                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

LAMERLE R. JOHNSON,                       No. 07-15221
             Petitioner-Appellant,
               v.                           D.C. No.
                                         CV-02-05309-JSW
MIKE KNOWLES, Warden,
                                            OPINION
            Respondent-Appellee.
                                     
       Appeal from the United States District Court
          for the Northern District of California
        Jeffrey S. White, District Judge, Presiding

                 Argued and Submitted
         May 12, 2008—San Francisco, California

                 Filed September 2, 2008

 Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
       and M. Margaret McKeown, Circuit Judges.

              Opinion by Judge O’Scannlain




                          12037
                    JOHNSON v. KNOWLES               12039


                       COUNSEL

Mark D. Eibert, Half Moon Bay, California, argued the cause
for the petitioner-appellant and filed briefs.

Peggy S. Ruffra, Supervising Deputy Attorney General of the
State of California, San Francisco, California, argued the
12040                JOHNSON v. KNOWLES
cause for the respondent-appellant and filed a brief; Edmund
G. Brown, Attorney General of the State of California, Dane
R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Senior Assistant Attorney General, and Gregory A.
Ott, Deputy Attorney General, San Francisco, California,
were on the brief.


                         OPINION

O’SCANNLAIN, Circuit Judge:

  We must decide whether a claim of miscarriage of justice
excuses an untimely filed habeas petition where the petitioner
does not allege actual innocence.

                               I

                              A

   LaMerle R. Johnson was charged in California state court
with kidnap for ransom, robbery, assault with a deadly
weapon, and use of a firearm. While incarcerated and await-
ing trial, he learned of a murder plot between two fellow
inmates. Johnson informed the authorities of his discovery
and thereafter entered into a plea agreement that he would tes-
tify against the individuals involved in the plot in exchange
for pleading guilty to the charges and serving a sentence of
just over 17-and-a-half years’ imprisonment.

   Pursuant to the plea agreement, Johnson testified against
both of the individuals involved in the murder plot at their
preliminary hearings. Thereafter, one of the plotters went to
trial, and Johnson also testified during these proceedings.
Although the exact chronology is unclear, Johnson alleges
that “law enforcement officers” employed at the jail where he
was being housed during the trial threatened to kill him if he
                      JOHNSON v. KNOWLES                   12041
continued testifying for the state. Johnson asserts the officers
beat him and threatened to place him in a cell with the plot-
ting individuals and to ensure that he was labeled a snitch
when he ultimately went to prison.

  As a result of such threats, Johnson recanted his trial testi-
mony. The prosecutor learned of the threats against Johnson,
however, and he convinced Johnson to explain in open court
what happened to him and why he had changed his testimony.
Johnson also reaffirmed his initial trial testimony, and the trial
court ordered that he be moved to a different jail.

   After these events, the defense attorney representing the
plotter on trial moved to strike Johnson’s trial testimony as
unreliable. The prosecutor objected, explaining that “the sys-
tem failed [Johnson] ultimately, because I’m responsible for
any witness’ safety ultimately. And the fault is mine; not his.”
The trial court denied the motion and allowed the jury to con-
sider Johnson’s testimony. Ultimately, the trial ended with a
hung jury.

   After the trial, the prosecutor moved to rescind Johnson’s
plea agreement because Johnson committed perjury when he
recanted his trial testimony. Following advice of counsel,
Johnson did not oppose the prosecutor’s motion. Thereafter,
Johnson learned that his own attorney had previously repre-
sented the second plotting individual against whom Johnson
had testified only at the preliminary hearing. Johnson was
ultimately tried and convicted and sentenced to life-plus-11-
years’ imprisonment.

                                B

  In November 2002, Johnson filed a pro se federal habeas
petition, primarily challenging the revocation of his plea
agreement and asserting ineffective assistance of counsel. The
State moved to dismiss such petition as untimely under the
Anti-Terrorism Effective Death Penalty Act’s (“AEDPA”)
12042                 JOHNSON v. KNOWLES
one-year statute of limitations, 28 U.S.C. § 2244(d)(1)(A).
The district court granted the motion, finding Johnson’s peti-
tion was filed more than three years after the limitations
period had run. The district court further held that statutory
tolling and equitable tolling did not apply.

   In his first appeal to this court, Johnson conceded that he
failed to comply with AEDPA’s one-year limitations period,
but he argued that the district court erred in concluding that
tolling does not apply. In a memorandum disposition, we
affirmed the district court as to equitable tolling, but we con-
cluded the record was unclear regarding whether statutory
tolling was calculated correctly, and we remanded to the dis-
trict court for further proceedings. Johnson v. Knowles, 116
Fed. Appx. 822, 823-24 (9th Cir. 2004).

   On remand, Johnson filed a supplemental brief in which he
conceded that he was not entitled to statutory tolling. Never-
theless, he argued that his untimeliness should be excused
under the miscarriage of justice exception. Specifically, he
argued that the State’s revocation of the plea agreement after
he had testified at his peril and his own attorney’s conflict of
interest resulted in his being unfairly held in prison longer
than he should have been. The district court disagreed and
again dismissed the petition as untimely.

