                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SCOTT DOUGLAS JONES,                      No. 13-36202
             Petitioner-Appellee,
                                             D.C. No.
                 v.                      3:10 cv-1474 JO

JERI TAYLOR, Superintendent, Two
Rivers Correctional Institution,            OPINION
              Respondent-Appellant.


     Appeal from the United States District Court
               for the District of Oregon
    Robert E. Jones, Senior District Judge, Presiding

               Argued and Submitted
           May 12, 2014—Portland, Oregon

                 Filed August 19, 2014

    Before: Arthur L. Alarcón, A. Wallace Tashima,
          and Sandra S. Ikuta, Circuit Judges.

              Opinion by Judge Tashima
2                        JONES V. TAYLOR

                           SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s judgment granting
a habeas corpus petition based on a freestanding claim of
actual innocence in a case in which Scott Jones was convicted
of unlawful sexual penetration for the sexual abuse of his
sister, S.J.

    Jones’ conviction was based primarily on S.J.’s testimony
that Jones inserted his finger inside her vagina on multiple
occasions, as well as testimony by S.J.’s and Jones’ father,
Ken Jones, and sister, Jennifer Pond, that Jones admitted to
penetrating S.J.

   Jones brought his freestanding claim of factual innocence
based on the recantations of all three witnesses.

    The panel chose to review de novo the district court’s
conclusion that Jones is actually innocent, based on the
panel’s holistic assessment of the evidence adduced at the
hearings before the district court and at trial and the likely
effect all this evidence would have on reasonable jurors in
order to clarify how district courts should evaluate actual
innocence claims.

   The panel did not resolve whether a freestanding actual
innocence claim is cognizable in a federal habeas corpus
proceeding in the non-capital context because, even assuming

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      JONES V. TAYLOR                         3

that such a claim is cognizable, the panel concluded that
Jones has not made a sufficient showing to merit relief.

    The panel explained that as a general matter, recantation
testimony is properly viewed with great suspicion. The panel
did not rely on the district court’s findings that S.J. and Ken
Jones were credible because the panel was uncertain about
the basis for some of the district court’s conclusions and
unpersuaded that every reasonable juror would credit the
recantations as the district court did. The panel explained that
even if it accepts that the three witnesses testified truthfully
based on their memory at the time of the evidentiary hearing,
their recantations are insufficient to demonstrate that Jones is
factually innocent, where neither Ken Jones nor Jennifer
Pond witnessed the abuse, and where the panel could not say
that every juror would credit S.J.’s recantation testimony over
her trial testimony and the descriptions of the abuse she gave
in her 2000 and 2002 interviews. The panel explained that
evidence that merely undercuts trial testimony or casts doubt
on the petitioner’s guilt, but does not affirmatively prove
innocence, is insufficient to merit relief on a freestanding
claim of actual innocence. The panel concluded that Jones
has not made the extraordinarily high and truly persuasive
showing required for habeas relief on a freestanding claim of
actual innocence.
4                    JONES V. TAYLOR

                        COUNSEL

Ellen F. Rosenblum, Attorney General of Oregon, Anna M.
Joyce, Solicitor General, Paul L. Smith (argued), Attorney-in-
Charge, Criminal and Collateral Remedies Appeals, Oregon
Department of Justice, Salem, Oregon, for Respondent-
Appellant.

Ellen C. Pitcher (argued), Assistant Federal Public Defender,
Portland, Oregon, for Petitioner-Appellee.


                         OPINION

TASHIMA, Circuit Judge:

    In 2003, Petitioner Scott Jones was convicted of unlawful
sexual penetration for the sexual abuse of his sister, S.J.
Jones’ conviction was based primarily on S.J.’s testimony
that Jones inserted his finger inside her vagina on multiple
occasions, as well as testimony by S.J.’s and Jones’ father,
Ken Jones, and sister, Jennifer Pond, that Jones admitted to
penetrating S.J.

