Dearcey Stewart v. Matthew Cate

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEARCEY JAMUL STEWART, No. 10-55985

Petitioner-Appellant,

D.C. No.

v. 3:05-cv-01059-

BTM-CAB

MATTHEW L. CATE,

Respondent-Appellee. ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted

December 5, 2012—Pasadena, California

Filed November 1, 2013

Amended May 1, 2014

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit

Judges, and Jennifer G. Zipps, District Judge.*

Order;

Opinion by Judge Zipps;

Dissent by Judge Berzon

*

The Honorable Jennifer G. Zipps, District Judge for the U.S. District

Court for the District of Arizona, sitting by designation.

2 STEWART V. CATE

SUMMARY**

Habeas Corpus

The panel amended its opinion and dissent, filed on

November 1, 2013; denied a petition for panel rehearing;

denied a petition for rehearing en banc on behalf of the court;

and ordered that no further petitions shall be entertained in a

case in which the panel affirmed the district court’s denial of

a 28 U.S.C. § 2254 habeas corpus petition.

The panel first determined that petitioner was not entitled

to statutory tolling for the 100-day gap between the denial by

the California Court of Appeal of petitioner’s habeas petition

and the filing of his petition in the California Supreme Court

because there was no “properly filed” petition pending in

state court during that time, and because the delay was

unreasonable.

The panel next held that petitioner failed to pass through

the actual innocence gateway of Schlup v. Delo, 513 U.S. 298

(1995), and that the district court properly denied an

evidentiary hearing.

Judge Berzon dissented. She would hold that petitioner

was entitled to statutory tolling because the 100-day gap was

reasonable. Alternatively, Judge Berzon would remand with

instructions to hold an evidentiary hearing on petitioner’s

actual innocence claim because he has presented post-

conviction evidence that, if credible, demonstrates this case

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

STEWART V. CATE 3

to be the sort of extraordinary one that requires reaching the

merits of petitioner’s otherwise barred federal habeas claims.

COUNSEL

Kurt David Hermansen (argued), Law Office of Kurt David

Hermansen, San Diego, California; Jan Stiglitz, Justin

Brooks, Alexander Simpson, and Alissa Bjerkhoel, California

Innocence Project, San Diego, California, for Petitioner-

Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney

General; Kamala D. Harris, Attorney General of California;

Dane R. Gillette, Chief Assistant Attorney General; Gary W.

Schons, Senior Assistant Attorney General; Raquel M.

Gonzalez, Deputy Attorney General, San Diego, California,

for Respondent-Appellee.

4 STEWART V. CATE

ORDER

The opinion and dissent filed on November 1, 2013, and

appearing at 734 F.3d 995, are amended. The superseding

amended opinion and dissent will be filed concurrently with

this order.

With these amendments, Judge Ikuta voted to deny the

appellant’s petition for panel rehearing and rehearing en banc,

and Judge Zipps so recommended. Judge Berzon voted to

grant both petitions. The full court was advised of the

petition for rehearing en banc. A judge requested a vote on

whether to rehear the matter en banc. The matter failed to

receive a majority of votes of the nonrecused active judges in

favor of en banc consideration. Fed. R. App. P. 35(f).

Appellant’s petition for panel rehearing and rehearing en

banc is DENIED. No further petitions for rehearing or

rehearing en banc will be entertained.

OPINION

ZIPPS, District Judge:

Appellant DeArcey Jamul Stewart (“Stewart”) appeals

from the district court’s denial of his 28 U.S.C. § 2254 habeas

petition as untimely. Stewart is serving a sentence in state

prison of two life terms plus seven years following

convictions for attempted murder. After pursuing

post-conviction relief in state court, Stewart filed a Petition

for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in

the United States District Court for the Southern District of

STEWART V. CATE 5

California. After thorough review, the district court denied

Stewart’s federal habeas petition as untimely. On appeal,

Stewart contends that the district court erred in:

(1) concluding that Stewart was not entitled to statutory

tolling of his federal statute of limitations under § 2244(d);

(2) concluding that Stewart had not established an actual

innocence claim; (3) failing to conduct an evidentiary hearing

prior to dismissing Stewart’s federal habeas petition; and

(4) concluding that Stewart’s Petition failed to adequately

allege a federal claim. We affirm the district court’s denial

of Stewart’s federal habeas petition.

I. BACKGROUND

On September 23, 1995, brothers Mark and Michael

Parish were shot by a passenger in a nearby vehicle while

driving through an area of San Diego claimed by the Skyline

Piru gang, of which Stewart was a member. The Parish

brothers identified Stewart as the driver of the vehicle and

Richard Lee as the shooter. Stewart and Lee were arrested

and charged in the Superior Court of California, County of

San Diego. Stewart and Lee were tried jointly and in the

spring of 1996 both men were convicted on two counts of

attempted murder.1 On July 18, 1996, Stewart was sentenced

to two life terms and seven years in state prison. The trial

court imposed consecutive terms of life with the possibility

of parole; Stewart also received a five-year sentencing

enhancement based on a prior conviction.

Stewart and Lee both pursued several avenues of

post-conviction relief, most of which are not relevant to this

1

Lee was also convicted on one count of assault on a peace officer

stemming from the circumstances of his arrest.

6 STEWART V. CATE

appeal. Stewart filed a motion for a new trial and a direct

appeal. Both defendants jointly filed a petition for review in

the California Supreme Court. On August 31, 2000, as a

result of a state petition for writ of habeas corpus filed by Lee

and not joined by Stewart, Lee’s convictions for attempted

murder were vacated. Lee’s post-conviction relief was based

on new evidence proffered by Darnell Jackson, an informant

(now in witness protection) who claimed that Arnold Adkins,

not Lee, was the shooter, and that Stewart was the driver of

the vehicle from which the Parish brothers’ shooting

occurred. The state did not oppose Lee’s petition, instead

conceding that the newly discovered evidence was

sufficiently credible to cast doubt on the integrity of Lee’s

convictions.

Following the vacatur of Lee’s convictions, on May 14,

2002, Stewart initiated the post-conviction relief proceedings

that form the basis of the pending appeal. On that date,

Stewart filed a petition for writ of habeas corpus in the

Superior Court of California, County of San Diego (“State

Trial Court Petition”),2 asserting that newly-discovered

evidence proved that Darnell Jackson, not Stewart, was the

driver of the vehicle from which the shots were fired. In

support of his petition, Stewart submitted declarations from

Roy Vinson, Arnold Johnson and Tatiana Daniels. On

December 17, 2002, after reviewing the petition, return and

2

California’s collateral review system differs from that of other States

in that it does not require, technically speaking, appellate review of a

lower court determination. Instead it contemplates that a prisoner will file

a new “original” habeas petition. See Carey v. Saffold, 536 U.S. 214, 221

(2002). Accordingly, we refer to the petitions filed by Stewart in the

California trial, appellate and supreme courts as separate petitions,

although they collectively represent Stewart’s post-conviction litigation

(and exhaustion) in the state courts of the pending federal claims.

STEWART V. CATE 7

traverse, the Superior Court denied the petition without a

hearing on the ground that the declarations were not credible.

On February 6, 2003, Stewart filed a petition for writ of

habeas corpus in the California Court of Appeal (“State Court

of Appeal Petition”), claiming: (1) the newly-discovered

evidence undermined the entire case of the prosecution;

(2) the trial court erred in denying Stewart’s petition;

(3) Stewart is actually innocent; and (4) because of the newly

discovered evidence, insufficient evidence supports Stewart’s

conviction. On May 23, 2003, the Court of Appeal denied the

petition, concluding that the declarations were not conclusive,

not credible, and did not make a sufficient showing of

Stewart’s innocence. On August 31, 2003, Stewart filed a

petition for writ of habeas corpus in the California Supreme

Court (“State Supreme Court Petition”), raising the same

claims presented in his State Court of Appeal Petition.3 On

August 11, 2004, the California Supreme Court summarily

denied the petition.

On May 17, 2005, Stewart filed a petition for writ of

habeas corpus in the United States District Court, Southern

District of California, challenging the California state courts’

denial of his petitions for writ of habeas corpus (Ҥ 2254

Petition”). Stewart’s § 2254 Petition presents four claims

substantially identical to those made in his state petitions:

(1) newly-discovered evidence undermines the entire case of

the prosecution; (2) the state court erred in denying Stewart’s

3

Stewart’s State Supreme Court Petition was dated August 31, 2003 and

received by the California Supreme Court on September 4, 2003. The

district court correctly identified August 31, 2003 as the date that

Stewart’s State Supreme Court Petition was filed pursuant to the “mailbox

rule,” which calculates a pro se prisoner litigant’s filing date from the date

the document is delivered to a prison official for mailing. See Houston v.

Lack, 487 U.S. 266 (1988).

8 STEWART V. CATE

petition for writ of habeas corpus; (3) Stewart is actually

innocent; and (4) because of the newly-discovered evidence,

insufficient evidence supports Stewart’s conviction.

On February 28, 2008, a magistrate judge issued a Report

and Recommendation (“R&R”) recommending that Stewart’s

§ 2254 Petition be dismissed as untimely or, alternatively, be

denied because Stewart had not established actual innocence

and the remaining claims did not present federal questions.

Stewart objected to the R&R; he also filed a Motion for

Discovery seeking to compel the State to disclose exculpatory

material and an Amended Motion for Leave to Amend the

Petition in order to adequately plead the federal basis of his

claims.

On May 30, 2008, the district court issued an order

declining to adopt the R&R, granting Stewart leave to amend

and requiring the State to file a response to Stewart’s Motion

for Discovery. The district court concluded that the State

might possess exculpatory material which could affect the

court’s timeliness analysis, and that therefore it was

appropriate to rule on the Motion for Discovery prior to

ruling on the timeliness of the § 2254 Petition. In doing so,

the district court noted that Stewart’s federal § 2254 Petition

was untimely and not subject to statutory or equitable tolling,

but that Stewart might avoid dismissal if he could pass

through the “actual innocence gateway” of Schlup v. Delo,

513 U.S. 298 (1995). In granting Stewart’s Motion for Leave

to Amend, the district court accepted as filed Stewart’s

proposed Amended § 2254 Petition, which purported to

clarify the federal basis of Stewart’s claims.

During the course of briefing on Stewart’s Motion for

Discovery, the district court conducted an in camera review

STEWART V. CATE 9

of all documents upon which the State had relied in electing

not to oppose Lee’s state court habeas petition, as well as any

other material in the State’s possession that cast doubt on the

Parish brothers’ eye-witness identification of Stewart. The

district court also expanded the record to include declarations

from Stewart; Maurice League, a fellow prisoner and an

associate of one of the victims; Richard Lee; and Stewart’s

attorney. Based on its review of the record, on April 21,

2010, the district court dismissed Stewart’s Amended § 2254

Petition as untimely,4 concluding that Stewart had not

satisfied the Schlup gateway actual innocence standard. The

district court also denied Stewart’s request for an evidentiary

hearing on his Schlup claim. This appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court’s denial of a § 2254

petition on timeliness grounds. Porter v. Ollison, 620 F.3d

952, 958 (9th Cir. 2010). Findings of fact made by the

district court are reviewed for clear error. Moran v.

McDaniel, 80 F.3d 1261, 1268 (9th Cir. 1996). The Court

accords a presumption of correctness to factual findings made

by the state court. Id. The decision by the district court to

decline to order an evidentiary hearing is reviewed for abuse

of discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir.

2006).

4

The trial court also denied Stewart’s Motion for Discovery and directed

the Clerk of the Court to file under seal the material submitted in camera

by the State.

10 STEWART V. CATE

III. ANALYSIS

A. Timeliness of the Petition

28 U.S.C. § 2244(d)(1) identifies four events that

potentially trigger the running of AEDPA’s one-year statute

of limitations.5 The limitations period is statutorily tolled,

however, during the time that “a properly-filed application for

State post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending.” 28 U.S.C.

