then evaluated whether the peti-
 LEE v. LAMPERT 9535
decided at least twenty-four cases in this manner between
March 4, 2008 and October 5, 2009, the date of argument in
this case.17 This massive expenditure of judicial resources has

tioner successfully established actual innocence, and then rejected his
petition after finding he did not meet his burden. In some cases, we have
noted in the parentheticals that district courts acted as if prior precedents
in their district did not exist, a further instance of chaos in this area of law.
Jelks v. Swenson, 2008 WL 4974420, *6+ (D. Haw. Nov. 21, 2008); Jar-
dine v. Barrier, 2007 WL 2993918, *4 (D. Idaho Oct. 11, 2007); Weaver
v. Att’y Gen. of Mont., 597 F. Supp. 2d 1126, 1129 (D. Mont. 2008); Bar-
ron v. Neven, 2008 WL 5105262, *3 (D. Nev. Nov. 26, 2008); Hoisington
v. Williams, 2008 WL 4831699, *6 (E.D. Wash. Oct. 30, 2008); Sanford
v. Quinn, 2008 WL 803141, *1 (W.D. Wash. Mar. 24, 2008); Hedrick v.
Hall, 2007 WL 2463246, *5 (D. Or. Aug. 27, 2007) (evaluating actual
innocence without deciding exception, despite case law in the District of
Oregon finding exception); Hussey v. Blackletter, 2008 WL 2169528, *3
(D. Or. May 23, 2008) (evaluating actual innocence after finding excep-
tion); Lindley v. Schriro, 2007 WL 2320535, *1+ (D. Ariz. Aug. 10,
2007); Perez v. Evans, 2009 WL 2104853 (C.D. Cal. July 9, 2009)
(assessing actual innocence, declining to rule on exception, and not recog-
nizing cases in Central District recognizing exception); Gerolaga v.
Kramer, 2009 WL 3627940, *5+ (E.D. Cal. Oct. 29, 2009) (assessing
actual innocence and not recognizing Eastern District precedent refusing
to find such an exception); Hamilton v. Gonzalez, 2009 WL 3517612, *5
(N.D. Cal. Oct. 26, 2009) (same); Brazil v. Curry, 2008 WL 3925161, *3
(S.D. Cal. Aug. 26, 2008).
17
We say “at least” because our word search was far from comprehen-
sive. There may be more. Hurt v. Hedgpeth, 2009 WL 2767674, *2 (C.D.
Cal. Aug. 25, 2009); Moritz v. Dir. of Cal. Dep’t of Corr., 2009 WL
2821114, *2 (C.D. Cal. Aug. 25, 2009); Mendoza v. Adams, 2009 WL
2485728, *4 (C.D. Cal. Aug. 6, 2009); Tweedy v. Yates, 2009 WL
2190173, *2 (C.D. Cal. July 14, 2009); Johnson v. Martell, 2009 WL
2045985, *3 (C.D. Cal. July 6, 2009); Eager v. Hornbeak, 2009 WL
1810742, *4 (C.D. Cal. June 24, 2009); Lloyd v. Clay, 2009 WL 1309472,
*2 (C.D. Cal. May 8, 2009); Guerrero v. Clark, 2009 WL 1371225, *3
(C.D. Cal. May 7, 2009); Contreras v. Ollison, 2009 WL 910337, *3
(C.D. Cal. Mar. 31, 2009); Jones v. Felker, 2009 WL 762453, *3 (C.D.
Cal. Mar. 20, 2009); Burgers v. Almager, 2009 WL 737065, *4 (C.D. Cal.
Mar. 18, 2009); Lopez v. Clark, 2009 WL 648992, *3 (C.D. Cal. Mar. 6,
2009); Haney v. Dexter, 2009 WL 212423, *3 (C.D. Cal. Jan. 27, 2009);
Mitchell v. California, 2008 WL 4830721, *3 (C.D. Cal. Oct. 30, 2008);
9536 LEE v. LAMPERT
affected us at the circuit level as well, as a cursory search of
our cases demonstrates.18 All of these efforts are for naught if
there is no actual innocence exception to the statute of limita-
tions. Since the text of the statute indicates there is not, the
federal courts in our circuit are needlessly burdened. We
decline to prolong the inevitable recognition that there is no
“actual innocence” exception to the one-year statute of limita-
tion for filing an original petition for habeas corpus relief.

