                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                              FILED
                            FOR THE NINTH CIRCUIT                               NOV 05 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

PHILIP NOEL CAIN,                                No. 10-35366

              Petitioner - Appellant,            D.C. No. 6:03-cv-00228-HO

  v.
                                                 MEMORANDUM*
STATE OF OREGON,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                      Argued and Submitted October 8, 2013
                               Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.



       Philip Noel Cain appeals from the district court’s dismissal of his habeas

petition. The district court determined that despite the victim’s unequivocal

recantation, Cain had failed to show the requisite actual innocence required by the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Supreme Court’s opinion in Schlup v. Delo, 513 U.S. 298 (1995), to excuse the

untimeliness of his habeas petition. We hold that the district court failed to apply

the legal standard set forth in Schlup, and applying that standard, determine that

Cain has made a sufficient showing of actual innocence to excuse the untimeliness

of his habeas petition.1 Accordingly, we vacate the district court’s order and

remand the case for consideration of Cain’s habeas petition on its merits.

      In Schlup, the Supreme Court established an exception to the timeliness

requirement for habeas petitions holding that a petitioner could avoid the

procedural bar if he showed “a constitutional violation has probably resulted in the

conviction of one who is innocent.” 513 U.S. at 327 (quoting Murray v. Carrier,

477 U.S. 478, 496 (1986)). The Court explained: “To establish the requisite

probability, the petitioner must show that it is more likely than not that no

reasonable juror would have convicted him in the light of the new evidence. The

petitioner thus is required to make a stronger showing than that needed to establish

prejudice.” Id.




      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                          2
      In House v. Bell, 547 U.S. 518 (2006), the Supreme Court offered further

guidance on the actual innocence standard. First, while recognizing that the Schlup

standard permits review in only extraordinary cases, it noted that:

      the Schlup standard does not require absolute certainty about the
      petitioner’s guilt or innocence. A petitioner’s burden at the gateway
      stage is to demonstrate that more likely than not, in light of the new
      evidence, no reasonable juror would find him guilty beyond a
      reasonable doubt – or, to remove the double negative, that more likely
      than not any reasonable juror would have reasonable doubt.

Id. at 538. Second, the Court noted that “[b]ecause a Schlup claim involves

evidence the trial jury did not have before it, the inquiry requires the federal court

to assess how reasonable jurors would react to the overall, newly supplemented

record.” Id. Third, in response to the state’s argument for deference to the district

court’s findings, the Court stated:

      Deference is given to a trial court’s assessment of evidence presented
      to it in the first instance. Yet the Schlup inquiry, we repeat, requires a
      holistic judgment about all the evidence, and its likely effect on
      reasonable jurors applying the reasonable-doubt standard. As a
      general rule, the inquiry does not turn on discrete findings regarding
      disputed points of fact, and it is not the district court’s independent
      judgment as to whether reasonable doubt exists that the standard
      addresses. Here, although the District Court attentively managed
      complex proceedings, carefully reviewed the extensive record, and
      drew certain conclusions about the evidence, the court did not clearly
      apply Schlup’s predictive standard regarding whether reasonable
      jurors would have reasonable doubt.

Id. at 539-40 (quotation marks and citations omitted).


                                           3
      We adhere to the spirit and holding of Schlup. Lee v. Lampert, 653 F.3d

929, 932 (9th Cir. 2011) (en banc) (holding that “a credible claim of actual

innocence constitutes an equitable exception to AEDPA’s limitations period, and a

petitioner who makes such a showing may pass through the Schlup gateway and

have his otherwise time-barred claims heard on the merits”).

      Here, the district court recognized that the victim’s recantation if true would

meet the Schlup gateway test. However, after holding an evidentiary hearing, the

district court concluded that Cain had not made the requisite showing to pass

through the gateway because despite the victim’s “current lack of equivocation, the

court finds her recantation now to lack credibility.”

      We review the district court’s credibility determination pursuant to the two-

step test set forth in United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)

(en banc). We first “determine de novo whether the trial court identified the

correct legal rule to apply to the relief requested.” Id. If the court applied the

correct legal ruling we “determine whether the trial court’s application of the

correct legal standard was (1) illogical, (2) implausible, or (3) without support in

inferences that may be drawn from the facts in the record.” Id. (quotation marks

and citations omitted).




                                           4
      Applying the first step, we conclude that the district court failed to apply the

correct legal rule. The court failed to make the “probabilistic determination about

what reasonable, properly instructed jurors would do” as required by the Supreme

Court. House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329). Instead, it

inappropriately made “an independent factual determination about what likely

occurred.” Id. As in House, the district court “did not clearly apply Schlup’s

predictive standard regarding whether reasonable jurors would have reasonable

doubt.” Id. at 540. Accordingly, we vacate the district court’s order denying

Cain’s habeas petition.

      Reviewing the record, including the evidentiary hearing held by the district

court, we conclude that Cain has made the requisite showing of actual innocence to

pass through the Schlup gateway. In doing so we express no opinion about “what

likely occurred” and remand the case to the district court to consider the merits of

the habeas petition, such as they may be.

      VACATED and REMANDED. Costs should be taxed against the

appellee. Fed R. P. 39 (a) (3).




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