§ 2244(d)(2). The district court applied 28 U.S.C.

§ 2244(d)(1)(A), (B) and (D) and calculated when the

applicable limitations period would run under a variety of

factual scenarios. Under most of those scenarios, Stewart’s

§ 2254 Petition was untimely and not entitled to statutory

tolling. However, with respect to its calculation under

5

28 U.S.C. § 2244(d)(1) provides:

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. The

limitation period shall run from the latest of--(A) the

date on which the judgment became final by the

conclusion of direct review or the expiration of the time

for seeking such review; (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 discovered through

the exercise of due diligence.

STEWART V. CATE 11

28 U.S.C. § 2244(d)(1)(D), the district court noted conflicting

evidence concerning when Stewart could have discovered the

factual predicate of his federal claims and triggered the

statute of limitations under that provision. The court stated

that, assuming without deciding that Stewart could not have

discovered the factual predicate of his claims before May 6,

2002,6 the statute was tolled on May 14, 2002 when Stewart

filed his State Trial Court Petition. The district court

reasoned that if the statute of limitations was statutorily tolled

from May 14, 2002 until August 11, 2004, when Stewart’s

State Supreme Court Petition was denied, then his § 2254

Petition was timely; the clock ran from May 6 to May 14,

2002 (7 days) and then from August 11, 2004 to May 15,

2005, when Stewart handed his § 2254 Petition to prison

officials for mailing (an additional 277 days). But, the

district court ultimately concluded that Stewart’s § 2254

Petition was untimely because he was not entitled to statutory

tolling during the entire period between May 14, 2002 and

August 11, 2004. Specifically, the district court concluded

that during the 100-day gap between the May 23, 2003 denial

of his State Court of Appeal Petition and the August 31, 2003

filing of his State Supreme Court Petition, no “properly filed”

state habeas petition was “pending” in the state court under

28 U.S.C. § 2244(d)(2).

The time between the denial of a petition in a lower

California court and the filing of a subsequent petition in the

next higher state court does not toll the statute of limitations

pursuant to 28 U.S.C. § 2244(d)(2) if the latter petition is not

6

May 6, 2002 is the date that Stewart obtained the declaration of Tatiana

Daniels; the district court concluded that Ms. Daniels’s declaration was

the first piece of potentially admissible, exculpatory evidence Stewart

obtained.

12 STEWART V. CATE

timely filed. Carey v. Saffold, 536 U.S. 214, 225 (2002). In

the absence of a clear indication by the state supreme court

that a petition is untimely, the federal court “must itself

examine the delay in each case and determine what the state

courts would have held in respect to timeliness.” Evans v.

Chavis, 546 U.S. 189, 198 (2006). California has a special

system governing appeals when prisoners seek relief on

collateral review. Id. at 192. Under that system, the

equivalent of a notice of appeal is timely if filed within a

“reasonable time.” Id. (Stevens, J., concurring) (citing In re

Harris, 5 Cal.4th 813, 828 n.7 (1993)). Thus, “the federal

court must decide whether the filing of the request for

state-court appellate review (in state collateral review

proceedings) was made within what California would

consider a ‘reasonable time.’” Id. at 198. California’s use of

the “reasonableness” standard has prompted the United States

Supreme Court to note that it is “more difficult for federal

courts to determine just when a review application (i.e., a

filing in a higher court) comes too late.” Saffold, 536 U.S. at

223. The Supreme Court has suggested that “the California

courts themselves might alleviate the problem by clarifying

the scope of the words ‘reasonable time’ in this context or by

indicating, when denying a petition, whether the filing was

timely. And the Ninth Circuit might seek guidance on the

matter by certifying a question to the California Supreme

Court in an appropriate case.” Chavis, 546 U.S. at 199.7 To

date, however, “California courts have given scant guidance

as to what the State considers a ‘reasonable’ length of time to

file an application for review.” Velasquez v. Kirkland,

639 F.3d 964, 968 (9th Cir. 2011). Until such guidance is

7

The Ninth Circuit did certify this question to the California Supreme

Court in 2008, but the California Supreme Court denied certification. See

Chaffer v. Prosper, 592 F.3d 1046, 1048 n.1 (9th Cir. 2010).

STEWART V. CATE 13

provided, the Supreme Court has instructed federal courts to

apply a thirty-to-sixty-day benchmark for California’s

“reasonable time” requirement, and courts in this circuit have

developed a large body of case law which follows that

instruction. Id. (collecting cases).8

In the present case, the district court’s summation of

California timeliness rules was accurate. Stewart’s State

Supreme Court Petition, filed 100 days after the denial of his

State Court of Appeal Petition, was summarily denied by the

California Supreme Court. Accordingly, the district court

examined whether the 100-day delay was “reasonable” under

California law. The district court, citing to Chavis and Culver

v. Director of Corrections, 450 F. Supp. 2d 1135, 1140–41

(C.D. Cal. 2006), summarized California law as generally

accepting a 30-to-60-day delay as reasonable, but also

permitting delay beyond that length of time if the petitioner

could establish good cause for the delay. The district court

concluded that Stewart’s 100-day delay was unreasonable and

not excused by good cause. Accordingly, the district court

concluded that Stewart’s state court petition was not

“pending” after May 23, 2003 and therefore Stewart was not

entitled to statutory tolling. In so holding, the district court

properly followed the United States Supreme Court’s

instruction to use a 30-to-60-day “benchmark” for timeliness

under California law. The district court also correctly

8

The dissent suggests that we read Chavis to hold that a delay in excess

of 60 days is per se unreasonable under California law. Dis. Op. at 30. We

have relied primarily on this Court’s decision in Velasquez and its

summary of the large body of federal case law applying a 30–60 day

“benchmark” for California’s reasonable time requirement. We

acknowledge that this benchmark may be exceeded under appropriate

circumstances.

14 STEWART V. CATE

concluded that Stewart had failed to demonstrate good cause

for the 100-day delay.

Stewart argues on appeal that California law permits a

100-day gap between state court post-conviction relief

petitions. In support of this claim, Stewart cites to four

California state court cases which permitted the filing of a

habeas petition in a higher court more than 100 days after the

lower court’s denial of the preceding habeas petition. In each

of those cases, a gap of nine months to a year-and-a-half

between state court filings was permitted due to a finding of

good cause for the delay. See In re Spears, 204 Cal. Rptr.

333, 335–36 (Cal. Ct. App. 1984) (eighteen-month delay

between direct appeal and post-conviction relief proceedings

not barred by doctrine of laches because petitioner lacked

capacity to represent himself, legal assistance available to

indigent prisoners is scarce, and petitioner attempted to obtain

legal assistance to pursue his case immediately upon

affirmance of his conviction); In re Moss, 221 Cal. Rptr. 645,

649 (Cal. Ct. App. 1985) (nine month delay not barred by

doctrine of laches where the delay was attributable to

petitioner’s inability to secure appellate counsel); In re

Bower, 700 P.2d 1269, 1273 n.3 (Cal. 1985) (noting without

explanation that a one-year delay is acceptable); In re

Burdan, 86 Cal. Rptr. 549, 558 (Cal. Ct. App. 2008) (finding

no substantial delay where unrepresented petitioner filed a

petition for writ of habeas corpus in the Court of Appeal 10

months after denial of a similar petition in the superior court).

However, these cases carry little persuasive weight. Spears,

Moss and Bower were decided before the California Supreme

Court expressly relied on Harris’s “reasonable time”

STEWART V. CATE 15

language in 1993.9 Spears and Moss discuss the state’s

“laches” argument without reference to any “reasonable time”

standard. Bower’s timeliness analysis is cursory and

contained within a footnote. Finally, Burdan’s habeas

petition challenged parole proceedings and the Burdan court

specifically explained that the timeliness rules apply with less

force where the petitioner is challenging a parole board

determination. See 86 Cal. Rptr. at 558 (stating that a

collateral attack on a conviction must be timely in order to

“vindicate society’s interest in the finality of its criminal

judgments . . . [and] the public’s interest in the orderly and

reasonably prompt implementation of its laws . . . [and that]

requiring a prisoner to file his or her challenge promptly

helps ensure that possibly vital evidence will not be lost . . .

[and protects the] psychological repose that may come for the

victim [at the close of a criminal proceeding].”).

Regardless, even if a 100-day delay is occasionally

permitted upon a showing of good cause under California

law, Stewart has failed to demonstrate good cause for the

delay in this case. Stewart attempted to explain his delay in

filing his State Supreme Court Petition by alleging that “the

9

Harris relied on In re Clark, 855 P.2d 729, 738, n.5 (Cal. 1993), which

in addition to In re Robbins, 959 P.2d 311, 317–18 (Cal. 1998), is a case

that California courts currently use to signal that a case is untimely. See

Walker v. Martin, 131 S. Ct. 1120, 1124 (2011). Although Stewart

contends that Clark and Robbins apply only to capital habeas petitions, no

California case appears to make that distinction. To the contrary, several

California Court of Appeal cases have applied Clark and Robbins to

noncapital habeas petitions. See, e.g., In re Nunez, 93 Cal. Rptr.3d 242,

252 (Cal. Ct. App. 2009); In re Lucero, 132 Cal. Rptr. 3d 499, 504 (Cal.

Ct. App. 2011). In addition, the United States Supreme Court has held

that the Clark/Robbins reasonableness standard applies to California’s

non-capital habeas cases as well. See Walker, 131 S. Ct. at 1125.

16 STEWART V. CATE

investigation regarding newly discovered evidence was not

complete until May 2002.” However, the May 2002

discovery of information could not have any bearing on the

100-day gap between the May 23, 2003 denial of Stewart’s

State Court of Appeal Petition and the August 31, 2003 filing

of his State Supreme Court Petition. Stewart argues on

appeal that he made an additional showing of good cause

which the district court failed to consider, namely that he was

under prison emergency status and had no ability to research

his petition. This argument is similarly implausible. We note

that this “explanation” appeared in the “Supporting Facts”

section of Ground 2 of his State Supreme Court Petition, not

in the portion of the form petition which provides petitioners

with the opportunity to explain a filing delay. Regardless,

even if we consider Stewart’s “prison emergency status”

argument, it does not amount to a showing of good cause

justifying Stewart’s delay. As the district court pointed out,

“comparison of the appellate court habeas petition and the

state supreme court habeas petition reveals that [Stewart]

presented the same claims in both petitions” and that Stewart

did not present any new evidence to the California Supreme

Court. Thus, there is no indication that research was required

in the preparation of Stewart’s State Supreme Court Petition.

In addition, thirty days passed between the May 23, 2003

denial of Stewart’s State Court of Appeal Petition and the

prison emergency allegedly declared on June 23, 2003, and

there is nothing in the record to suggest that Stewart was

immediately transferred on that date. Even if that emergency

status were considered good cause for delay, Stewart still had

at least 30 days to file his State Supreme Court petition

(which was identical to his State Court of Appeal petition)

and he failed to do so.

STEWART V. CATE 17

Accordingly, Stewart’s § 2254 Petition was not statutorily

tolled during the 100-day gap between the denial of Stewart’s

State Court of Appeals Petition and the filing of his State

Supreme Court Petition. Stewart’s § 2254 Petition was not

timely filed.

B. Actual Innocence Claim.

“Actual innocence, if proved, serves as a gateway through

which a petitioner may pass whether the impediment is a

procedural bar . . . [or] expiration of the statute of

limitations.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928

(2013). When an otherwise time-barred habeas petitioner

“presents evidence of innocence so strong that a court cannot

have confidence in the outcome of the trial unless the court is

also satisfied that the trial was free of non-harmless

constitutional error,” the Court may consider the petition on

the merits. See Schlup v. Delo, 513 U.S. 298 (1995). The

Supreme Court has recently cautioned, however, that “tenable

actual-innocence gateway pleas are rare.” McQuiggin, 133 S.

Ct. at 1928. “[A] petitioner does not meet the threshold

requirement unless he persuades the district court that, in

light of the new evidence, no juror, acting reasonably, would

have voted to find him guilty beyond a reasonable doubt.” Id.

