Lampert

Janet A. Klapstein, Senior Assistant Attorney General of Oregon, Salem, OR, for the respondent-appellant.

Stephen R. Sady, Chief Deputy Federal Public Defender of Oregon, Portland, OR, for the petitioner-appellee.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, HARRY PREGERSON, SIDNEY R. THOMAS, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge THOMAS; Concurrence by Chief Judge KOZINSKI.

THOMAS, Circuit Judge:

This appeal presents the question of whether a credible showing of "actual innocence" under Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), excuses the statute of limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 et seq. We conclude that it does, but that the petitioner failed to present sufficient evidence of actual innocence to permit review of his constitutional claims on the merits. We reverse the judgment of the district court.

An Oregon jury convicted Richard Lee of two counts of first degree sex abuse and two counts of first degree…

Opinion by Judge THOMAS; Concurrence by Chief Judge KOZINSKI.

OPINION

This appeal presents the question of whether a credible showing of “actual innocence” under Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), excuses the statute of limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 28 U.S.C. § 2241 et seq. We conclude that it does, but that the petitioner failed to present sufficient evidence of actual innocence to permit review of his constitutional claims on the merits. We reverse the judgment of the district court.

I

An Oregon jury convicted Richard Lee of two counts of first degree sex abuse and two counts of first degree sodomy, for which he received a sentence of 170 months in prison. Although Lee’s trial attorney provided appellate counsel with a list of potential trial errors, appellate counsel filed a “Balfour brief’ with the Oregon Court of Appeals, indicating there were no meritorious issues for appeal. 1 The Oregon Court of Appeals affirmed his conviction without opinion. Lee did not file a petition for review to the Oregon Supreme Court.

Lee petitioned for state postconviction relief,…

concurring in the result:

Once again, we’re asked to consider whether a petitioner may file an untimely writ of habeas corpus by making a showing of actual innocence. Some day we may have to take up this issue, but not today. By no stretch of the imagination does Lee present a colorable claim of actual innocence. We therefore have no occasion to consider whether his late filing can be equitably tolled under AEDPA.

Lee presents an expert opinion, other evidence about Cheryll and Larry Lee and a police report to rehash claims made at trial. But to pass through the Schlup gateway, a petitioner must show reliable evidence of his innocence that was not, and could not have been, presented at trial. Schlup v. Delo, 513 U.S. 298, 324-28 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). This is a high threshold that is rarely met. Id. Lee comes nowhere close.

Schlup pointed out three types of evidence that would pass the threshold of reliability: exculpatory scientific evidence, trustworthy eyewitness accounts and critical physical evidence. Id. By enumerating *946 the categories of evidence that could prove innocence, the Supreme Court made clear that less reliable kinds of evidence cannot…