    All three witnesses now recant their testimonies. Based
on these recantations, Jones brought a federal habeas petition
seeking relief based on a freestanding claim of actual
innocence. The district court assumed that a freestanding
actual innocence claim existed in this context and granted
                              JONES V. TAYLOR                             5

relief. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253 and, for the reasons discussed below, we reverse.1

                                       I.

                                      A.

    Jones was convicted of three counts of unlawful sexual
penetration in the first degree pursuant to Oregon Revised
Statute § 163.411 for the sexual abuse of his sister, S.J.2 He
was sentenced to three concurrent 100-month terms of
imprisonment, plus a consecutive 75-month term for a related
offense. His conviction and sentence were affirmed on direct
appeal.



  1
    Because Jones did not raise his actual innocence claim in state court,
it was not “adjudicated on the merits in State Court proceedings,” and,
therefore, the limitations imposed on our habeas review by 28 U.S.C.
§ 2254(d) do not apply. While a habeas petitioner in federal court must
ordinarily exhaust his claims in state court, see 28 U.S.C. § 2254(b)(1), we
review Jones’ unexhausted actual innocence claim pursuant to 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”).
 2
      The statute provides:

           [A] person commits the crime of unlawful sexual
           penetration in the first degree if the person penetrates
           the vagina, anus or penis of another with any object
           other than the penis or mouth of the actor and . . . [t]he
           victim is under 12 years of age . . . .

OR. REV. STAT. § 163.411(1) (2014).
6                        JONES V. TAYLOR

     At Jones’ 2003 trial, S.J. testified that Jones went inside
her vagina with his finger on multiple occasions in late 1998
or early 1999, when she was approximately nine years old
and Jones was approximately seventeen. She testified that
Jones “wiggled” his finger and moved it “back and forth”
inside her vagina, and that it hurt when he did this. Her
testimony at trial was consistent with her description of the
abuse in two videotaped interviews that were played for the
jury, one with a mental health counselor in 2000 and another
with a police detective in 2002. In these interviews, as in her
trial testimony, S.J. stated that Jones touched inside her
vagina with his finger, though her memory seemed to have
faded somewhat by the 2002 interview, and she was less sure
in that interview of what had happened than she had been in
the 2000 interview.

     S.J. and Jones’ father, Ken Jones, and their sister, Jennifer
Pond, also testified at trial. Ken Jones testified that Jones
admitted that he penetrated S.J., recounting that Jones said: “I
admit, I penetrated her.” Jennifer Pond similarly testified that
Jones admitted to penetrating S.J., stating that he said “I
admit the full thing,” in the context of a conversation about
allegations that he abused S.J. Jennifer Pond also testified at
trial that in late 1998 or early 1999, S.J. came to her
complaining of vaginal pain and that she noticed that S.J.’s
vaginal area looked “a little red.” The late 1998 or early 1999
time period coincided with the time period in which the
sexual abuse occurred.3




    3
    The 1998 or 1999 time period is based on S.J.’s testimony that the
sexual abuse occurred while the family was living in a house in Toledo,
into which the family moved in late 1998.
                      JONES V. TAYLOR                         7

     All three witnesses have since recanted. S.J. came
forward in 2012 saying that her description of the abuse at
trial and in the 2000 and 2002 interviews was inaccurate. S.J.
explains that her previous testimony that Jones put his finger
inside her vagina was inaccurate and that he did not, in fact,
put his finger inside her vagina. She says she was mistaken
in her trial testimony and in the 2000 and 2002 interviews
because she did not at the time understand that her genitals
had an inside area capable of penetration. She explains that
she was raised in a very conservative household, where she
never received sex education, and therefore did not
understand her sexual anatomy. She maintains that now that
she better understands her sexual anatomy, she knows that
Jones did not penetrate her vagina with his finger.

