                     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.
                                                      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

   Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
      Judges, and Jennifer G. Zipps, District Judge.*

                     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 affirmed the district court’s denial of an
untimely 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.

    Reviewing for abuse of discretion, 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
to be the sort of extraordinary one that requires reaching the
merits of petitioner’s otherwise barred federal habeas claims.
Judge Berzon would also review the Schlup claim de novo
instead of for an abuse of discretion.

  **
     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

                         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.


                         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
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
4                       STEWART V. CATE

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
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

   1
     Lee was also convicted on one count of assault on a peace officer
stemming from the circumstances of his arrest.
                          STEWART V. CATE                                 5

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
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
    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.
6                          STEWART V. CATE

(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 (“§ 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
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

 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).
                     STEWART V. CATE                         7

§ 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
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
8                        STEWART V. CATE

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).

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




 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.
                           STEWART V. CATE                             9

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
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,

 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.
10                        STEWART V. CATE

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
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


 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.
                         STEWART V. CATE                              11

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
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




  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).
12                       STEWART V. CATE

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
concluded that Stewart had failed to demonstrate good cause
for the 100-day delay.




 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 29. 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.
                          STEWART V. CATE                              13

    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”
language in 1993.9 Spears and Moss discuss the state’s


 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
14                       STEWART V. CATE

“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
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


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.
                     STEWART V. CATE                        15

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.

    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.
16                    STEWART V. CATE

     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
(May 28, 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 (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
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
                           STEWART V. CATE                                17

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.

    We review the district court’s decision for abuse of
discretion.10 In Schlup, the Supreme Court assumed that to be
the correct standard of review. See Schlup, 513 U.S. at
333–34 (O’Connor, J., concurring) (noting 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 acknowledging that the Court did not directly
address the issue). We subsequently relied on Justice
O’Connor’s concurrence as setting the correct standard of
review. See Roe v. Anderson, 134 F.3d 1400, 1402 n.1 (9th
Cir. 1998) (abuse of discretion review “has been subsequently
adopted in numerous other contexts” including in Schlup,
citing Justice O’Connor’s concurrence). We have directly
applied this standard when reviewing a district court’s


 10
    We disagree with the dissent’s argument that a de novo review of the
evidence before the district court is appropriate. In addition, we note that
Stewart himself invoked the abuse of discretion standard of review,
arguing that the district court erred in its review of the facts under Schlup.
18                       STEWART V. CATE

disposition of Schlup claims. See Paradis v. Arave, 130 F.3d
385, 396–99 (9th Cir. 1997) (holding that “[a]s the district
court applied an erroneous standard for the showing of actual
innocence here, it abused its discretion”). The Supreme
Court’s subsequent decisions on actual innocence claims have
been consistent with this standard of review. See, e.g., House,
547 U.S. at 539–40 (noting that deference is given to a trial
court’s assessment of evidence presented to it in the first
instance); McQuiggin, 133 S. Ct. at 1936 (noting that the
district court’s assessment of the actual innocence claim
should be “dispositive, absent cause”). Absent any clear
guidance from either our en banc court or the Supreme Court
that review of the Schlup inquiry is, in fact, de novo, we are
bound to maintain the status quo and apply an abuse of
discretion standard.11

     Twenty pages of the district court’s decision are devoted
to an exhaustive review and analysis of the trial evidence as
well as the additional evidence proffered by Stewart. With
respect to the Parish brothers’ identification of Stewart, the
district court described Mark Parish’s testimony as follows:
Mark 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


 11
    Applying a de novo standard of review would effectively require this
Court to review the entire record—and any additional evidence presented
by the petitioner—in any case in which the petitioner articulates a Schlup
gateway claim in his petition. Not only would this potentially place a
heavy burden on our circuit, but more importantly, adopting such a rule
would not conform with our standard practice of reviewing district courts’
factual determinations in habeas cases for clear error. The cases cited by
the dissent in support of that position (particularly the en banc decisions
in Lee, Smith and Sistrunk) neither discuss the applicable standard nor
apply a standard approximating de novo review.
                     STEWART V. CATE                        19

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. The district court also
summarized Michael Parish’s testimony, stating that Michael
identified Stewart as the driver and that Michael identified
Stewart in a photo lineup. With respect to the vehicle
involved in the shooting, the district court noted that 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. Michael’s testimony 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. The district court noted that 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.