   Johnson filed a timely notice of appeal and request for cer-
tificate of appealability (“COA”), which the district court
denied. Thereafter, we granted a COA solely on the issue of
whether the miscarriage of justice exception applies here, and
we sua sponte appointed counsel for Johnson.

                               II

  [1] The parties agree that Schlup v. Delo, 513 U.S. 298
(1995), governs the miscarriage of justice exception. In Sch-
lup, a capital habeas case, the petitioner argued a miscarriage
of justice would occur if the court failed to reach the merits
                      JOHNSON v. KNOWLES                   12043
of his otherwise defaulted ineffective assistance of counsel
and Brady claims in light of newly discovered evidence dem-
onstrating his actual innocence. See id. at 307-09. Initially, the
Supreme Court noted the difference between this type of
claim and pure factual innocence claims, like those presented
in Herrera v. Collins, 506 U.S. 390 (1993), where the peti-
tioner alleged innocence in spite of being afforded “entirely
fair and error free” proceedings. Schlup, 513 U.S. at 313-14.
Herrera claims are constitutional claims in and of themselves.
Id. at 315. Schlup claims, on the other hand (sometimes
referred to as procedural innocence claims), are not them-
selves constitutional claims, “but instead a gateway through
which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits.’ ” Id.
(quoting Herrera, 506 U.S. at 404).

   [2] In order to pass through the Schlup gateway, the peti-
tioner must establish that his case “falls within the narrow
class of cases . . . implicating a fundamental miscarriage of
justice.” Id. at 314-15 (internal quotation marks omitted).
Tracing the history of its jurisprudence on this issue, the
Court noted that it has “explicitly tied the miscarriage of jus-
tice exception to the petitioner’s innocence.” Id. at 321
(emphasis added). The Court further explained:

    Without any new evidence of innocence, even the
    existence of a concededly meritorious constitutional
    violation is not in itself sufficient to establish a mis-
    carriage of justice that would allow a habeas court to
    reach the merits of a barred claim. However, if a
    petitioner such as Schlup presents evidence of inno-
    cence 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 nonharmless con-
    stitutional error, the petitioner should be allowed to
    pass through the gateway and argue the merits of his
    underlying claims.
12044                 JOHNSON v. KNOWLES
Id. at 316. Thus, in defining the standard of proof required to
assert the miscarriage of justice exception, the Court
instructed that the “petitioner must show that it is more likely
than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.” Id. at 327.

   [3] More recently, the Supreme Court reiterated that the
Schlup standard is designed to “ensure[ ] that petitioner’s case
is truly extraordinary, while still providing petitioner a mean-
ingful avenue by which to avoid manifest injustice.” House v.
Bell, 547 U.S. 518, 537 (2006) (internal quotation marks
omitted). Again, the Court explained:

    In the usual case the presumed guilt of a prisoner
    convicted in state court counsels against federal
    review of defaulted claims. Yet a petition supported
    by a convincing Schlup gateway showing “raise[s]
    sufficient doubt about [the petitioner’s] guilt to
    undermine confidence in the result of the trial with-
    out the assurance that that trial was untainted by con-
    stitutional error”; hence, “a review of the merits of
    the constitutional claims” is justified.

Id. (quoting Schlup, 513 U.S. at 317).

   [4] Following such precedent, we also have limited the
application of the miscarriage of justice exception to cases
where the petitioner alleges innocence. Cook v. Schriro, 516
F.3d 802, 829 (9th Cir. 2008) (holding that “[t]o qualify for
the ‘fundamental miscarriage of justice’ exception to the pro-
cedural default rule, . . . [the petitioner] must show that a con-
stitutional violation has ‘probably resulted’ in the conviction
when he was ‘actually innocent’ of the offense) (internal cita-
tions omitted, emphasis added); Smith v. Baldwin, 510 F.3d
1127, 1139 (9th Cir. 2007) (en banc) (holding that to establish
a miscarriage of justice exception, the petitioner must show
that his case “fall[s] within the narrow class of cases . . .
[involving] extraordinary instances when a violation probably
                          JOHNSON v. KNOWLES                         12045
has caused the conviction of one innocent of the crime”)
(internal quotation marks omitted, emphasis added).

   [5] Here, Johnson expressly concedes his guilt. In his sup-
plemental brief to the district court, he stated: “San Mateo
County did not cause me to kidnap Ellis Foots, I did that and
never can undo it . . . . I know that I deserved to come to
prison for my actions, and I accept that.” (emphasis added).
However, citing Sawyer v. Whitley, 505 U.S. 333 (1992), and
Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002), Johnson argues
that the miscarriage of justice exception is not limited to cases
where the petitioner’s guilt or innocence is called into ques-
tion, but applies in any case where the court lacks confidence
in the proceedings.