    Ken Jones and Jennifer Pond also recanted their testimony
at around the same time S.J. came forward. Ken Jones now
claims that Jones did not say he penetrated her, but rather that
he said “I admit the whole thing.” Ken Jones explains that he
previously assumed Jones was referring to sexual penetration
of S.J., but upon further reflection, now realizes that Jones
was actually referring to a burglary when he said “I admit the
whole thing.” Jennifer Pond now similarly claims that the
admission was made in the context of a conversation about a
burglary, not sexual abuse. She also now claims that it was
sometime between 1993 and 1997 when S.J. complained to
her of vaginal pain and she observed redness in S.J.’s vaginal
area, rather than 1998 or 1999. She explains the change in
the timeline only by saying, “I guess that’s how I
remembered it at the time.”

    Based on this new evidence, Jones claims that he is
factually innocent of the crime of sexual penetration and
seeks release on that ground. Jones does not contend that he
8                        JONES V. TAYLOR

did not sexually abuse S.J. S.J. testified at the evidentiary
hearing that Jones touched her genitals, and Jones admitted to
doing so in a separate hearing before the district court. Jones’
only contention is that he is innocent of the crime of unlawful
sexual penetration because, although he touched S.J.’s
genitals with his hand, he did not penetrate her vagina when
he touched her genitals.

                                   B.

    On December 2, 2010, Jones filed a pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254 in federal
district court. On July 5, 2012, Jones, through counsel, filed
an amended petition. On August 9, 2013, Jones filed a
motion for release pending resolution of the habeas
proceedings, and on August 28, 2013, the district court held
a hearing on that motion.4 Jones and Ken Jones testified at
the August 28, 2013, hearing. During his testimony in that
proceeding, Jones, who did not testify at trial, stated that he
never penetrated S.J.’s vagina. It was also at the August 28,
2013, hearing that Ken Jones recanted his trial testimony,
explaining that his statement that Jones admitted to sexually
penetrating S.J. was incorrect. The district court continued
the hearing, and heard additional testimony on October 23
and 24, 2013. During those hearings, S.J. and Jennifer Pond
testified. S.J. testified to the facts described above, stating
that Jones had never penetrated her, and Jennifer Pond
recanted her trial testimony, as described above.




 4
  This hearing on the motion for release pending resolution of the habeas
proceeding turned into an unscheduled and non-noticed three-day
evidentiary hearing on the merits of the actual innocence claim.
                      JONES V. TAYLOR                          9

    On December 19, 2013, the district court issued an
opinion and order granting Jones’ habeas petition. Jones v.
Franke, 2013 WL 6780605 (D.Or. 2013). It denied relief on
four of Jones’ claims, which are not relevant to this appeal,
but granted relief on the freestanding actual innocence claim.
Id. at *8–*10. The district court found S.J.’s recantation
credible in full, id. at *10, and credited the portion of Ken
Jones’ recantation in which he stated that Jones had never
admitted to penetrating S.J., id. at *9. The district court
further concluded that Jennifer Pond’s recantation was
irrelevant to Jones’ actual innocence claim. Id. at *9–*10.
Based on the recantations by S.J. and Ken Jones, the district
court found that, assuming a freestanding actual innocence
claim was cognizable, Jones had made a sufficient showing
of actual innocence on the unlawful sexual penetration charge
to merit habeas relief. It therefore ordered the State to release
Jones from custody and discharge him from all adverse
consequences related to the unlawful penetration convictions.
Id. at *10–*11. The State timely appealed.

                               II.

    In general, we review de novo the district court’s decision
to grant or deny a habeas petition, while factual findings and
credibility determinations underlying the decision are
reviewed for clear error. Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004). However, as we recently recognized in
Stewart v. Cate, No. 10-55985, 2014 WL 1707033, at *7 (9th
Cir. May 1, 2014) (as amended), the standard of review
applicable to claims of actual innocence “is not entirely
settled in this circuit.”