(citing Schlup, 513 U.S. at 329); see also House v. Bell,

547 U.S. 518, 538 (2006) (emphasizing that the Schlup

standard is demanding and seldom met). This exacting

standard sets an extremely high hurdle for Stewart. The

Schlup standard permits review only in the “extraordinary”

case. Schlup, 513 U.S. at 324–27 (emphasizing that “in the

vast majority of cases, claims of actual innocence are rarely

successful”). Under Schlup, we must “assess how reasonable

jurors would react to the overall, newly supplemented

record,” including all the evidence the petitioner now

18 STEWART V. CATE

proffers. Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011).

In conducting a Schlup gateway review, our “function is not

to make an independent factual determination about what

likely occurred, but rather to assess the likely impact of the

evidence on reasonable jurors.” House, 547 U.S. at 538.

Stewart contends that the district court misapplied Schlup

because it made discrete factual findings that relied on the

prior jury’s determination of facts, as opposed to assessing

how a reasonable juror would react to the totality of the

evidence. Specifically, Stewart claims that the district court

impermissibly discounted the declarations of Maurice League

and Tatianna Daniels and failed to consider the cumulative

effect of those declarations on the trial evidence. According

to Stewart, League and Daniels’s declarations undermined the

testimony of both Parish brothers with respect to

identification of Stewart and the vehicle used in the shooting.

Stewart also contends that Daniels’s declaration supported

Stewart’s claim that Jackson was the driver of the vehicle.

These arguments are without merit.

The standard of review for a Schlup claim is not entirely

settled in this circuit. On the one hand, Justice O’Connor,

who provided the fifth vote in Schlup, observed that the Court

had “decided that the district court committed legal error, and

thus abused its discretion,” and that “the Court does not

disturb the traditional discretion of district courts in this

area,” while also acknowledging that the Court did not

directly address the issue. 513 U.S. at 333–34 (O’Connor, J.,

concurring). Similarly, we invoked the language of abuse of

discretion review in Paradis v. Arave, stating that “[a]s the

district court applied an erroneous standard for the showing

of actual innocence here, it abused its discretion.” 130 F.3d

385, 396–99 (9th Cir. 1997); see also Roe v. Anderson,

134 F.3d 1400, 1402 n.1 (9th Cir. 1998) (abuse of discretion

STEWART V. CATE 19

review “has been subsequently adopted in numerous other

contexts,” citing Justice O’Connor’s concurrence in Schlup).

On the other hand, the Supreme Court has applied a form

of review in Schlup cases that more approximates de novo

review. See House, 547 U.S. at 539–53 (conducting an

independent application of the Schlup standard to the facts of

the case, rejecting the state’s argument that the district court’s

findings were conclusive, and commenting on the credibility

of witnesses); id. at 559–62 (Roberts, C.J., dissenting)

(challenging the majority’s failure to give deference to the

district court). We have also taken this approach. See Larsen

v. Soto, No. 10-56118, 2013 WL 6084250 at *6 n.6 (9th Cir.

Sept. 16, 2013, amended Nov. 20, 2013) (observing that “the

question whether [petitioner] has satisfied the Schlup standard

is a legal question that we review de novo”); Lee, 653 F.3d at

938–45; Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007).

Other circuits have reviewed Schlup claims de novo. See

Munchinski v. Wilson, 694 F.3d 308, 335 (3d Cir. 2012); Doe

v. Menefee, 391 F.3d 147, 163 (2d Cir. 2004) (maj. op. of

Sotomayor, J.); United States ex rel. Bell v. Pierson, 267 F.3d

544, 551-52 (7th Cir. 2001); Beeman v. Iowa, 108 F.3d 181,

184 (8th Cir. 1997); O’Dell v. Netherland, 95 F.3d 1214,

1250 (4th Cir. 1996) (en banc), aff’d on other grounds,

521 U.S. 151 (1997).

We need not determine which standard is correct in this

case, however, because under either standard Stewart has

failed to establish a Schlup claim. Our independent review

and analysis of the evidence corresponds with that offered by

the district court.

The record includes the following material evidence.

With respect to the Parish brothers’ identification of Stewart,

20 STEWART V. CATE

Mark Parish testified that Stewart was driving the vehicle;

shortly after the shooting, Mark described the driver as bald

but at trial clarified that the shooter had his hair in a ponytail

and just appeared bald; Mark received a phone call after the

shooting from a caller who identified the driver; and Mark

identified Stewart in a photo lineup. Michael Parish also

identified Stewart as the driver and identified Stewart in a

photo lineup. With respect to the vehicle involved in the

shooting, Mark Parish described a rust-colored BMW. Mark

further testified that he had previously described the BMW as

silver-gray because of its unusual paint job, which caused its

colors to change in differing lights. In his testimony, Michael

also described the vehicle as rust-colored. Both brothers

selected the actual paint color of the BMW from paint

samples shown to them at trial. The Parish brothers’

testimony was corroborated in part by their brother-in-law,

Sylvester Wade, a police detective. Shortly after the

shooting, both brothers had described the vehicle to Wade as

a “light silver-grayish or light-blue BMW.” Wade prepared

the photo lineups from which both brothers identified

Stewart.

Other evidence in the record includes the testimony of

other witnesses, as well as the additional evidence proffered

by Stewart, such as the declarations of League and Daniels.

League stated in his declaration that Mark Parish told League

that he was unsure who had shot him, and that the photo

identification of Lee and Stewart was the result of pressure.

Daniels stated that she was Jackson’s girlfriend at the time of

the shooting and that Jackson confessed to her that he was the

driver of a reddish-brown Honda from which another

individual, Arnold Adkins (now dead) shot the Parish

brothers. Some of the Parish brothers’ testimony at trial and

the League declaration suggest that the Parish brothers’

STEWART V. CATE 21

identification of Stewart and Lee may have been influenced

by “word on the street” regarding a subsequent shooting. The

record also includes Stewart’s testimony regarding his alibi

(that he was at home) and the possible evidentiary confusion

related to another gang-related shooting that occurred hours

after the Parish brothers were shot. In addition, Stewart

provided a declaration from William Allen, a friend and

fellow gang member, who contradicted a prosecution witness

who had testified that Stewart bragged about shooting the

Parish brothers at a football game. Two other declarations

from family members of the actual shooter suggest that

Jackson could have been the driver.

Ultimately, we conclude, as did the district court, that

Stewart has failed to pass through the Schlup gateway for a

number of related reasons. Jackson’s confession, which had

cast doubt on Lee’s convictions, could weaken the Parish

brothers’ identification of Stewart only by implication; in

fact, Jackson’s confession implicated Stewart while

exculpating Lee. In addition, Stewart had a weak alibi:

several witnesses, including his mother, placed him and his

BMW near the scene of the shooting, and his alibi witnesses

were impeached. Moreover, the evidence suggesting possible

confusion between the shooting of the Parish brothers and

another gang-related shooting on the same night called only

the Parish brothers’ identification of Lee into question.

Additional evidence related to the BMW implicated Stewart

as well: the BMW that witnesses saw at the scene of the

shooting was identical to the BMW that Stewart drove and

possessed the same distinctive wheel rims; Stewart’s BMW

had gun powder residue on it, and Stewart was found

cleaning the car in the middle of the night several hours after

the shooting. Although the Parish brothers gave conflicting

statements regarding the color of the BMW involved in the

22 STEWART V. CATE

shooting, they correctly identified the color at trial using paint

swatches and even the trial judge noted that the color was

difficult to describe. Stewart had ample opportunity to, and

did in fact challenge or attempted to cast doubt on all of this

BMW-related evidence at trial; the jury simply found his

efforts unpersuasive. Finally, additional eyewitness

testimony also linked Stewart’s BMW to the scene. The

evidence allegedly undermining Stewart’s “confession” (i.e.,

his boast to a witness about having “shot his homeboy”) was

of little significance given that the “confession” was only an

inference by a prosecution witness.10 Other declarations

offered by Stewart were similarly equivocal, as they did not

specifically exculpate Stewart.

Like the district court, we have reviewed the evidence

cumulatively, assessing the trial evidence and the various

deficiencies and conflicts therein. See House, 547 U.S. at

538; see also Lee, 653 F.3d at 945. We have also thoroughly

considered the additional evidence proffered by Stewart and

its potential exculpatory effect, including the League and

Daniels declarations. League’s declaration was duplicative

of testimony offered at trial by Kenneth Anderson, who stated

that Michael Parish told him he did not know if Stewart and

Lee had shot him, and that he was getting pressure from his

parents and the police. Daniels’s statement that Jackson had

confessed to driving a reddish-brown Honda from which

10

At trial, prosecution witness Kevin Brown testified that he saw

Stewart at his football practice, where Stewart told him “I shot your

homeboy.” Brown assumed Stewart was referring to one of the Parish

brothers. In his federal post-conviction relief proceedings, Stewart offered

a statement from William Allen, a friend and fellow gang member, who

stated that he had never seen Stewart at Brown’s football practice. The

district court correctly concluded that inferential value of Brown’s

testimony and the impeachment value of Allen’s statement were minor.

STEWART V. CATE 23

Arnold Adkins shot the Parish brothers was contradicted by

the eyewitness testimony describing a light-colored BMW at

the scene, as well as the testimony of the Parish brothers. As

the district court explained, “considering all the evidence,

which includes the evidence presented at and excluded from

trial, as well as the District Attorney’s investigation file and

the post-conviction declarations obtained from Stewart,

Stewart has failed to show that this is one of the

‘extraordinary’ cases where ‘a court cannot have confidence

in the outcome of the trial.’” We reach this conclusion in

light of “how reasonable jurors would react to the overall,

newly supplemented record.” House, 513 U.S. at 538.11

C. Request for Evidentiary Hearing

Stewart requested an evidentiary hearing on his Amended

§ 2254 Petition, contending that Schlup requires a hearing

where credibility of witnesses is at issue. The district court

declined the request. Stewart challenges that decision on

11

Our conclusion is not inconsistent with House; in fact, a brief

comparison with the facts of House demonstrates the thinness of Stewart’s

evidentiary showing in this case. In House, the defendant’s new forensic

evidence seriously undermined forensic evidence presented at trial that

was crucial to the prosecution’s case. Other new evidence created a

strong, credible counter-narrative about whom the real perpetrator might

have been. See 547 U.S. at 552–53. By contrast, none of the evidence

Stewart offers would have had such a substantial effect in undermining the

prosecution’s case. Moreover, the House Court noted that, “considered

in isolation,” a reasonable jury might well disregard the [new] forensic

evidence, or the evidence implicating a different suspect.” See id. at 548,

552–53. “In combination, however, with the challenges to the [forensic]

evidence, and the lack of motive with respect to [the defendant], the

evidence pointing to [a different suspect] would likely reinforce other

doubts as to [the defendant’s] guilt.” Id. at 552–53. Stewart’s evidence,

even “in combination” does not achieve this effect.

24 STEWART V. CATE

appeal, contending that the district court improperly made

credibility determinations without an evidentiary hearing.

Schlup requires a petitioner “to 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. The habeas court then “consider[s]

all the evidence, old and new, incriminating and

exculpatory,” admissible at trial or not. Lee, 653 F.3d at 938

(citing House, 547 U.S. at 538). On this complete record, the

court makes a “probabilistic determination about what

reasonable, properly instructed jurors would do.” Id.

(citations omitted). Under the Schlup gateway standard,

newly presented evidence may call into question the

credibility of the witnesses presented at trial. See Schlup,

513 U.S. at 330. In such a case, “the habeas court may have

to make some credibility assessments.” Id. No controlling

legal standard exists regarding whether the credibility

assessment contemplated in Schlup requires an evidentiary

hearing and if so, under what circumstances.12 Generally, in

12

The parties do not cite any case law articulating a legal standard

regarding when an evidentiary hearing on a gateway Schlup claim is

required. There does not appear to be any controlling law on this issue.