V

Accordingly,19 we REVERSE the judgment of the district
court and REMAND with instructions to DISMISS the
habeas petition as untimely.

Trevizo v. Knowles, 2008 WL 4501835, *2 (C.D. Cal. Oct. 2, 2008);
Padilla v. Tilton, 2008 WL 4195930, *3 (C.D. Cal. Sept. 9, 2008); Valenz-
uela v. Dexter, 2008 WL 4195937, *2 (C.D. Cal. Sept. 9, 2008); Arrellano
v. Curry, 2008 WL 2502147, *5 (C.D. Cal. June 20, 2008); Valdez v.
Clark, 2008 WL 2517152, *2 (C.D. Cal. June 20, 2008); Hudson v. Hall,
2008 WL 2338581, *3 (C.D. Cal. June 4, 2008); Bryant v. Yates, 2008 WL
1330097, *2 (C.D. Cal. Apr. 9, 2008); Vu v. Kramer, 2008 WL 1326687,
*2 (C.D. Cal. Apr. 4, 2008); Evans v. Hense, 2008 WL 937973, *4 (C.D.
Cal. Apr. 3, 2008); Henry v. Hernandez, 2008 WL 638370, *2 (C.D. Cal.
Mar. 4, 2008).
18
In all of these cases, our court inquired as to actual innocence on the
assumption that such an exception existed. E.g., Adams v. Harrison, 266
F. App’x 560 (9th Cir. 2008); Hartawan v. Gordon, 265 F. App’x 666 (9th
Cir. 2008); Hundley v. Roe, 135 F. App’x 55, 56 (9th Cir. 2005); Liang
v. Guirbino, 99 F. App’x 769, 770 (9th Cir. 2004); Tarver v. California,
115 F. App’x 339 (9th Cir. 2004); Fultcher v. Hatcher, 63 F. App’x 386
(9th Cir. 2003); Chaudhary v. Clarke, 79 F. App’x 952 (9th Cir. 2003);
Holiday v. Mueller, 51 F. App’x 636 (9th Cir. 2002); Mark v. Mueller, 52
F. App’x 884 (9th Cir. 2002); Smith v. Newland, 48 F. App’x 233 (9th Cir.
2002).
19
Because we decide this case on statute of limitations grounds, we need
not reach the state’s other arguments, including that the district court
refused to give AEDPA deference to the state court findings and that Lee
did not present any new evidence in the federal evidentiary hearing.
 LEE v. LAMPERT 9537
N.R. SMITH, Circuit Judge, concurring in the judgment:

The district court failed to accord the Oregon state courts
the deference due them under AEDPA. Under AEDPA, an
application for habeas corpus will not be granted unless the
adjudication of the claim (1) “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or (2) “resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). “[A] federal habeas court may not issue
the writ simply because that court concludes in its indepen-
dent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.”
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (quoting Wil-
liams v. Taylor, 529 U.S. 362, 411 (2000)) (internal quotation
marks omitted). “Rather, that application must be objectively
unreasonable.” Id. Applying this standard of review to the
decisions of the Oregon state courts, Lee has failed to demon-
strate an entitlement to habeas relief. Therefore, I concur in
the judgment reversing the district court’s grant of Lee’s peti-
tion.

The district court failed to identify where the Oregon state
courts issued a decision that was contrary to clearly estab-
lished Supreme Court precedent. The district court also failed
to identify an unreasonable determination of the facts in light
of the evidence before the Oregon state courts. Instead, the
district found that “AEDPA’s usual deferential standard for
reviewing state court findings is inapposite, at least when the
reliable new evidence casts doubt upon those findings.” Lee
v. Lampert, 607 F. Supp. 2d 1204, 1222 (D. Or. 2009). Such
finding was error. First, AEDPA prohibits the district court
from holding an evidentiary hearing in order to develop a
record for a determination on the merits, except in a few
express circumstances, none of which exist here. Second,
even if federal courts were allowed to consider this evidence,
9538 LEE v. LAMPERT
the district court’s analysis constitutes little more than a ques-
tioning of the reason and wisdom of duly appointed Oregon
jurors.