   Jones contends that the district court’s conclusion that he
is actually innocent of the crime of unlawful sexual
10                         JONES V. TAYLOR

penetration is a factual finding that we should review for clear
error. Jones, however, overstates the effect of the district
court’s decision: While we review for clear error the district
court’s credibility findings as to the witnesses who testified
at the evidentiary hearing, the district court’s conclusion that
Jones is actually innocent of the crime of unlawful sexual
penetration is a question we review either de novo or for
abuse of discretion. See id. (contrasting the abuse of
discretion review applied in Schlup v. Delo, 513 U.S. 298,
333–34 (1995) (O’Connor, J., concurring), and Paradis v.
Arave, 130 F.3d 385, 396–99 (9th Cir. 1997), with the de
novo review applied in cases like House v. Bell, 547 U.S. 518,
539–40 (2006), and Larsen v. Soto, 742 F.3d 1083, 1092 n.6
(9th Cir. 2013). As the Supreme Court has explained, an
actual innocence finding “requires a holistic judgment about
‘all the evidence’ and its likely effect on reasonable jurors
applying the reasonable-doubt standard.” House, 547 U.S. at
539 (quoting Schlup v. Delo, 513 U.S. 298, 328 (1995)).
“[T]he inquiry 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 329 (emendations in original)).

    As in Stewart, “[w]e need not determine which standard
is correct in this case . . . because under either standard
[Jones] has failed to establish” a freestanding claim of actual
innocence.5 2014 WL 1707033, at *7. We therefore choose


  5
    In its opinion holding that Jones established his actual innocence of
sexual penetration, the district court abused its discretion by applying the
wrong legal standard. See Koon v. United States, 518 U.S. 81, 100 (1996)
(“A district court by definition abuses its discretion when it makes an error
of law.”). While the Supreme Court has indicated that a court must make
                          JONES V. TAYLOR                              11

to review de novo the district court’s conclusion that Jones is
actually innocent, based on our holistic assessment of the
evidence adduced at the hearings before the district court and
at trial and the likely effect all this evidence would have on
reasonable jurors in order to clarify how district courts should
evaluate actual innocence claims.

                                   III.

                                    A.

    We have not resolved whether a freestanding actual
innocence claim is cognizable in a federal habeas corpus
proceeding in the non-capital context, although we have
assumed that such a claim is viable. See Osborne v. Dist.
Attorney’s Office for the Third Judicial Dist., 521 F.3d 1118,
1130 (9th Cir. 2008), rev’d on other grounds, 557 U.S. 52
(2009); see also McQuiggin v. Perkins, 133 S. Ct. 1924, 1931
(2013) (noting that it is, as yet, unresolved whether a
freestanding actual innocence claim is cognizable in a federal
habeas proceeding); Herrera v. Collins, 506 U.S. 390, 417
(1993) (acknowledging the possibility that a freestanding
actual innocence claim would exist in the capital context).
We need not resolve this difficult question today, however,
because, even assuming that such a free standing claim of
actual innocence in a non-capital case is cognizable, we



“a holistic judgment about ‘all the evidence’ and its likely effect on
reasonable jurors applying the reasonable-doubt standard,” House,
547 U.S. at 539 (quoting Schlup, 513 U.S. at 328), here, the district court
evaluated only the new evidence, the witnesses’ recantations, without
engaging in a holistic assessment of all the evidence or explaining the
likely effect of the new evidence on reasonable jurors. See Jones, 2013
WL 67800605, at *9–*10.
12                    JONES V. TAYLOR

conclude that Jones has not made a sufficient showing to
merit relief.

    The standard for establishing a freestanding claim of
actual innocence is “‘extraordinarily high’ and . . . the
showing [for a successful claim] would have to be ‘truly
persuasive.’” Carriger v. Stewart, 132 F.3d 463, 476 (9th
Cir. 1997) (quoting Herrera, 506 U.S. at 417). We have held
that, at a minimum, the petitioner must “go beyond
demonstrating doubt about his guilt, and must affirmatively
prove that he is probably innocent.” Id. (citing Herrera,
506 U.S. at 442–44 (Blackmun, J., dissenting)). While we
have not articulated the precise showing required, we have
discussed the standard for a freestanding actual innocence
claim by reference to the Schlup “gateway” showing, which
permits a petitioner to proceed on a procedurally barred claim
by showing actual innocence. See, e.g., House, 547 U.S. at
554–55; Carriger, 132 F.3d at 477. In order to pass through
the Schlup actual innocence gateway, a petitioner must
demonstrate that “in light of new evidence, ‘it is more likely
than not that no reasonable juror would have found [the]
petitioner guilty beyond a reasonable doubt.’” House,
547 U.S. at 537 (quoting Schlup, 513 U.S. at 327). This new
evidence must be reliable, and the reviewing court “may
consider how the timing of the submission and the likely
credibility of the affiants bear on the probable reliability of
that evidence.” Schlup, 513 U.S. at 332. The federal habeas
court “must consider all the evidence, old and new,
incriminating and exculpatory, without regard to whether it
would necessarily be admitted under rules of admissibility
that would govern at trial.” House, 547 U.S. at 538 (internal
quotation marks and citation omitted). “Based on this total
record, the court must make ‘a probabilistic determination
                     JONES V. TAYLOR                       13