The Schlup Court suggested that when considering an actual-innocence

claim in the context of a request for an evidentiary hearing, the district

court need not “test the new evidence by a standard appropriate for

deciding a motion for summary judgment,” but rather may “consider how

the timing of the submission and the likely credibility of the affiants bear

on the probable reliability of that evidence.” 513 U.S. at 331–32. The

Fourth Circuit has left open the possibility that a Schlup credibility

determination could be made based on a cold record as opposed to an

evidentiary hearing. See Teleguz v. Pearson, 689 F.3d 322, 331 (4th Cir.

2012). Stewart incorrectly cites Johnson v. Finn, 665 F.3d 1063 (9th Cir.

2011) in support of his claim that due process requires an evidentiary

STEWART V. CATE 25

this Circuit, “a habeas petitioner should receive an

evidentiary hearing when he makes ‘a good-faith allegation

that would, if true, entitle him to equitable tolling.’” Roy,

465 F.3d at 969 (citing Laws v. Lamarque, 351 F.3d 919, 919

(9th Cir. 2003)).

We review the district court’s decision not to conduct an

evidentiary hearing for abuse of discretion. Roy, 465 F.3d at

968. Given the strength of the evidence before the district

court and the court’s method of evaluating that evidence, we

conclude that the district court did not abuse its discretion in

denying Stewart’s request for an evidentiary hearing. The

district court correctly noted that newly-presented evidence

giving rise to a Schlup gateway innocence claim may require

a credibility assessment. The district court therefore assumed

that Stewart’s newly-presented evidence was credible and

thoroughly evaluated his actual innocence claim in light of

the newly-presented evidence. The court ultimately

concluded, however, that the new evidence did not adequately

support Stewart’s actual innocence claim. The district court

noted that Stewart’s newly-presented evidence could, at best,

challenge the credibility of the Parish brothers’ testimony, but

that even if the Parish brothers’ testimony were discredited,

sufficient direct and circumstantial evidence independent of

their testimony placed Stewart and his car at the scene of the

shooting. The district court explained: “even assuming the

declarations now provided by Stewart (including the Lee

declaration) are credible, and assuming the Parish brothers’

hearing anytime credibility is at issue. Johnson is not on point, as it holds

that a district judge may not reject the credibility finding of a magistrate

judge in the context of a suppression motion or a Batson claim without

holding a new evidentiary hearing. Id. at 1066. Neither of those scenarios

is applicable to Stewart’s case.

26 STEWART V. CATE

identification of Stewart is not credible, the evidence

presented by Stewart has not caused the Court to ‘lose

confidence in the outcome of the trial.” Schlup, 513 U.S. at

316. Accordingly, an evidentiary hearing is not necessary to

resolve Stewart’s Schlup claim.” Thus, the district court

concluded that even if it fully credited Stewart’s new

evidence (which would be the best result Stewart could

achieve at an evidentiary hearing), Stewart would not be

entitled to the relief requested. The district court was entitled

to deny Stewart’s request for an evidentiary hearing under

these circumstances. See Lee, 653 F.3d at 945 (“assuming

arguendo” that new evidence was reliable and rejecting

Schlup gateway claim).

Stewart takes issue with the district court’s conclusion

that the newly-discovered evidence, even if fully credited,

would not cause a reviewing court to lose confidence in the

outcome of the trial. Specifically, Stewart claims that if

deemed credible, the declarations he submitted after trial

would establish that: (1) Darnell Jackson confessed to being

the driver in the Parish brother shooting; (2) Jackson drove a

rust-colored Honda similar to the vehicle described by the

Parish brothers; and (3) Mark Parish was not sure who shot

him and his identification was the result of pressure.

According to Stewart, these three findings would raise

reasonable doubt in the mind of a juror. This argument is

without merit for the reasons stated above. The first two

“new facts” listed by Stewart are supported solely by the

declaration of Tatiana Daniels. Daniels states that Jackson

admitted that he was driving a reddish-brown Honda from

STEWART V. CATE 27

which Adkins shot the Parish brothers.13 This alleged

statement by Jackson is at odds with Jackson’s earlier

statement - which prompted Lee’s conviction to be vacated -

that Stewart drove the vehicle from which Adkins shot the

Parish brothers. It is also contradicted by eye-witness

testimony describing a light-colored BMW drive away from

the scene as well as subsequent in-court identification by the

Parish brothers of the BMW paint color they described

alternately as “rust” and “light grey.” Maurice League’s

declaration that Mark Parish told him he was not sure who

shot him and that the identification was the result of pressure

was duplicative of evidence presented at trial through the

testimony of Kenneth Anderson. The district court had ample

support for its conclusion that Stewart’s newly-discovered

evidence did not tip the Schlup determination in his favor.

IV. CONCLUSION

Based on the foregoing, we conclude that Stewart is not

entitled to statutory tolling and that he did not make a

showing of actual innocence sufficient to pass through the

Schlup gateway. The district court properly reached its

decision without an evidentiary hearing. Because the

Amended § 2254 Petition is time-barred, we need not

consider the district court’s conclusion that the Petition failed

13

In his declaration, Roy Vinson stated that Jackson possessed a .357

caliber revolver which Jackson said had been used in “a shooting.” This

declaration does not directly link Jackson to the shooting of the Parish

brothers.

28 STEWART V. CATE

to state a federal claim. The judgment of the district court is

therefore AFFIRMED.14

BERZON, Circuit Judge, dissenting:

I respectfully dissent. I would reverse the district court’s

dismissal of Stewart’s habeas petition.

In my view, Stewart was entitled to statutory tolling of the

Antiterrorism and Effective Death Penalty Act’s (“AEDPA”)

one-year limitations period during the 100-day interval

between his successive state habeas petitions. Alternatively,

I would remand with instructions to hold an evidentiary

hearing on Stewart’s claim for an equitable exception to

AEDPA’s filing deadline under Schlup v. Delo, 513 U.S. 298

(1995), as applied in McQuiggin v. Perkins, 133 S. Ct. 1924

(2013), to timeliness issues.1 Stewart has presented post-

conviction evidence that, if credible, demonstrates this case

to be the sort of extraordinary one that, under Schlup, requires

reaching the merits of his otherwise barred federal habeas

claims.

In holding otherwise, the majority treats the applicable

standard of review as unsettled, when that is not so—there is

no doubt a de novo standard is applicable. Additionally, the

14

IT IS FURTHER ORDERED THAT Stewart’s Motion to

Supplement and request for judicial notice filed on December 23, 2010

(Dkt. No. 13) is DENIED AS MOOT.

1

For convenience, I refer in this dissent to both the Schlup and

McQuiggin exceptions as Schlup claims.

STEWART V. CATE 29

majority seriously misapprehends the record it reviews; on

the current record, considered properly, Stewart should be

accorded an evidentiary hearing as to his Schlup claim.

I.

A.

AEDPA’s one-year limitations period is tolled for “[t]he

time during which a properly filed application for State post-

conviction or other collateral review . . . is pending.”

28 U.S.C. § 2244(d)(2). A petition is “pending” during the

interval between a lower state court’s adverse decision and

the filing of an appeal only when the appeal is timely. Evans

v. Chavis, 546 U.S. 189, 191 (2006). Under California’s

unusual collateral review system, petitioners are required to

file successive petitions for habeas corpus to each higher

court in turn, each successive petition serving as the

equivalent to a notice of appeal. See Walker v. Martin, 131

S. Ct. 1120, 1125–26 (2011) (describing California’s system

of post-conviction review). This “equivalent of a notice of

appeal is timely if filed within a ‘reasonable time.’” Chavis,

546 U.S. at 192 (quoting In re Harris, 5 Cal. 4th 813, 828 n.7

(1993)). Under this indeterminate system, there is no firm

upper limit on the length of time that California courts

consider reasonable for interval tolling between successive

habeas petitions. See, e.g., In re Reno, 283 P.3d 1181, 1208

(Cal. 2012). By retaining discretion, California courts may

“home in on case-specific consideration and . . . avoid the

harsh results that sometimes attend consistent application of

an unyielding rule.” Martin, 131 S. Ct. at 1130.

Chavis permitted interval tolling under California’s

system of collateral review on the assumption “that

30 STEWART V. CATE

California’s ‘reasonable time’ standard would not lead to

filing delays substantially longer than those in States with

determinate timeliness rules.” Id. at 199–200 (emphasis

added) (citing Carey v. Saffold, 536 U.S. 214, 222–23

(2002)); accord Velasquez v. Kirkland, 639 F.3d 964, 967

(9th Cir. 2011). The Court looked to the “30 to 60 days[] that

most States provide for filing an appeal to the state supreme

court” as a point of comparison for assessing whether the

interval between the filing of successive state habeas petitions

conforms to California’s “reasonable time” requirement.

Chavis, 546 U.S. at 201.

But Chavis did not hold that a delay longer than 60 days

could never be reasonable. It held unreasonable only the

unexplained six-month delay before the Court. Absent

justification, that six-month interval was “far longer than the

‘short period[s] of time’ that most States provide for filing an

appeal to the state supreme court.” Id. (alteration in

original).2

2

Since Chavis, “California law has not clarified whether a filing delay

greater than 60 days necessarily qualifies as ‘substantial.’” Chaffer v.

Prosper, 542 F.3d 662, 666 (9th Cir. 2008) (“Chaffer I”) (emphasis

added). The Supreme Court of California denied our request for

certification of that question in Chaffer I, and has not answered it since.

See Chaffer v. Prosper, 592 F.3d 1046, 1048 n.1 (9th Cir. 2010) (per

curiam) (“Chaffer II”) (“California has not provided any guidance as to

what constitutes a timely non-capital habeas petition.”); accord Velasquez,

639 F.3d at 967. We have characterized “California’s reasonableness

standard [as] commensurate with the limitations of other states, which are

30 or 45 days.” Cross v. Sisto, 676 F.3d 1172, 1176, 1179 (9th Cir. 2012)

(emphasis added) (citing Carey, 536 U.S. at 222). But neither the

Supreme Court of the United States nor California’s high court has held

that California’s indeterminate “reasonable time” period is uniformly

coextensive with other states’ limitations.

STEWART V. CATE 31

Whether California courts would consider a given filing

delay reasonable is inherently a fact- and circumstance-

specific question, Martin, 131 S. Ct. at 1130; the shortest

period deemed “unreasonable” under California law in one

case does not necessarily mark the longest delay permissible

in another. Accordingly, while we have held that multiple

unexplained delays of 80 to 115 days between successive

petitions are “unreasonable” under California law, see

Velasquez, 639 F.3d at 968; Chaffer II, 592 F.3d at 1048, that

does not mean that the single period of 100 days at issue in

Stewart’s case could not be reasonable, in light of his

circumstances. In particular, the petitioner in Velasquez was

“represented by counsel at all stages.” 639 F.3d at 968.

Stewart, in contrast, filed his petition to the California

Supreme Court pro se, a difference California courts often

emphasize in holding delayed filings reasonable. See, e.g., In

re Saunders, 472 P.2d 921, 925–26 (Cal. 1970); In re Lucero,

132 Cal. App. 4th 38, 44–45 (Ct. App. 2011); In re Burdan,

169 Cal. App. 4th 18, 31 (2008).

In a recent case, we left open the possibility that a four-

and-a-half-month delay may be reasonable under California

law. We remanded to the district court to determine in the

first instance whether the prisoner’s petition was timely,

noting that the interval “may be within the range of

reasonableness if [the petitioner’s] explanation for the delay

is adequate under California law.” Noble v. Adams, 676 F.3d

1180, 1184 (9th Cir. 2012). Noble emphasized that “the

California Court of Appeal has excused delays of several

months where the petitioner offered an adequate explanation

for the delay,” particularly in pro se cases. Id. (citing In re

Burdan, 169 Cal. App. at 30–31 (excusing a delay of ten

months for a pro se petitioner whose attorney said he would

handle the appeal but did not do so); In re Crockett, 159 Cal.

