William Weaver v. Attorney General of the State

MEMORANDUM

William Larry Weaver filed a petition for federal habeas relief under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) after the one-year statute of limitations had run. 28 U.S.C. § 2244 (d)(1). He argues that this court can nonetheless hear his claims because he can establish his actual innocence, which he contends equitably tolls the statute of limitations. The district court held that Weaver did not make a sufficient showing of actual innocence and accordingly dismissed his petition as time-barred. We review de novo the district court’s rulings on Weaver’s showing of actual innocence and on his entitlement to equitable tolling. See House v. Bell, 547 U.S. 518, 539-40 , 126 S.Ct. 2064 , 165 L.Ed.2d 1 (2006) (actual innocence); Malcom v. Payne, 281 F.3d 951, 955-56 (9th Cir.2002) (equitable toll ing). We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

Under Schlup v. Delo, a habeas petitioner can overcome a state procedural bar to relief by making a “gateway” showing of “actual innocence.” 513 U.S. 298, 316 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). It is an open question in this circuit whether a showing of actual innocence can similarly excuse…