about what reasonable, properly instructed jurors would do.’”
Id. (quoting Schlup, 513 U.S. at 329).

    The Supreme Court most recently applied this framework
in House. See id. at 554–55. There, new DNA evidence
showed that semen found on the victim was not the
petitioner’s, negating the prosecution’s theory of motive and
undermining the petitioner’s link to the crime scene. Id. at
540–41. Additionally, new scientific evidence proved that
blood found on the petitioner’s clothes could not have come
from the victim while she was alive. Id. at 542–46. The
evidence in that case also included new testimony from
multiple, disinterested witnesses who testified to facts
implicating a different suspect and whose testimony was
supported by independent evidence. Id. at 548–53. The
Court found this evidence insufficient to meet the high
standard required to merit relief on a freestanding actual
innocence claim because it was not a case of “conclusive
exoneration,” and several pieces of evidence remained
uncontested that pointed to the petitioner’s guilt. For
example, there was blood on the petitioner’s pants and
testimony that could reasonably be interpreted as connecting
him to the crime scene. Id. at 553–55.

    In Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000),
we similarly applied this framework and rejected a
freestanding actual innocence claim despite new scientific
evidence. There, the petitioner presented new expert medical
testimony that, to a 95 percent medical certainty, the
petitioner could not have had the requisite premeditation and
specific intent to kill because he was intoxicated with PCP at
the time of the murder. Id. at 1165. We concluded that
although that evidence “certainly cast doubt” on the
petitioner’s guilt, it was insufficient to warrant relief on a
14                   JONES V. TAYLOR

freestanding habeas petition because another doctor testified
that a person with petitioner’s level of intoxication would
“not necessarily be unable to process thought, premeditate,
deliberate and intend to kill.” Id.

    Finally, in Carriger, we rejected a freestanding actual
innocence claim based on our conclusion that the petitioner
had “presented no evidence, for example, demonstrating he
was elsewhere at the time of the murder, nor [was] there any
new and reliable physical evidence, such as DNA, that would
preclude any possibility of [his] guilt.” 132 F.3d at 477.
There, we rejected the petitioner’s claim even though another
suspect reliably confessed to the murder, described details of
the crime that only a participant would have known, and
boasted that the petitioner had been set up, and all the other
evidence pointed as directly to the new suspect as to the
petitioner. Id. at 478–79.

                             B.

    With these cases as guideposts, we cannot say that Jones
has demonstrated that he is probably innocent. Jones asserts
his innocence based on recantation testimony alone. His
petition is therefore lacking the type of proof Carriger
implied might be sufficient; indeed, the proof is even less
reliable than the evidence rejected in House, Jackson, and
Carriger, because it is all in the form of recantation
testimony, uncorroborated by any other evidence. As a
general matter, “[r]ecantation testimony is properly viewed
with great suspicion.” Dobbert v. Wainwright, 468 U.S.
1231, 1233 (1984) (Brennan, J., dissenting from denial of
certiorari); see also Allen v. Woodford, 395 F.3d 979, 994
(9th Cir. 2004). “Recanting testimony is easy to find but
difficult to confirm or refute: witnesses forget, witnesses
                      JONES V. TAYLOR                         15