32 STEWART V. CATE

App. 4th 751, 757–58 (2008) (excusing a delay of

approximately five months where the attorney “had no prior

experience with appellate writs and could not obtain the

assistance of experienced appellate counsel”)).

The majority’s attempt to cabin the holding of In re

Burdan, one of the cases cited in Noble, to the context of

petitions challenging parole decisions is unconvincing. To be

sure, In re Burdan explained that the rationale for requiring

prompt filing of habeas petitions challenging convictions in

the capital context does not apply “where a life prisoner

challenges a parole decision.” 169 Cal. App. 4th at 31. But

the court went on to state in a separate paragraph, “[a]t any

rate”—in others words, the policy considerations underlying

the timeliness rules aside—“[w]e do not find a delay of 10

months for an unrepresented prison inmate to file a petition

for writ of habeas corpus in the Court of Appeal, after denial

of a similar petition in the superior court, to be

unreasonable.” Id.

In addition to the cases cited in Noble, several other

California cases have permitted the filing of a habeas petition

more than 100 days after a lower court’s denial of the

preceding petition. See In re Bower, 38 Cal. 3d 865, 873 n.3

(1985); In re Moss, 175 Cal. App. 3d 913, 921–22 (1985); In

re Spears, 157 Cal. App. 3d 1203, 1208 (1984). The majority

finds none of these cases persuasive, but only because it reads

them selectively.

For example, the majority dismisses the relevance of In re

Spears and In re Moss on the ground that they predate the

California Supreme Court’s express use of the “reasonable

time” language from In re Harris, 5 Cal. 4th at 828 n.7 (citing

In re Clark, 855 P.2d 729, 751–52 (Cal. 1993)), and therefore

STEWART V. CATE 33

contain no discussion of the operative timeliness standard.

See Maj. Op. at 14–15 & n.9. But Harris relied on In re

Clark, which, by its own terms, did not “modify the

timeliness requirements applicable to all habeas corpus

petitions,” except for certain exceptions not pertinent here.

In re Clark, 855 P.2d at 751; accord In re Sanders, 981 P.2d

1038, 1047 (Cal. 1999). In any case, the majority overlooks

the content of the Spears and Moss: Spears unequivocally

states that “18 months is not a significant delay.” 157 Cal.

App. 3d at 1208 (citing In re Hancock, 67 Cal. App. 3d 943,

945 n.1 (1972)). And Moss held that, given the petitioner’s

inability to secure appellate counsel, “a delay of nine months

. . . is not a significant delay.” 175 Cal. App. 3d at 922.

The majority’s dismissal of In re Bower as insufficiently

reasoned is equally unconvincing. See Maj. Op. at 15.

Rather, the cursory character of Bower’s analysis indicates

that the Supreme Court of California considered it

unnecessary to expound on why a delay of less than one year

is not “undue.” See 38 Cal. 3d at 873 n.3. Presumably, a

considerably shorter delay, 100 days, would require even less

explanation.

In short, the single 100-day delay between the California

Court of Appeal’s denial of Stewart’s petition on May 23,

2003 and the filing of his subsequent pro se petition in the

California Supreme Court on August 31, 2013 was not

necessarily unreasonable under California law.

B.

Moreover, unlike the petitioner in Velasquez, 639 F.3d at

968, and like the petitioners in Spears, Moss, Bower, and

Burdan, Stewart offered an explanation for the delay, one that

34 STEWART V. CATE

California courts would likely find adequate. In his petition

to the Supreme Court of California, Stewart wrote: “Due to

[sic] state of emergency status declared June 23, 2003 at

Salinas Valley State Prison, and the transferring of petitioner

out of Salinas Valley State Prison to Calipatria State Prison,

the writ is brought in a timely period.” The district court did

not acknowledge this explanation, let alone assess its

adequacy under California law. The majority, in turn,

dismisses the state of emergency and prison transfer as an

“implausible” excuse for the filing delay, on the ground that

no research was required in the preparation of the petition to

the California Supreme Court because it presented no new

evidence or claims. See Maj. Op. at 16.

In sharp contrast to the majority’s dismissive approach to

Stewart’s explanation, the Supreme Court in Chavis evaluated

a California habeas petitioner’s explanation for his delay by

“viewing every disputed issue most favorably to [him].”

546 U.S. at 201. Viewed through the Chavis prism, rather

than that of the majority, Stewart’s explanation for the delay

in filing his California Supreme Court petition passes muster.

The need for ongoing investigation or research is but “one

example of good cause,” not the only potential justification

for delay during prison lockdowns and transfers. In re

Robbins, 18 Cal. 4th 770, 805 (1998). There are other

impediments that a prison’s emergency status may pose to the

timely filing of a prisoner’s pro se petition. While Stewart’s

opening brief on appeal mentioned his inability to “research

his petition” due to “a lock-down” and “subsequent transfer,”

it also cited, more generally, “limited access to resources due

to the prison emergency and subsequent transfer.”

STEWART V. CATE 35

The mechanics of re-drafting and filing a petition,

including obtaining the papers previously filed, copying them

by accessing means of duplication, procuring suitable

packaging material for the documents, and determining the

location of the appropriate court, can all be onerous for a pro

se prisoner, lacking both legal training and resources.

Stewart’s assertions permit an inference that the restrictions

on his movements imposed during the state of emergency and

changes in his custodial conditions made it difficult for him

to accomplish such tasks. Thus, while the fact that the claims

and supporting evidence presented in successive habeas

petitions are nearly identical undercuts excusing a lawyer’s

delay in filing a petition, see Velasquez, 639 F.3d at 968, the

multiple difficulties prisoners proceeding pro se encounter

while in lockdown and during transfers are indeed pertinent

to excusing delay, even where the successive petitions are

similar or identical.

Finally, that Stewart’s “explanation” appeared in the

“Supporting Facts” section of his pro se petition to the

California Supreme Court rather than the designated portion

of the form, see Maj. Op. at 16, has no bearing on whether it

may adequately justify the delay. I have found no

indication—and the majority cites none—that California

courts would consider such a technical factor dispositive and

so refuse to consider an explanation that does provide good

cause for delay.

I conclude that, in light of the explanation Stewart

offered, California courts would not consider the 100-day

period between the state Court of Appeal disposition and the

filing of Stewart’s habeas petition in the California Supreme

Court unreasonable. The majority’s contrary conclusion

generates precisely the sort of “harsh results” California has

36 STEWART V. CATE

sought to avoid, by adopting a discretionary system. Martin,

131 S. Ct. at 1130. I would therefore reverse the district

court’s dismissal of Stewart’s petition as untimely.

II.

Even if Stewart is not entitled to statutory tolling and his

federal petition would therefore be time-barred under

AEDPA, he may be entitled to an equitable exception to

§ 2244(d)(1). In my view, he has presented evidence of

actual innocence that, if credible, is sufficient to pass through

the Schlup gateway. See Perkins, 133 S. Ct. at 1931; Larsen

v. Soto, — F.3d —, No. 10-56118, 2013 WL 6084250, at *10

(9th Cir. Sept. 16, 2013); Lee v. Lampert, 653 F.3d 929, 934

(9th Cir. 2011) (en banc). Reviewing Stewart’s Schlup

showing de novo, and in light of all available evidence, I

would hold that an evidentiary hearing is necessary to

determine whether he has shown that it is more likely than

not that no reasonable juror would have convicted him on the

supplemented record, and thus that he is entitled to have his

“otherwise time-barred claims heard on the merits.” Lee,

653 F.3d at 932, 937. I would therefore reverse and remand

for the district court to hold a Schlup hearing.

A.

The majority suggests that the case law is ambiguous

concerning the correct standard of review—de novo or abuse

of discretion—for Schlup actual innocence claims. That

characterization is plain wrong. By reopening a settled issue,

the majority has, with no justification, muddied our

jurisprudence. Moreover, Schlup claims arise with some

frequency, and, as I believe may be true here, the correct, de

novo standard of review can often make a difference.

STEWART V. CATE 37

As the majority acknowledges, see Maj. Op. at 9, we

generally review the denial of a § 2254 petition de novo,

whether that denial turns on procedural grounds or on the

merits of the petition. See Stancle v. Clay, 692 F.3d 948,

952–53 (9th Cir. 2012) (reviewing de novo the denial of a

petition on timeliness grounds); Waldron-Ramsey v.

Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (reviewing de

novo whether the statute of limitations should be equitably

tolled). The same standard applies to the district court’s

determination that a petitioner has failed to meet Schlup’s

actual innocence standard. Neither precedent nor policy

supports any contrary conclusion.

i.

Precedent makes clear beyond dispute that de novo review

is proper. Most notably, recent en banc decisions have

evaluated Schlup claims by independently and exhaustively

reviewing the supplemented records that such cases present.

In Lee v. Lampert, for example, an en banc panel of this

Court intensively canvassed the supplemented record to make

its own “probabilistic determination about what reasonable,

properly instructed jurors would do” if faced with the new

evidence, as the Schlup standard demands. 653 F.3d at 938

(internal quotation marks omitted); see also Smith v. Baldwin,

510 F.3d 1127, 1139–46 (9th Cir. 2007) (en banc)

(canvassing the supplemented record exhaustively to assess

a Schlup claim). In Sistrunk v. Armenakis, to name another

example, “[t]he sole issue on appeal” was a Schlup claim, yet

the en banc court still observed that the denial of a habeas

petition was properly reviewed de novo. 292 F.3d 669,

672–77 (9th Cir. 2002) (en banc). Three-judge panels of this

Court have conducted similarly comprehensive and

independent reviews of the supplemented records petitioners

38 STEWART V. CATE

have presented to them. See, e.g., Gandarela v. Johnson,

286 F.3d 1080, 1085–87 (9th Cir. 2001); Wood v. Hall,

130 F.3d 373, 379 (9th Cir. 1997). Most recently, a three-

judge panel of this Court observed that satisfaction of “the

Schlup standard is a legal question that we review de novo.”

Larsen, 2013 WL 6084250, at *6 n.6. Although none of these

cases explained why they conducted de novo review of Schlup

claims, that is exactly what they did. And the circuits that

have confronted the issue expressly have all concluded that

de novo review of Schlup claims is appropriate. See

Munchinski v. Wilson, 694 F.3d 308, 337 (3d Cir. 2012); Doe

v. Menefee, 391 F.3d 147, 163 (2d Cir. 2004); United States

ex rel. Bell v. Pierson, 267 F.3d 544, 552 (7th Cir. 2001);

Beeman v. Iowa, 108 F.3d 181, 184 (8th Cir. 1997); O’Dell

v. Netherland, 95 F.3d 1214, 1250 (4th Cir. 1996) (en banc),

aff’d, 521 U.S. 151 (1997).

True, as the majority points out, Paradis v. Arave

reversed the denial of a habeas petition alleging actual

innocence under Schlup on the ground that, because “the

district court applied an erroneous [legal] standard for the

showing of actual innocence here, it abused its discretion.”

130 F.3d 385, 396 (9th Cir. 1997). But that decision

preceded the en banc cases I have cited. See Ortega-Mendez

v. Gonzales, 450 F.3d 1010, 1019 (9th Cir. 2006) (explaining

that three-judge panels are not bound by the decision of a

prior three-judge panel when it is irreconcilable with a

subsequent en banc decision). Further, Paradis mentioned

the standard of review in passing; it had no occasion to

consider, and did not, whether a more stringent standard was

appropriate, as the district court’s decision flunked even the

most deferential review. Further, where the challenge is to

the legal standard applied, abuse of discretion and de novo

review reach the same result; it is with respect to mixed

STEWART V. CATE 39

questions of fact and law that the difference between the two

standards matters most, cf. United States v. Hinkson, 585 F.3d

1247, 1259–60 (9th Cir. 2009) (en banc), and such a question

was not at issue in Paradis.