    The district court considered the testimony of the Parish
brothers and other witnesses in conjunction with the
additional evidence proffered by Stewart and analyzed
evidence that supported Stewart’s defense. The district court
accurately summarized the declarations of League and
Daniels. The district court noted that 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. The district
20                   STEWART V. CATE

court acknowledged that some evidence suggested that the
Parish brothers’ identification of Stewart and Lee may have
been influenced by “word on the street.” The district court
also gave consideration to Stewart’s alibi and the possible
evidentiary confusion related to another gang-related shooting
that occurred hours after the Parish brothers were shot.
Additional declarations provided by Stewart were considered
by the district court; those declarations contradicted evidence
introduced at trial that Stewart had bragged about the
shooting and suggested that Jackson could have been the
driver.

    Ultimately, the district court concluded that Stewart had
failed to pass through the Schlup gateway for a number of
related reasons. The district court found that 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. The district court also noted that
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 only called 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 shooting,
                          STEWART V. CATE                               21

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.12 Other declarations
offered by Stewart were similarly equivocal, as they did not
specifically exculpate Stewart.

    The district court’s assessment of the evidence was
appropriately cumulative. See House, 547 U.S. at 538; see
also Lee, 653 F.3d at 945. The district court fairly assessed
the trial evidence, noting various deficiencies and conflicts
therein. The district court also thoroughly discussed the
additional evidence proffered by Stewart and its potential
exculpatory effect. The district court considered the League
and Daniels declarations in light of the other evidence before
the court. 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

   12
       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.
22                        STEWART V. CATE

police. Daniels’s statement that Jackson had confessed to
driving a reddish-brown Honda from which 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. Ultimately, the
district court concluded that “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.’” Although the district court
specifically rejected the probative value of the League and
Daniels declarations, that does not prove that the district court
failed to “assess how reasonable jurors would react to the
overall, newly supplemented record.” House, 513 U.S. at 538.
The district court addressed discrete elements of evidence
because there is no way to address all the evidentiary matters
except one at a time. The district court recognized the
applicable law and synthesized the trial evidence with the
additional proffered evidence. Its cumulative analysis
complied with the Schlup standard.13

 13
    Stewart argues that the district court’s analysis was inconsistent with
House, but 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
                         STEWART V. CATE                              23

    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
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




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

hearing and if so, under what circumstances.14 Generally, in
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.15 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

   14
      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
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.
 15
    We disagree with the dissent’s opinion that the district court abuses its
discretion when its failure to hold an evidentiary hearing prevents the
appellate court from engaging in an appropriate de novo review of the
record, Dis. Op. at 39, because we disagree Stewart’s Schlup claim should
be reviewed de novo.
                      STEWART V. CATE                         25

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’
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
26                      STEWART V. CATE

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
which Adkins shot the Parish brothers.16 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.



  16
     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.
                       STEWART V. CATE                            27

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
to state a federal claim. The judgment of the district court is
therefore AFFIRMED.17



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), and McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).
Stewart has presented post-conviction evidence that, if
credible, demonstrates this case to be the sort of extraordinary
one that, under Schlup and McQuiggin, requires reaching the

      17
       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.
28                    STEWART V. CATE

merits of his otherwise barred federal habeas claims. In
holding otherwise, the majority applies the wrong standard of
review and seriously misapprehends the record.

                               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.

     Chavis permitted interval tolling under California’s
system of collateral review on the assumption “that
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
                         STEWART V. CATE                               29

(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).1

    Whether California courts would consider a given filing
delay reasonable is inherently a fact- and circumstance-
specific question; the shortest period deemed “unreasonable”
under California law in one case does not necessarily mark


 1
   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.
30                    STEWART V. CATE

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.

     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. 4th 18, 30–31 (2008) (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. 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
                     STEWART V. CATE                        31

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, and
therefore contain no discussion of the operative timeliness
standard. See Maj. Op. at 13–14 & n.9. But the majority
overlooks the content of the California courts’ holdings:
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.
32                   STEWART V. CATE

    The majority’s dismissal of In re Bower as insufficiently
reasoned is equally unconvincing. See Maj. Op. at 14.
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, a 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
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 15.
                      STEWART V. CATE                        33

     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.” 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 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 15, 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
34                    STEWART V. CATE

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. 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 5066813, at
*9–10 (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.
                          STEWART V. CATE                              35

                                    A.

    The majority reviews the district court’s decision for
abuse of discretion. That is not the correct standard of
review.

    As the majority acknowledges, Maj. Op. at 8, 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 the majority’s contrary conclusion.2

                                    i.