   In Sawyer, concurring Justices Stevens, Blackmun, and
O’Connor did indicate that “[w]hile the conviction of an inno-
cent person may be the archetypal case of a manifest miscar-
riage of justice, it is not the only case.” 505 U.S. at 361. But
as just discussed, the majority of the Court has not adopted
this broader view, nor have any of our sister circuits.1
  1
    See Moore v. Quarterman, ___ F.3d ___, 2008 WL 2640094, *6 (5th
Cir. 2008) (recognizing the miscarriage of justice exception is “narrow”
and only applies where the petitioner shows “a constitutional violation has
probably resulted in the conviction of one who is actually innocent” (inter-
nal quotation marks and citation omitted)); Goldblum v. Klem, 510 F.3d
204, 216 (3d Cir. 2007) (same); Cagle v. Norris, 474 F.3d 1090, 1099 (8th
Cir. 2007) (“ ‘Without any new evidence of innocence, even the existence
of a concededly meritorious constitutional violation is not in itself suffi-
cient to establish a miscarriage of justice that would allow a habeas court
to reach the merits of a barred claim.’ ” (quoting Schlup, 513 U.S. at
316)); Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006) (“The
miscarriage-of-justice-exception applies when the petitioner can demon-
strate that he is actually innocent.”); Doe v. Menefee, 391 F.3d 147, 161
(2d Cir. 2004) (“[A] petitioner may use his claim of actual innocence as
a ‘gateway,’ or means of excusing his procedural default . . . .” ) (citing
Schlup, 513 U.S. at 315-17)); Horton v. Allen, 370 F.3d 75, 81 n.3 (1st
Cir. 2004) (defining “miscarriage of justice” as “ ‘a constitutional viola-
tion that has probably resulted in the conviction of one who is actually
12046                    JOHNSON v. KNOWLES
   Additionally, Johnson misapplies Majoy. There, we stated
that “[a] petitioner need not show that he is actually innocent
of the crime he was convicted of committing; instead, he must
show that a court cannot have confidence in the outcome of
the trial.” 296 F.3d at 776 (internal quotation marks omitted).
This passage does not stand alone, however. Rather, it comes
from our explanation of the Schlup gateway standard of proof.
The full passage reads:

     Under Schlup, a petitioner’s otherwise-barred claims
     [may be] considered on the merits . . . if his claim
     of actual innocence is sufficient to bring him within
     the narrow class of cases . . . implicating a funda-
     mental miscarriage of justice. In order to pass
     through Schlup’s gateway, and have an otherwise
     barred constitutional claim heard on the merits, a
     petitioner must show that, in light of all the evi-
     dence, including evidence not introduced at trial, it
     is more likely than not that no reasonable juror
     would have found petitioner guilty beyond a reason-
     able doubt. A petitioner need not show that he is “ac-
     tually innocent” of the crime he was convicted of
     committing; instead, he must show that a court can-
     not have confidence in the outcome of the trial.

Id. (internal quotation marks, citations, footnote omitted;
emphasis added).

  [6] Thus, in light of Supreme Court precedent, as well as
our own, we conclude that the miscarriage of justice excep-

innocent’ ”) (quoting Schlup, 513 U.S. at 327)); Williams v. Bagley 380
F.3d 932, 973 (6th Cir. 2004) (same); Reid v. True, 349 F.3d 788, 806 (4th
Cir. 2003) (same); Spears v. Mullin, 343 F.3d 1215, 1255 n.33 (10th Cir.
2003) (noting that a showing that the petitioner is “actually innocent” is
required under Schlup); Zeigler v. Crosby, 345 F.3d 1300, 1307-08 (11th
Cir. 2003) (per curium) (“To establish a fundamental miscarriage of jus-
tice, a petitioner must show a colorable claim for actual innocence.”).
                         JOHNSON v. KNOWLES                         12047
tion is limited to those extraordinary cases where the peti-
tioner asserts his innocence and establishes that the court
cannot have confidence in the contrary finding of guilt. Sch-
lup, 513 U.S. at 317. A petitioner who asserts only procedural
violations without claiming actual innocence fails to meet this
standard.2 Therefore, here Johnson’s concession of guilt is
fatal to his untimely habeas petition.

   AFFIRMED.




   2
     We do not decide whether the miscarriage of justice exception applies
where a defendant claims to be innocent of the conduct upon which an
enhanced sentence is based. See, e.g., Spence v. Superintendent, 219 F.3d
162, 172 (2d Cir. 2000) (“Where a petitioner shows by clear and convinc-
ing proof that he is actually innocent of the conduct on which his sentence
is based, the incarceration is fundamentally unjust and the miscarriage of
justice exception to the procedural default bar applies.”); see also Calde-
ron v. Thompson, 523 U.S. 538, 559-60 (1998) (holding miscarriage of
justice exception applies where petitioner shows “ ‘by clear and convinc-
ing evidence’ that no reasonable juror would have found him eligible for
the death penalty”). Such issue is not raised in this case.