The majority’s invocation of Justice O’Connor’s

concurrence in Schlup—which supposedly supports abuse-

of-discretion review—fares no better. As Justice O’Connor

recognized in her Schlup concurrence, the majority opinion

in that case did not “speak to the standard of appellate

review.” 513 U.S. at 334. It did not need to do so, because

the underlying decision in that case was—just as in

Paradis—based “on an erroneous view of the law,” and thus

failed even under deferential review. Id. at 333. A

concurrence of one justice as to an issue concededly not

decided by the majority is not precedent.

Moreover, a Supreme Court case subsequent to Schlup,

House v. Bell, 547 U.S. 518 (2006), essentially applied de

novo review to a Schlup claim. That case observed that

“[d]eference is given to a trial court’s assessment of evidence

presented to it in the first instance.” Id. at 539. But House

then explained that “the Schlup inquiry . . . requires a holistic

judgment about ‘all the evidence,’” an inquiry which “does

not turn on discrete findings regarding disputed points of fact,

and ‘[i]t is not the district court’s independent judgment as to

whether reasonable doubt exists that the standard addresses.’”

Id. at 539–40 (quoting Schlup, 513 U.S. at 328, 329)

(emphases added). The majority recognizes, correctly, that

the standard in House “approximates de novo review.” Maj.

Op. at 19.

Here—unlike in House—there has been no evidentiary

hearing, and the trial court purported to accept all the

40 STEWART V. CATE

evidence “presented to it in the first instance” as credible.

There was therefore no occasion to make factual findings as

to that evidence in isolation. House thus confirms that the

application of the Schlup standard on the entire record is one

as to which the district court neither finds facts nor exercises

discretion. De novo review is therefore appropriate.3

In short, my colleagues read the relevant precedents

incorrectly. The applicable case law is in no way

indeterminate as to the applicable standard of review for

Schlup issues. De novo consideration is the proper standard.

The majority’s equivocation upends settled law, sowing doubt

where there should be none. “Our task to clarify the

law—not to muddy the waters.” United States v. Virginia,

518 U.S. 515, 574 (1996) (Scalia, J., dissenting). The

majority inverts that commonsense maxim.

ii.

If the proper standard of review were an open

question—which it is not—we should be answering that

question, not leaving it open to perplex future litigants and

panels. And were we to approach the issue afresh, we could

only conclude that de novo review is proper for Schlup

claims.

3

McQuiggin noted, in passing, that on remand “the District Court’s

appraisal of Perkins’ petition as insufficient to meet Schlup’s actual-

innocence standard should be dispositive, absent cause . . . .” 133 S. Ct.

at 1936 (emphasis added). This language does not describe any of the

usual standards of review—e.g., de novo, clear error, abuse of discretion.

“Absent cause” could mean “unless incorrect”; it certainly does not mean

“abuse of discretion.”

STEWART V. CATE 41

Selecting an appropriate standard of review often requires

assessing whether “one judicial actor . . . [is] better positioned

than another to decide the issue in question.” Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 403 (1990) (internal

quotation marks omitted). De novo review is especially

appropriate where, as here, relief turns on application of

“‘fluid concepts that take their substantive content from the

particular contexts in which the standards are being

assessed.’” Cooper Indus., Inc. v. Leatherman Tool Grp.,

Inc., 532 U.S. 424, 436 (2001) (quoting Ornelas v. United

States, 517 U.S. 690, 696 (1996)); accord Harte-Hanks

Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 686 (1989).

Allocating authority over such concepts to appellate courts

with supervisory power facilitates the uniform development

of the law and enhances predictability. Cooper Indus.,

532 U.S. at 436; Ornelas, 517 U.S. at 697; Salve Regina

College v. Russell, 499 U.S. 225, 231 (1991). Such

coherence and uniformity are especially necessary where “the

stakes—in terms of impact on future cases and future

conduct—are too great to entrust them finally to the judgment

of the trier of fact.” Bose Corp. v. Consumers Union of the

United States, Inc., 466 U.S. 485, 501 n.17 (1984).

All these concerns apply here. The Schlup standard is, in

its very nature, “fluid.” Much like probable cause or

reasonable suspicion, which the Court has characterized as

“fluid concepts” subject to de novo review, Ornelas, 517 U.S.

at 696, the Schlup standard describes a probabilistic inquiry

that emphasizes differences of degree rather than kind.

Retaining appellate control over that standard is essential for

two, interrelated reasons. First, the interest Schlup

protects—avoiding conviction of an actually innocent

person—reflects a concern that “has long been at the core of

our criminal justice system.” 513 U.S. at 325. Second, and

42 STEWART V. CATE

conversely, appellate courts must guard against excessive

application of the Schlup standard, “[t]o ensure that the

fundamental miscarriage of justice exception . . . remain[s]

‘rare’ and [is] only applied in the ‘extraordinary case.’” Id.at

321, 324. Preserving the narrow scope of such a vague but

important standard thus requires substantial appellate

oversight.

By contrast, none of the usual justifications for deference

apply here. “When, for example, the issue involves the

credibility of witnesses and therefore turns largely on an

evaluation of demeanor, there are compelling and familiar

justifications for leaving the process of applying law to fact

to the trial court and according its determinations

presumptive weight.” Miller, 474 U.S. at 114. At the pre-

evidentiary hearing stage, this consideration has no

application whatever (and only a limited application after an

evidentiary hearing, as House explains, 597 U.S. at 539–40).

Similarly, “it is ‘especially common’ for issues involving

supervision of litigation to be reviewed for abuse of

discretion.” Salve Regina, 499 U.S. at 233 (quoting Pierce v.

Underwood, 487 U.S. 552, 558 n.1 (1988)). This deference

recognizes the trial judge’s traditional control over the

conduct of a trial, and his need for “broad power to cope with

the complexities and contingencies inherent in the adversary

process.” Geders v. United States, 425 U.S. 80, 86 (1976).

The Schlup standard, however, concerns matters never

presented at trial, and thus does not trespass on the trial

judge’s traditional bailiwick. Indeed, a court evaluating a

Schlup claim is not “bound by the rules of admissibility that

would govern at trial” and may include in its assessment

evidence that “was either excluded or unavailable at trial.”

STEWART V. CATE 43

Schlup, 513 U.S. at 327–28; accord Lee, 653 F.3d at 938

(quoting House, 547 U.S. at 538)).

Ultimately, then, pertinent policy considerations compel

the conclusion that precedent supports: This Court must

review Schlup claims de novo, not for abuse of discretion.

iii.

Analogy to parallel bodies of law further confirms this

conclusion. Consider, for example, review of claims of

insufficient evidence under Jackson v. Virginia, 443 U.S. 307

(1979). The Schlup standard is structurally similar to—

although it is substantively distinct from—the Jackson

standard. Whereas Jackson asks whether a rational trier of

fact could convict on the record evidence, Schlup asks

whether a reasonable trier of fact would more likely than not

convict on a supplemented record. See Schlup, 513 U.S. at

330; Lee, 653 F.3d at 938 n.13.

If anything, Schlup claims are more amenable to de novo

review than Jackson claims: Jackson entails assessment of

the trier of fact’s actual findings, usually after the

presentation of live testimony, and thus treads more heavily

on the factfinder’s traditional prerogatives. See Schlup,

513 U.S. at 330. By contrast, the Schlup standard “focuses

the inquiry on the likely behavior of the trier of fact,” before

the trier of fact has had any opportunity to consider evidence

contained in the supplemented record. Id. Nevertheless, this

Court reviews de novo a district court’s assessment of the

evidence under Jackson. See, e.g., United States v. Garrido,

713 F.3d 985, 999 (9th Cir. 2013). A fortiori, it ought to

review Schlup claims under the same standard.

44 STEWART V. CATE

Harmless error determinations offer a second useful

analogy. Harmless error standards vary widely by doctrinal

context. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 637

(1993); Strickland v. Washington, 466 U.S. 668, 694 (1984);

Chapman v. California, 386 U.S. 18, 24 (1967). Despite this

variety, harmless error analysis, much like the Schlup

standard, always concerns a hypothetical question—whether

the trier of fact would have arrived at a different conclusion

but for the error. By no means does such counterfactual

analysis require appellate courts to act as “a second jury to

determine whether the defendant is guilty.” Neder v. United

States, 527 U.S. 1, 19 (1999) (internal quotation marks

omitted). Instead, the court reviews the entirety of the record

“‘in typical appellate-court fashion’” to predict the outcome

absent the error. United States v. Rodrigues, 678 F.3d 693,

696 (9th Cir. 2012) (emphasis added) (quoting Neder,

527 U.S. at 19). Such review is de novo. Id. So, too, here:

Schlup poses a hypothetical question answered by surveying

the record, and we appropriately review the district court’s

counterfactual conclusion de novo.

iv.

Finally, neither the lengthiness nor the commendable

exhaustiveness of the district court’s discussion of the

evidence can alter the de novo nature of our review. To be

sure, the district court’s thorough analysis of the record

greatly eases our work, by blazing a trail through the

evidence and pointing to the factual intersections most

important to our ultimate inquiry. It remains our task,

however, to predict from the supplemented record in its

entirety, not what actually happened, but what a reasonable

and properly instructed jury would have concluded, had it

STEWART V. CATE 45

been faced with the new evidence as well as that presented at

trial.4

As to the district court’s decision not to hold an

evidentiary hearing before ruling on Stewart’s Schlup claim,

that ruling, as the majority correctly notes, is reviewed for

abuse of discretion. See Smith, 510 F.3d at 1137. But if we

are unable, without an evidentiary hearing, to determine the

“likely impact” of the petitioner’s new evidence of innocence

“on reasonable jurors,” Lee, 653 F.3d at 945, as Schlup

requires, then the district court’s denial of Stewart’s request

for such a hearing constitutes an abuse of discretion. In other

words, if our probabilistic determination as to whether jurors

would convict Stewart necessarily depends upon the relative

credibility and accuracy of the new witnesses as compared to

those who gave contrary testimony at trial, then the refusal to

hold an evidentiary hearing is an abuse of discretion.

B.

Applying the proper standard of review to Stewart’s

claim, I conclude that he has met the Schlup standard

sufficiently to require an evidentiary hearing.

4

We are to consider a petitioner’s diligence in pursuing his petition as

a factor in our assessment of whether actual innocence has been

convincingly shown. See Perkins, 133 S. Ct. at 1935–36. That

consideration, however, weighs very little here, because: (1) the

exoneration of Richard Lee, Stewart’s co-defendant, through information

provided by Jackson, itself occurred years post-trial, yet that information,

also of importance to Stewart’s Schlup claim, was considered reliable

enough to overturn Lee’s conviction; and (2) Stewart missed the AEDPA

filing deadline by very little, as I explained in Part I.

46 STEWART V. CATE

The Schlup standard is “exacting”; it “‘permits review

only in the “extraordinary” case.’” Lee, 653 F.3d at 938

(quoting House, 547 U.S. at 538). “[T]enable actual-

innocence gateway pleas are rare: ‘[A] petitioner does not

meet the threshold requirement unless he persuades the

district court that, in light of the new evidence, no juror,

acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.’” Perkins, 133 S. Ct. at 1928

(alteration in original) (quoting Schlup, 513 U.S. at 329).

This “demanding” standard is “seldom met.” Id.

Still, Schlup “does not require absolute certainty about the

petitioner’s guilt or innocence.” House, 547 U.S. at 538.

“[W]here post-conviction evidence casts doubt on the

conviction by undercutting the reliability of the proof of guilt,

but not by affirmatively proving innocence, that can be

enough to pass through the Schlup gateway to allow

consideration of otherwise barred claims.” Lee, 653 F.3d at

938, 943 (quoting Sistrunk, 292 F.3d at 673).

In my view, the record reveals this case may well be an

“extraordinary” one of the type contemplated by Schlup and

Perkins, see Perkins, 133 S. Ct. at 193—that is, one “fall[ing]

within the narrow class of cases implicating a fundamental

miscarriage of justice.” Majoy v. Roe, 296 F.3d 770, 776 (9th

Cir. 2002). “This is not a case of conclusive exoneration.