    Precedent confirms the propriety of de novo review. 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

   2
      Nor has Stewart invoked the abuse-of-discretion standard, as the
majority suggests. Maj. Op. at 18 n.11. To the contrary, Stewart observes
that this Court “reviews de novo the district court’s dismissal of a § 2254
petition on timeliness grounds.” The majority contends that Stewart
departs from this standard of review by arguing that “the district court
misapplied Schlup.” Pointing out the district court’s error does not
amount to implicit invocation of a standard of review that Stewart does not
so much as name.
36                   STEWART V. CATE

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
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 5066813, 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. Munchinski
v. Wilson, 694 F.3d 308, 337 (3d Cir. 2012); 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
                     STEWART V. CATE                       37

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, and had no occasion to
consider whether a more stringent standard was appropriate,
as the district court’s decision flunked even the most
deferential review.

    The majority’s remaining appeals to precedent fare no
better. Justice O’Connor’s concurrence in Schlup by no
means “assumed that . . . the correct standard of review” was
for abuse of discretion, as the majority insists. Maj. Op. at
17. Rather, as Justice O’Connor explained, Schlup 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 based “on an erroneous view of the law,” and
thus failed even under deferential review. Id. at 333.

    Nor did this Court subsequently rely on that concurrence
“as setting the correct standard of review.” Maj. Op. at 17.
To the contrary, Roe v. Anderson—which affirmed the grant
of preliminary injunctive relief in a case under 42 U.S.C.
§ 1983—referred to O’Connor’s concurrence in a lengthy
string citation supporting the proposition that the abuse-of-
discretion standard, where it applies, does not entail de novo
review of legal conclusions. 134 F.3d 1400, 1402 n.1 (9th
Cir. 1998). Roe had no reason to consider whether abuse-of-
discretion review applies to Schlup claims in habeas and did
not do so.
38                    STEWART V. CATE

     Nor do the two subsequent Supreme Court cases cited by
the majority support the majority’s conclusion. House v. Bell
observed that “[d]eference is given to a trial court’s
assessment of evidence presented to it in the first instance.”
547 U.S. 518, 539 (2006). 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). Here—unlike in House—there has been no
evidentiary hearing, and the trial court purported to accept all
the 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 supports, rather than
detracts from, the conclusion 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, and
as to which de novo review is therefore appropriate.

    The other Supreme Court case cited, McQuiggin v.
Perkins, 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” thus could simply mean “unless incorrect”; it
certainly does not mean “abuse of discretion.”

    In short, my colleagues read the relevant precedents
incorrectly. The applicable case law, far from compelling
                      STEWART V. CATE                        39

abuse-of-discretion review, supports de novo consideration of
the Schlup claim on the present record.

                              ii.

    The majority’s innovation is as unwise as it is
unprecedented. 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
40                   STEWART V. CATE

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
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
                      STEWART V. CATE                        41

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.”
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 should
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
42                   STEWART V. CATE

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.

    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
                          STEWART V. CATE                               43

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
been faced with the new evidence as well as that presented at
trial.3

    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.

    I apply these standards of review, not the more deferential
approach taken by the majority, as I analyze whether Stewart
has met the Schlup standard.


   3
     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.
44                    STEWART V. CATE

                               B.

    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 1931, in that it “fall[s]
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.
                      STEWART V. CATE                         45

House, 547 U.S. at 553–54. Absent an evidentiary hearing at
which both the credibility of the post-trial witnesses and the
accuracy of their statements are probed, the district court
could not properly determine, and we cannot properly review,
whether, after hearing 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 understand 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.
46                    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                                47

    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.4 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


 4
   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.
48                   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                      49

    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’s funeral, where Jackson told him he did not think
that Adkins’s 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
50                        STEWART V. CATE

[Stewart’s street moniker] and Puff [Lee’s street moniker]
had done the shooting and had been locked up for it.”5

    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 21, 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


  5
    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                         51

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
52                   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
exonerating Lee.” Maj. Op. at 20. 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                       53

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’s—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
54                    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 are 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.
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
understanding of the color “rust,” Mark asked to speak to
                     STEWART V. CATE                        55

“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.
56                   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                        57

the crime. Maj. Op. at 20. 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 is unlikely to give
58                    STEWART V. CATE

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; 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. Maj. Op. at 23–24. 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
weakness of the trial evidence, sufficiently indicate that
                      STEWART V. CATE                        59

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.
60                    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.
