Lampert

Concurrence by Judge N.R. SMITH.

OPINION

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

I

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

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

Lee…

concurring in the judgment:

The district court failed to accord the Oregon state courts the deference due them under AEDPA. Under AEDPA, an application for habeas corpus will not be granted unless the adjudication of the claim (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Lockyer v. Andrade, 538 U.S. 63, 75-76 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)) (internal quotation marks omitted). “Rather, that application must be objectively unreasonable.” Id. Applying this standard of review to the decisions of the Oregon state courts, Lee has failed to demonstrate an…