Some aspects of the State’s evidence . . . still support an

inference of guilt. Yet the central . . . proof connecting

[Stewart] to the crime”—here the victims’ eyewitness

identification of their assailants—“has been called into

question, and [Stewart] has put forward substantial evidence

pointing to a different suspect”—namely, Darnell Jackson.

House, 547 U.S. at 553–54. Absent an evidentiary hearing at

which both the credibility of the post-trial witnesses and the

STEWART V. CATE 47

accuracy of their statements are probed, the district court

could not properly determine, and we cannot properly review,

whether, after considering all of the conflicting testimony, it

is “more likely than not [that], in light of the new evidence,

. . . any reasonable juror would have reasonable doubt” as to

Stewart’s guilt. Id. at 538 (emphasis added).

I would remand for the district court to determine, after a

Schlup hearing, whether this is such a “rare case.” Id. at 554.

To explain why requires examining the facts of this case in

some detail.

i.

Stewart was convicted, after a joint trial, of two counts of

attempted murder. He was identified at trial as the driver of

a car from which a passenger, Stewart’s co-defendant,

Richard Lee, shot Mark and Michael Parish (“the Parish

brothers”) in a nearby vehicle, injuring both non-fatally. The

prosecution’s case against both defendants rested chiefly on

the eyewitness testimony of the victims, who insisted that

they had seen clearly the faces of their assailants—both the

shooter, who was physically closer to them (according to

Mark Parish’s trial testimony, approximately eight feet

away), and the driver—and could also identify the car

involved. In closing arguments, the prosecution underscored

the Parish brothers’ certainty of their identification, repeating

the Parish’s words: “I’ll never forget the people who shot me.

I’m not mistaken.” And, to further emphasize the victims’

reliability, the government explained the risks the Parish

brothers faced in testifying, because they would be branded

as “snitches” in their gang milieu.

48 STEWART V. CATE

The prosecution’s case against Stewart also relied heavily

on descriptions of the car from which the victims were shot.

As I detail in Part II.B.ii those descriptions, unlike the

identification of the assailants, were wildly contradictory,

both for each individual witness and among witnesses, and so

worth little as evidence against Stewart.

The prosecution’s additional evidence against Stewart

included: Stewart’s affiliation with the Skyline Pirus, which

was hostile to the Parish brothers’ gang; police testimony that

Stewart was found, hours after the shooting, cleaning his

mother’s BMW; evidence of gun-shot residue detected on

Stewart’s vehicle the night of the shooting; contradictory

accounts, including from Stewart and his mother, regarding

Stewart’s whereabouts on the evening of the shooting; and

testimony of an acquaintance of the Parish brothers, Kevin

Brown, that Stewart had gloated sometime after the shooting,

“I killed your homeboy,” which Brown assumed was a

reference to the shooting of the Parish brothers (even though

there were two of them and they were not killed).

In 2000, four years after the trial, Lee’s conviction was

overturned based on a statement from a third party informant

and friend of Lee’s, Darnell Jackson, that directly

contradicted the victims’ testimony as to the identity of the

shooter. Jackson named Arnold Adkins, recently deceased,

as the shooter of the Parish brothers, while asserting that

Stewart was the driver of the car from which they were shot.

It does not appear from the record that Jackson’s statement

was made under oath. Nonetheless, the government did not

oppose Lee’s habeas petition, conceding that “there appears

to be newly discovered evidence which is sufficiently

credible to cast doubt on the integrity of [Lee’s] convictions.”

STEWART V. CATE 49

Because his conviction was based largely on the very

same victim accounts called into question by the post-trial

evidence exculpating Lee, Stewart filed his own state habeas

petition, asserting his innocence. See In re Weber, 11 Cal. 3d

703, 724 (1974). The basis for his petition was evidence

acquired through his attorney’s investigation of the

information provided in Lee’s habeas case—namely, a letter

sent by the District Attorney to Lee’s counsel describing

Jackson’s statement.5 Stewart contended that Jackson’s

statement gravely impeached the Parish brothers’ account of

the crime, and that other evidence indicated Jackson, not

Stewart, had been the driver. In support of his petition,

Stewart submitted declarations from three acquaintances of

Jackson’s—Roy Vinson, Arnold Johnson, and Tatianna

Daniels—all of whom implicated Jackson in the Parish

brothers’ shooting; a statement from Maurice League, a

friend of both Mark Parish and Stewart; a statement from

Stewart’s co-defendant, Lee; and a statement from Stewart’s

attorney.

The California Superior Court denied post-conviction

relief, holding that “the evidence is not credible because of

inherent inaccuracies and witness bias” and fails to

“completely undermine the prosecution’s case.” In the last

reasoned state court decision on Stewart’s case, the California

Court of Appeal agreed, concluding that “[t]he declarations

at best raise an issue of credibility without providing a

5

Stewart sought access to both Jackson’s statement itself and to the files

related to the state’s investigation of Lee’s habeas petition, but was

provided with neither. Those files were later submitted to the district

court for in camera review, and were subsequently filed under seal, after

the district court determined that they did not “exonerate” Stewart, and

thus were not subject to discovery. I discuss the impact of those files

later.

50 STEWART V. CATE

complete defense.” Because the new evidence does not

“point unerringly to innocence,” the Court of Appeal held, it

does not justify acquittal on the basis of a substantive claim

of actual innocence. Neither state court held an evidentiary

hearing.

The burdens of proof and standards applicable to a

substantive actual innocence claim under California law and

a Schlup claim of procedural actual innocence for federal

habeas purposes are different. See Schlup, 513 U.S. at

313–16; In re Clark, 5 Cal. 4th 750, 766 (1993); In re Weber,

11 Cal. 3d at 724. To demonstrate actual innocence,

California courts require a “complete defense” and evidence

pointing “unerringly to innocence.” In re Weber, 11 Cal. 3d

at 724, 725. In contrast, new evidence undermining the

credibility of trial witnesses carries weight under Schlup, as

credibility assessments are within the scope of the habeas

court’s review, and affirmative proof of innocence is not

necessary. See Schlup, 513 U.S. at 330. Thus, Stewart does

not need to clear the same hurdles to pass through the Schlup

gateway as he did to establish substantive actual innocence

under California law.

ii.

Here is a summary of the new evidence presented on

habeas:

First, Jackson’s ex-girlfriend, Tatianna Daniels, attested

that Jackson confessed to her that he was the driver of the

vehicle from which Arnold Adkins shot the Parish brothers.

Her declaration states that Jackson drove “a red or reddish-

brown 4-door Honda,” which he indicated was the car used in

the shooting.

STEWART V. CATE 51

Second, Vinson’s declaration provides circumstantial

evidence of Jackson’s involvement, although it does not

directly name Jackson as the driver of the car from which the

Parish brothers were shot. Vinson stated that around the time

of the shooting (September 23, 1995), Adkins and Jackson

came to Vinson’s house in a rust-colored Honda, seeking to

rid themselves of a “hot” .357 revolver, the type of weapon

used in the Parish brothers shooting. Around that same time,

Vinson continued, Adkins confessed to shooting two men and

said that the person with him at the time of the shooting was

a “close friend.” Vinson knew that Adkins and Jackson were

close friends and spent a lot of time together.

The circumstantial evidence in Vinson’s declaration

implicating Jackson is corroborated by Haughen, Stewart’s

attorney. Haughen’s declaration states that Vinson informed

him by letter that Jackson was the driver of the vehicle from

which Adkins shot the Parish brothers.

Third, Johnson’s declaration states that Adkins told him

in 1996 that he (Adkins) and Jackson had been fired on while

at a night club sometime in early 1995, and had subsequently

“taken care of” the people responsible. When he asked

Adkins what he meant by “taken care” of them, Johnson

attested, Adkins said “he and Darnell Jackson had shot and

killed them.” Adkins was killed not long after this exchange

with Johnson. Johnson declared that he spoke with Jackson

at Adkins’ funeral, where Jackson told him he did not think

that Adkins’ death had anything to do with the shootings in

which he (Jackson) and Adkins had been involved, because

“everyone believed that two other guys named PeeDu

52 STEWART V. CATE

[Stewart’s street moniker] and Puff [Lee’s street moniker]

had done the shooting and had been locked up for it.”6

Fourth, Maurice League stated that Mark Parish told him

he was unsure who shot him. At trial, a defense witness,

Kenneth Anderson, testified that Mark’s brother, Michael, did

not know if Stewart and his co-defendant Lee were involved,

but was pressured to identify them.

Far from being “duplicative” of Anderson’s testimony, as

the majority asserts, Maj. Op. at 22, League’s declaration is

entirely distinct from—though broadly consistent with—

evidence presented at trial, if for no other reason than that it

pertains to the other brother, Mark. The testimony of two

different individuals to similar but distinct facts is

corroborative, not cumulative, and thus bears on the

perceived credibility of the Parish brothers. Moreover, even

cumulative evidence can “tip the scales” for or against a

defendant. See Parle v. Runnels, 505 F.3d 922, 928 (9th Cir.

2007) (alterations omitted) (quoting Krulewitch v. United

States, 336 U.S. 440, 444–45 (1949); Hawkins v. United

States, 358 U.S. 74, 80 (1958)) (holding prejudicial

erroneously admitted evidence, even if cumulative).

Fifth, Lee, Stewart’s former co-defendant, stated that the

District Attorney contacted Lee with an offer to provide Lee

with information, furnished by Jackson, that would exonerate

Lee of the Parish brothers’ shooting, if Lee promised not to

testify in an upcoming trial at which Jackson was a key

6

According to testimony at trial, police gang files list Stewart’s street

name as “Pee-Du,” “P-Du” or “P-Dew” and Lee’s as “Pufferoo” or “Puff.”

References to “P-Du” and “Pufferoo” appear in the trial transcript as well

as the post-trial record and the parties’ briefs.

STEWART V. CATE 53

witness. Lee’s testimony in that trial would have impeached

Jackson. Lee agreed to this quid pro quo. His attorney filed

a habeas petition on his behalf, using the information

provided by the District Attorney.

Lee’s declaration also states that, in the course of the

District Attorney’s investigation of his habeas petition, he

was interviewed while housed at Salinas Valley State Prison

about the Parish brothers’ incident. Lee attested that he told

the investigator that neither he (Lee) nor Stewart was

involved in the shooting, but that two other individuals were

responsible. Lee’s declaration does not, however, name those

individuals.

The district court gave little weight to Lee’s statement

because he did not disclose the identity of the driver of the

vehicle. But if the driver was Jackson, as Stewart’s post-trial

evidence indicates, Lee’s refusal to name him could be

explained by his desire not to impugn the credibility of the

very individual whose statement secured his own release.

Finally, in support of his Schlup claim, Stewart requested

discovery of all documents on which the District Attorney’s

office based the decision not to oppose Lee’s habeas petition.

After reviewing those materials in camera, the district court

denied the discovery request, concluding that the evidence

would not “exonerate” Stewart, and thus did not advance his

Schlup claim. My own inspection of those materials,

however, leads me to conclude that they would help to meet

the Schlup standard—which is not exoneration—and that

discovery under seal therefore should have been allowed.

The sealed documents are relevant not only to the reliability

of evidence presented at trial but also to the reliability of the

post-trial declarations Stewart presented on habeas. They

54 STEWART V. CATE

further undermine the reliability of the Parish brothers’

testimony about the identity of their assailants and provide

some circumstantial evidence that Jackson, not Stewart, may

have been involved in the crime. The district court’s denial

of Stewart’s discovery motion was therefore an abuse of

discretion. See Cooper v. Brown, 510 F.3d 870, 877 (9th Cir.

2007) (identifying the applicable standard of review).

If credible, the new evidence would thus make it more

likely than not that no reasonable juror would convict Stewart

based on the supplemented record.