disappear, witnesses with personal motives change their
stories many times, before and after trial.” Carriger,
143 F.3d at 483 (Kozinski, J., dissenting). “It upsets society’s
interest in the finality of convictions, is very often unreliable
and given for suspect motives . . . .” Dobbert, 468 U.S. at
1233–34. For these reasons, a witness’ “later recantation of
his trial testimony does not render his earlier testimony
false.” Allen, 395 F.3d at 994; see also Christian v. Frank,
595 F.3d 1076, 1084 n.11 (9th Cir. 2010). Rather, a witness’
recantation is considered in addition to his trial testimony and
in the context in which he recanted when assessing the likely
impact it would have on jurors. See Christian, 595 F.3d at
1084 n.11 (considering the timing of the witness’ recantation
and the contents of his earlier testimony in assessing the
weight of the recantation); Graves v. Cockrell, 351 F.3d 143,
153 (5th Cir. 2003) (noting that a recanting witness had given
numerous contradictory statements in assessing the weight to
give to his new testimony).

    Although the district court found S.J. credible and Ken
Jones credible in part, we do not rely on these determinations
because we are uncertain about the basis for some of the
district court’s conclusions and unpersuaded that every
reasonable juror would credit the recantations as the district
court did. See House, 547 U.S. at 539–40 (noting that it
would consider the likely effect of testimony on reasonable
jurors and was not bound by the district court’s assessment of
the witnesses, especially given that its explanation for its
credibility finding was unclear).

    The district court stated that it credited Ken Jones’
testimony, but also noted that it was apparent from the record
that his motivation for recanting was his naive belief that
Jones could not have digitally penetrated S.J.’s vagina
16                    JONES V. TAYLOR

because a subsequent physical examination demonstrated that
S.J.’s hymen was intact. Jones, 2013 WL 6780605, at *9.
From the record before us, it appears that the district court did
not resolve this conflict in crediting Ken Jones’ testimony.

    Similarly, the district court credited S.J.’s testimony, but
also noted that it could not “assess to what degree, if any
[S.J.’s] present recantation has been influenced by her
family—K. Jones and Pond in particular.” Id. at *10. The
district court’s failure to resolve whether S.J. was influenced
to recant by her family is particularly troubling in light of its
description of Ken Jones as “imposing and controlling” and
someone who “dominated” “a highly dysfunctional home.”
Id. In other words, we cannot assess why the district court
found S.J.’s testimony credible despite the possibility, which
it recognized, that her father pressured her into recanting.
Although the district court noted that her testimony about her
conservative upbringing and limited knowledge was
corroborated by the record, this conclusion does not preclude
the possibility that S.J. was influenced to testify by her family
and does not prove the truth of her assertion that Jones did not
penetrate her. We therefore conclude that the district court’s
bases for crediting S.J.’s and Ken Jones’ testimony are
unclear, “a consideration that weakens our reliance on its
determinations.” See House, 547 U.S. at 539–40.

    Several features of the recantations here persuade us that
they are insufficient to prove Jones’ innocence. The
recantations are all from Jones’ family members, which
reduces their weight and reliability. See House, 547 U.S. at
552 (noting that testimony by friends or relations of the
accused might have less probative value than testimony from
disinterested witnesses); McCray v. Vasbinder, 499 F.3d 568,
573 (6th Cir. 2007) (noting that family members might have
                       JONES V. TAYLOR                          17

a personal stake in a defendant’s exoneration). Moreover, all
three witnesses came forward with changed stories at roughly
the same time, years after trial, and only one of them
provided a reason for the delay. The other two changed their
stories long after trial with no more explanation than that
their memories and understandings of the events had
changed. The timing of the recantations casts some doubt on
their veracity, especially as to Ken Jones and Jennifer Pond,
who provide no explanation for their delay in coming
forward. See Christian, 595 F.3d at 1084 n.11 (noting that a
witness’ recantation was “especially unreliable given that it
was made more than a decade after his original [testimony]”);
McCray, 499 F.3d at 573 (discounting evidence from
witnesses who did not provide a good explanation for why
they delayed in coming forward).