The district court failed to make a finding entitling it to
accept additional facts for a determination on the merits.
Under 28 U.S.C. § 2254(e), a state court determination of a
factual issue shall be presumed to be correct. The petitioner
has the burden of rebutting that presumption by clear and con-
vincing evidence. Id. Furthermore, a federal court, reviewing
a state court conviction in a habeas proceeding, “shall not”
conduct a hearing to develop facts as to the merits of a habeas
claim, unless the petitioner shows that (a) his claim relies on
a new rule of retroactive constitutional law or “a factual predi-
cate that could not have been previously discovered through
the exercise of due diligence,” and (b) “the facts underlying
the claim would be sufficient to establish by clear and con-
vincing evidence that but for constitutional error, no reason-
able factfinder would have found the applicant guilty of the
underlying offense.” 28 U.S.C. § 2254(e).

Schlup does not constitute an amendment or an addition to
this statute. In Schlup, the Supreme Court determined whether
a showing of actual innocence excuses a procedural default
involving a second or successive petition. It did not address
the necessary showing for obtaining habeas relief on grounds
of actual innocence. See Schlup, 513 U.S. at 314. Thus, Sch-
lup provides no authority guiding a court’s AEDPA determi-
nation of the merits of the petition. Further, Schlup should not
be read so as to amend the subsequent and clear Congressio-
nal language of AEDPA.

The district court discusses no new rule of retroactive con-
stitutional law. The district court does not discuss how any of
this “new” evidence establishes, by clear and convincing evi-
dence, the existence of a constitutional error resulting in Lee’s
conviction. There is no factual predicate that could not have
been previously discovered through an exercise of due dili-
 LEE v. LAMPERT 9539
gence. Thus, the district court lacked the authority to supple-
ment the record with facts not developed in the state court
proceedings.

The district court granted Lee habeas relief on the grounds
of ineffective assistance of counsel. To grant such relief, a
reviewing court must determine “(1) whether the performance
of counsel was so deficient that he was not functioning as
‘counsel’ as guaranteed under the Sixth Amendment; and (2)
whether this deficient performance prejudiced the defendant
by depriving him of a fair trial.” United States v. Davis, 36
F.3d 1424, 1433 (9th Cir. 1994) (citing Strickland v. Wash-
ington, 466 U.S. 668, 691-92 (1984)). Without interacting
with the Oregon state courts’ findings, the federal district
court found that Lee had received ineffective assistance and
that he was prejudiced by such ineffective assistance. The dis-
trict court based its prejudice finding on its conclusion that,
had the new evidence been presented to the jury, there is a
reasonable probability that the result of the proceeding would
have been different. Lee, 607 F. Supp. 2d at 1226. The district
court primarily relied upon two pieces of new evidence: (1)
expert testimony regarding the reliability of child witnesses
and a critique of the techniques used in this case; and (2) addi-
tional details regarding Robert Nachand and the police’s
investigation of Lee. Neither of these pieces of evidence truly
appears to be “new.” The jury had evidence before it, at the
time of rendering its verdict, that there existed a second
molester and that the victim was experiencing some confusion
between the second molester and Lee. Lee knew about the
unreliability of child testimony and was allowed to explore
through examination and argue in closing argument about the
victim’s confusion between Richard Lee and Robert Nachand.
Further, while an Oregon court may have appropriately
denied the request, it appears that Lee never even requested
to call an expert witness on his behalf to support an argument
that the victim’s testimony was unreliable. Lee’s later presen-
tation of expert testimony to the federal district court does not
constitute new evidence; instead, it was further development
9540 LEE v. LAMPERT
of existing evidence. See Griffin v. Johnson, 350 F.3d 956,
962-63 (9th Cir. 2003). Thus, the evidence upon which the
district court relied in holding that the jury would have
changed its verdict, was before the jury. Here, the jury had
evidence of the victim’s confusion and the second molester
before rendering its verdict. We presume the jury to have con-
sidered the evidence before it when rendering a verdict.
Therefore, the district court erred in holding that Lee was
entitled to habeas relief on this ground.

It is not enough that the district court disagreed with the
findings of the Oregon state courts. “The question ‘is not
whether a federal court believes the state court’s determina-
tion’ under the Strickland standard ‘was incorrect but whether
that determination was unreasonable—a substantially higher
threshold.’ ” Knowles v. Mirzayance, ___ U.S. ___, 129 S. Ct.
1411, 1420 (2009) (quoting Schriro v. Landrigan, 510 U.S.
465, 473 (2007)). The court must identify a decision “that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). No other
finding will entitle Lee to habeas relief. Because the district
court failed to identify how Oregon’s denial of Lee’s claims
for relief violated one of these standards, I join in the judg-
ment.