The majority’s contrary conclusion rests on two

assumptions. First, the majority assumes that the evidence

exonerating Lee only undermines the Parish brothers’

identification of Stewart “by implication,” if at all, because

“in fact, Jackson’s confession implicated Stewart while

exculpating Lee.” Maj. Op. at 21. But Jackson’s statement

impeaching the Parish brothers’ identification of Lee as the

shooter significantly damages the credibility of the Parish

brothers’ testimony, given that: (1) the shooter was closer to

the brothers than the driver; and (2) the brothers repeatedly

avowed their certainty regarding the shooter’s identity, yet

were disproved as to that identity by Jackson.

This impeachment amplifies the problems that already

marred the brothers’ testimony at trial. That testimony was

riddled with inconsistencies, including contradictory

statements regarding the color and make of the car, the

driver’s hair style, and whether they had ever seen the shooter

or driver before the incident. Given those flaws in their trial

testimony, a demonstration that the brothers’ identification of

one of the assailants—the easier one to identify, given their

location—was decidedly wrong would likely tarnish the

STEWART V. CATE 55

credibility of their identifications of the other assailant so

severely that a reasonable juror would essentially discount

them.

Furthermore, if Jackson were actually the driver, as

Stewart’s post-trial witnesses indicate, then he would have a

clear motive to implicate Stewart in his statements

exonerating his friend, Lee. The majority reaches a contrary

conclusion, presuming that reasonable jurors would believe

Jackson’s statements rather than the contradictory testimony

by Daniels, Vinson, or Johnson, whose declarations all

implicate Jackson to one degree or another in the Parish

brothers’ shooting. But that assumption lacks foundation,

particularly given that Stewart’s post-trial witnesses signed

sworn statements, while the record contains no declaration

from Jackson under oath. Even were it otherwise, we cannot

gauge the relative credibility of post-trial witnesses—i.e.,

compare Jackson’s credibility to Daniels’—when none have

testified.

The majority’s second assumption is that, even if the

Parish brothers’ identification of Stewart were discredited,

“sufficient direct and circumstantial evidence independent of

their testimony placed Stewart and his car at the scene of the

shooting.” Maj. Op. at 25. Under the majority’s view,

reasonable jurors would still find Stewart guilty beyond a

reasonable doubt, based principally on testimony indicating

that his car was involved in the crime. But the testimony

about the car was wildly inconsistent. No reasonable juror

would have convicted Stewart based primarily on the

evidence concerning the car from which the shots were fired.

First, we cannot, as the majority would have it, presume

that the jury concluded “[t]he BMW involved in the shooting

56 STEWART V. CATE

was identical to the BMW that Stewart drove,” or, as the

district court did, that “the jury rejected the argument that a

brown or rust-colored Honda was involved.” It is entirely

possible that the jury convicted Stewart in spite of its

uncertainty regarding the car, based on the victims’

eyewitness identification. Thus, we must evaluate the car

evidence directly, rather than relying on the jury’s assumed

findings regarding the vehicle.

Second, even if the car evidence were much stronger than

it is, a reasonable juror would likely not convict based

primarily on such evidence. People lend cars to one another.

That a particular car was used in a shooting is not proof

beyond a reasonable doubt—without reliable identification of

the driver—of who was driving the vehicle.

Third, and critically, the Parish brothers’ descriptions of

the car involved in the shooting were rife with

inconsistencies. In their pretrial interviews, both brothers

described the car as “rust-colored” or a “brownish-rust color,”

but also—inconsistently—as a light silver-grayish, light blue,

or bluish-gray color.

At trial, Mark Parish testified that the car from which he

and his brother were shot was a “brownish-rust color,” and

admitted that he had also described the car as “rust-colored”

during the preliminary hearing. When Mark was shown two

paint samples from a BMW dealer, he selected the sample

that correctly depicted the color of Stewart’s mother’s car,

which the district court described as “light bronze.” But

when asked what “rust-colored” means to him, Mark said,

“like a copper,” and agreed that the water jug in the

courtroom, which the judge described as “brown or copper

color,” was “rust.” When further pressed on his

STEWART V. CATE 57

understanding of the color “rust,” Mark asked to speak to

“counsel.” One police officer testified at trial that Mark had

said the vehicle was “a dark-colored BMW-type vehicle,”

“possibly maroon.” Another officer testified that Mark had

described the car as “light bluish or grayish.”

His brother, Michael, similarly testified that the car from

which he was shot was “a light brown, tan, rust color,” and

defined rust as “a light brown, a brownish color, like a

tannish.” Then, when shown two paint samples from a BMW

dealer, Michael, like his brother, selected the sample that

correctly depicted the color of Stewart’s mother’s car. He

also admitted, however, that he had described the car to a

police officer as “rust color” immediately after the shooting

and later in the hospital, and acknowledged that he repeated

that same account of the car’s color at the preliminary

hearing. When asked whether he subsequently changed the

description to “bluish-gray” or “silver,” Michael stated that

he did not recall. On cross-examination, Michael answered

affirmatively when asked whether the assailants’ car was “a

rust-colored BMW.”

The brothers’ accounts also varied with regard to whether

the car from which they were shot had two or four doors, and

whether its tires had three-star or five-star rims. The other

eyewitnesses called by the prosecution, Michael Sturdivant

and Michael Cole, described the car still differently.

Sturdivant testified that he saw a gray or white car, which

could have been a BMW or a Nissan Sentra, swerving in and

out of traffic near where the shooting occurred. Cole testified

that after hearing shots from his home, he stepped outside to

glimpse a “shiny, light-colored, possibly gray roof [of a car]

as it disappeared” out of sight.

58 STEWART V. CATE

The evidence Stewart presented on habeas adds to the

uncertainty regarding the car involved in the shooting. One

eyewitness, whose statement was taken several months after

the shooting, described seeing “a beige, dark colored car like

a 79 Honda Accord or Civic driving slow” at the scene of the

Parish brothers’ shooting. Other post-trial declarations

implicating Jackson, rather than Stewart, as the driver and

Arnold Adkins as the shooter describe Jackson’s car as a

reddish-brown four-door Honda and attest to seeing Adkins

and Jackson together in a rust-colored Honda with tinted

windows on the days before the shooting. This evidence

suggests, at the very least, that other gang members may have

had vehicles matching one or another of the descriptions of

the car involved in the Parish brothers’ shooting. Yet, a

police officer involved in investigating the Parish brothers’

shooting testified at trial that no one looked through any gang

files to determine whether anyone other than Stewart was

known to drive a “rust-colored” BMW or similar model car.

The upshot is that no reasonable juror would find the car

evidence alone a sufficient basis to convict Stewart. Aside

from the inherent uncertainty as to who was driving, both the

color and the make of the car used in the shooting are far

from clear when the evidence is considered in its entirety.

iii.

Given the weakness of the car evidence, the other

circumstantial evidence presented at trial does not add enough

support to the verdict to eliminate reasonable doubt as to

guilt. First, there is evidence concerning Stewart’s

whereabouts at the time of the shooting. The majority points

to Stewart’s mother’s testimony placing Stewart and the

BMW he drove in the area of the shooting around the time of

STEWART V. CATE 59

the crime. See Maj. Op. at 21. But her testimony on this point

is, at most, indeterminate. She testified that she thought she

saw the tail end of her own BMW but later determined it was

not hers. A police detective testified that Stewart’s mother

had stated to police that she saw her son in the BMW while

she was picking up her daughter at her mother’s house on the

evening of the shooting, in the vicinity of the crime. At trial,

however, Stewart’s mother denied making such a statement.

As to the gunshot residue found on Stewart’s mother’s

BMW, the prosecution’s expert witnesses testified that such

residue is easily transferred from one surface to another, can

be deposited by sources other than guns, and would not likely

remain adhered to the surface of a moving vehicle.

The evidence that Stewart was “cleaning” his car when

the police located him on the night of the shooting is also

thin. There was no testimony that Stewart was seen washing

the vehicle or removing anything that could have been

incriminating. Nor is there any suggestion of evidence

connected to the crime that could have been “cleaned” away,

such as blood. The officer who encountered Stewart testified

that he did not remember what Stewart was doing that gave

him the impression he was cleaning the vehicle when the

officer approached him in the parking lot of Stewart’s

apartment complex. According to the officer’s testimony,

Stewart appeared to have been picking up papers or bottles

from underneath the seat of the car, but Stewart ceased doing

so at the officer’s request, and no attempt was made to seize

any of the items he may have discarded. Thus, the conclusion

that Stewart was cleaning the car was not only speculative but

did not involve cleaning up anything that was even arguably

evidence of the crime. A reasonable juror would be unlikely

60 STEWART V. CATE

to give weight to the officer’s vague observations as proof of

Stewart’s guilt.

Brown’s testimony at trial that Stewart bragged about his

involvement in the Parish brothers’ shooting provides little

additional support for Stewart’s conviction. A post-trial

witness attested that Stewart never came to the school where

he allegedly spoke with Brown about the shooting. More

importantly, the reported statement was about a killing, not a

non-fatal shooting; it referred to one person, rather than two;

and it did not mention the Parish brothers by name. Neither

of the Parish brothers died. Another member of the Parish

brothers’ gang was murdered on the same night the brothers

were shot. Stewart has not been charged with that murder, so

any evidence concerning it is irrelevant.

III.

Under the Schlup gateway standard, when “the newly

presented evidence . . . call[s] into question the credibility of

the witnesses presented at trial[,] . . . the habeas court may

have to make some credibility assessments.” Schlup,

513 U.S. at 330. As the majority notes, Schlup did not

identify whether and when that assessment requires an

evidentiary hearing. See Maj. Op. at 24 n.12. Further,

although the district court here accepted all the post-trial

evidence as credible—in the sense that the witnesses were

telling the truth as they perceived or remembered it—it went

on to decide on a cold record the accuracy of that testimony,

as compared to the accuracy of the inculpatory testimony at

trial.

In my view, Stewart’s new evidence, if credible,

combined with the exoneration of his co-defendant and the

STEWART V. CATE 61

weakness of the trial evidence, sufficiently indicate that

Jackson was the driver of the vehicle from which the Parish

brothers were shot, so as to entitle Stewart to override the

AEDPA time limit for filing a habeas claim. See Perkins,

133 S. Ct. at 1932. That a declarant’s testimony might be

impeachable because of inconsistencies with other evidence

is reason to hold an evidentiary hearing, not to refrain from

holding one. Unless proffered testimony is far-fetched or

disproven by physical or documentary evidence, a court

cannot reasonably determine the credibility and reliability of

witnesses other than through an in-person hearing, with cross-

examination. In particular, there is no sensible way to resolve

the Schlup issue here without a chance to cross-examine

Jackson on his assertion that Stewart was the driver, in light

of substantial post-trial evidence that Jackson was the driver.

Because we cannot evaluate Stewart’s Schlup claim without

an evidentiary hearing, the district court’s failure to conduct

such a hearing is an abuse of discretion. See supra Part

II.A.iv.

The key question in assessing whether the district court

abused its discretion concerning holding an evidentiary

hearing is whether such a hearing “would produce evidence

more reliable or more probative” with regard to Stewart’s

assertion of actual innocence than the declarations before the

district court district. Griffin v. Johnson, 350 F.3d 956, 966

(9th Cir. 2003). Here, there is no doubt that it would, by

enabling the court to assess the basis of the affiants’

statements; probe the reasons for their delay in coming

forward; and explore other factors bearing on how reasonable

jurors are likely to perceive the overall reliability of various

witnesses’ testimony. The district court’s dismissal of

Stewart’s Schlup claim in absence of such a hearing was an

abuse of discretion.

62 STEWART V. CATE

Conclusion

For the foregoing reasons, I would reverse the district

court’s dismissal on timeliness grounds, or, in the alternative,

remand for an evidentiary hearing on Stewart’s Schlup claim.

Neither of those dispositions would resolve whether Stewart’s

petition presents federal claims cognizable under § 2254, and

I express no opinion as to the merits of his petition.