    But even if we accept that the three witnesses testified
truthfully based on their memory at the time of the
evidentiary hearing, i.e., if we accept, as the district court did,
that they did not change their story for ulterior motives, their
recantations are insufficient to demonstrate that Jones is
actually innocent under the standard applied in House,
Jackson, and Carriger. Neither Ken Jones’ nor Jennifer
Pond’s recantation constitutes compelling evidence of Jones’
innocence, even assuming the jury were to believe their
recantations over their trial testimony. Because neither
witnessed the abuse, their testimony is of little weight in the
actual innocence analysis. Cf. Schlup, 513 U.S. at 324
(identifying “trustworthy eyewitness accounts” as evidence
that might be sufficient to show actual innocence); Carriger,
132 F.3d at 483 (same); see also Cox v. Burger, 398 F.3d
1025, 1031 (8th Cir. 2005) (discounting testimony from a
witness who was not present at the scene of the crime in
assessing an actual innocence claim). A reasonable juror
18                    JONES V. TAYLOR

could either convict or acquit based on S.J.’s testimony,
regardless of whether Jones admitted to his father and sister
that he penetrated S.J. or whether S.J. complained to Jennifer
Pond of vaginal area soreness around the time of the abuse.

    That leaves S.J.’s recantation as the most compelling
evidence of Jones’ innocence. See Gandarela v. Johnson,
286 F.3d 1080, 1086 (9th Cir. 2001) (suggesting that victim
recantation or eye witness testimony may be given more
weight in assessing an actual innocence claim than other
types of evidence). But see Doe v. Menefee, 391 F.3d 147,
173 (2d Cir. 2004) (rejecting a Schlup claim despite the
victim’s recantation). We do not, however, find that even her
recantation is sufficient to establish Jones’ probable
innocence because we cannot say that every juror would
credit her recantation testimony over her trial testimony and
the descriptions of the abuse she gave in her 2000 and 2002
interviews, even if they believed that she testified truthfully
to the best of her present recollection at the evidentiary
hearing.

    There are several impediments to fully crediting S.J.’s
recantation testimony over her trial testimony. Like much
recantation testimony, S.J.’s recantation occurred years after
the events she describes. Jones abused S.J. in late 1998 or
early 1999, when S.J. was nine years old; this was
approximately thirteen years before she came forward with
her recantation. A reasonable juror could very well believe
that S.J.’s memory of the abuse faded or changed in the more
than thirteen years since the incident occurred and, for that
reason, credit the testimony that was closer in time to the
abuse. See Herrera, 506 U.S. at 403–04 (noting that the
passage of time diminishes the reliability of criminal
convictions, in part due to the erosion of memory that occurs
                      JONES V. TAYLOR                        19

over time); McCleskey v. Zant, 499 U.S. 467, 491 (1991)
(recognizing that witnesses’ memories erode over time); see
also Christian, 595 F.3d at 1084 n.11.

    There is also some specific indication in the record before
us that S.J.’s memory of the abuse might have faded or
changed in the thirteen years that have passed since the abuse
occurred. S.J.’s memory of the abuse appeared to have
already faded somewhat by 2002. In her 2002 interview, S.J.
recounted many details of the abuse, but also stated
repeatedly that she did not remember exactly what had
happened. A reasonable juror could infer that if S.J. forgot
many details of the abuse three years after it occurred, her
memory of the abuse had further faded in the additional ten
years since that time. A reasonable juror could thus conclude
that S.J.’s earlier testimony was more reliable and, therefore,
credit her earlier description that Jones penetrated her vagina
with his finger over her present assertion that he did not.

    Further, many of the issues raised in S.J.’s recantation
were presented to the jury at trial. S.J. explains in her
recantation that she did not understand her anatomy at the
time of trial or the preceding interviews, so she was incorrect
when she said that Jones penetrated her vagina. Jones further
contends in his petition that the terms S.J. used at trial – the
term “vagina,” in particular – were provided to her and that
she did not understand what they meant, in part due to her
conservative upbringing. These facts are of little relevance in
establishing Jones’ innocence on a habeas petition, however,
because the jury was presented with these issues at trial and
convicted Jones anyway. The jury was aware when it
rendered its decision that S.J. had limited knowledge of her
sexual anatomy and that she learned the terms she used to
describe the abuse during interviews about the abuse. That
20                        JONES V. TAYLOR

the jury nevertheless voted to convict Jones of unlawful
sexual penetration suggests that it did not rely on S.J.’s
knowledge of her sexual anatomy in concluding that Jones
penetrated S.J. with his finger. See Wood v. Hall, 130 F.3d
373, 379 (9th Cir. 1997) (“That the jury nevertheless voted to
convict [despite its knowledge that the victim had an intact
hymen] suggests that they did not believe an intact hymen
disproved [the defendant’s] guilt.”). This circumstance
therefore undermines the inference that no reasonable juror
would have convicted Jones in light of the purportedly new
evidence about S.J.’s limited anatomical knowledge at the
time of trial. See id. (discounting the relevance of facts of
which the jury was aware in establishing actual innocence).

    Finally, a reasonable juror would not be required to rely
exclusively on S.J.’s assessment of whether Jones penetrated
her vagina in determining his guilt. A reasonable juror could
conclude that Jones penetrated S.J. based on S.J.’s description
of Jones’ actions and her sensations of them, regardless of
whether she describes the abuse as penetration. In her
interviews and trial testimony, S.J. said that it hurt when
Jones touched her genitals and that Jones “wiggled” his finger
and moved it “back and forth.” A reasonable juror could
conclude that this description is consistent with penetration,
even if S.J. did not know at the time what it meant to be
penetrated.6

   The most that can be said of the new testimony is that it
undercuts the evidence presented at trial. Evidence that


 6
    The statute, Or. Rev. Stat. § 16.411(1), does not define “penetration,”
but in the related crime of rape, “sexual intercourse, is defined as having
“its ordinary meaning and occurs upon any penetration, however slight.”
Or. Rev. Stat. § 163.305(7).
                      JONES V. TAYLOR                         21

merely undercuts trial testimony or casts doubt on the
petitioner’s guilt, but does not affirmatively prove innocence,
is insufficient to merit relief on a freestanding claim of actual
innocence. See House 547 U.S. at 555 (rejecting freestanding
actual innocence claim even though the petitioner had “cast
considerable doubt on his guilt”); Jackson, 211 F.3d at 1165
(rejecting a freestanding actual innocence claim even though
the petitioner’s new evidence “certainly cast doubt on his
conviction”); Carriger, 132 F.3d at 477 (rejecting a
freestanding claim when the postconviction evidence
“serve[d] only to undercut the evidence presented at trial, not
affirmatively to prove [the petitioner’s] innocence”).

    There is no “new and reliable physical evidence, such as
DNA, that would preclude any possibility of [Jones’s] guilt.”
Carriger, 132 F.3d at 477. Nor is there scientific or
testimonial evidence even as persuasive as the evidence in
House and Jackson, which was found to be insufficient. The
recantations here are not from disinterested eyewitnesses,
and, although victim recantation might in some instances be
evidence of innocence, see Gandarela, 286 F.3d at 1086, for
the reasons discussed above, the recantation here is not
sufficiently reliable that we can conclude that every juror
would credit it. Further, as in House, there is other
testimonial evidence supporting the verdict, which further
persuades us that habeas relief is not warranted in this
instance. See House, 547 U.S. at 553–54. We, therefore,
cannot say that “in light of the new evidence, no juror, acting
reasonably, would have voted to find [Jones] guilty beyond
a reasonable doubt.” Schlup, 513 U.S. at 329. Accordingly,
we hold that Jones has not made the “‘extraordinarily high’”
and “‘truly persuasive’” showing required for habeas relief on
a freestanding claim of actual innocence. See Carriger,
132 F.3d at 476 (quoting Herrera, 506 U.S. at 417).
22                  JONES V. TAYLOR

                           IV.

   For the foregoing reasons, the judgment of the district
court is REVERSED.
