                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAR 25 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARK A. HANSON,                                 No.    18-15547

                Petitioner-Appellee,            D.C. No.
                                                3:04-cv-00130-MMD-VPC
 v.

RENEE BAKER, Warden; ATTORNEY                   MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellants.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Miranda M. Du, District Judge, Presiding

                     Argued and Submitted February 14, 2019
                            San Francisco, California

Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.

      Renee Baker, Warden, and the Attorney General for the State of Nevada

(collectively, “the State”) appeal the district court’s judgment granting Mark

Hanson’s habeas corpus petition under 28 U.S.C. § 2254.1


      *
              This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       1
              In addition to the appeal, two motions are pending. The State’s motion
for leave to file an oversized brief is GRANTED. Hanson’s request to file a sur-
reply is DENIED.
      On January 18, 1998, Tamara Smart—Hanson’s 20-month old step-

daughter—suffered a severe head injury while in Hanson’s care. Tamara died from

her injuries the next day.

      Hanson was convicted of first-degree murder by child abuse for Tamara’s

death. At trial, Hanson contended that a fall from the front porch of the family’s

mobile home in Elko, Nevada, caused Tamara’s injuries. The prosecution argued

that physical abuse caused Tamara’s injuries, and it relied almost exclusively on

testimony from medical experts to prove its case. Those experts testified that

Tamara’s injuries were diagnostic of Shaken Baby Syndrome and that short falls

cannot cause fatal head injuries, like the injuries Tamara suffered.

      In the nearly two decades since Hanson’s trial, the scientific integrity of the

testimony provided by the State’s experts has been undermined. Medical experts

now agree, and documentary evidence proves, that short falls can cause fatal head

injuries in children; experts also agree that injuries, like those suffered by Tamara,

can be explained by causes other than abuse.

      This sea-change in scientific consensus forms the basis for Hanson’s federal

habeas petition. After an evidentiary hearing, the district court held that Hanson

had demonstrated that he was actually innocent within the meaning of Schlup v.

Delo, 513 U.S. 298 (1995), and McQuiggin v. Perkins, 569 U.S. 383 (2013).

Specifically, the district court determined that, based on “new reliable evidence”


                                           2
that was not presented at trial, Schlup, 513 U.S. at 324, Hanson had demonstrated

that “it is more likely than not that no reasonable juror would have convicted him

in the light of the new evidence.” McQuiggin, 569 U.S. at 399.

      Because Hanson satisfied the high threshold necessary to pass through the

actual innocence gateway under Schlup and McQuiggin, the district court

proceeded to address on the merits the otherwise-procedurally defaulted claims in

Hanson’s habeas petition. Ultimately, the district court granted Hanson relief on

Ground Ten––that the introduction of flawed expert testimony at trial undermined

the fundamental fairness of Hanson’s entire trial, in violation of his right to due

process.

      On appeal, the State does not contest the district court’s finding that Hanson

has satisfied the gateway “actual innocence” standard under Schlup and

McQuiggin. The State also has not explicitly contested the district court’s

conclusion on the merits of Ground Ten.

      Instead, the State mounts two procedural challenges to the district court’s

decision, arguing: (1) the district court incorrectly determined Ground Ten of

Hanson’s petition was procedurally defaulted and therefore technically exhausted,

because Nevada’s state procedural bars have an exception for actual innocence,

similar to the federal Schlup exception; and (2) the district court erred by

considering evidence adduced at Hanson’s gateway innocence hearing to decide


                                           3
the merits of Ground Ten.

      We review the district court’s order granting or denying a habeas petition de

novo. Gonzalez v. Duncan, 551 F.3d 875, 879 (9th Cir. 2008). The district court’s

factual findings are reviewed for clear error. Reynoso v. Giurbino, 462 F.3d 1099,

1108-09 (9th Cir. 2006).

      We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

      1.     The district court correctly concluded that Ground Ten was

procedurally defaulted and therefore exhausted.

      Where a petitioner’s claims are procedurally defaulted in state courts, those

claims are also exhausted because “there are no state remedies any longer

‘available.’” Coleman v. Thompson, 501 U.S. 722, 732 (1991) (quoting 28 U.S.C. §

2254(b)). Even “where a federal habeas petitioner raises a claim which has never

been presented in any state forum, a federal court may properly determine whether

the claim has been procedurally defaulted under state law.” Harris v. Reed, 489 U.S.

255, 269 (1989) (O’Connor, J., concurring) (emphasis in original).

      If Hanson attempted to raise Ground Ten now, in a third state habeas petition,

the Nevada courts would treat that petition as procedurally barred; the Nevada

Supreme Court already concluded Hanson’s second state habeas petition, filed over

a decade ago, was untimely, successive, and barred by laches. Indeed, the State

recognizes as much. The State insists, however, that the availability of an exception


                                         4
to those procedural bars for actual innocence, see Pellegrini v. Nevada, 34 P.3d 519,

537 (Nev. 2001), requires Hanson to return to state court before Ground Ten can be

considered exhausted.

      This argument fails because Hanson already presented his actual innocence

argument to the Nevada state courts.2 The district court found that the “record

reflects” that “Hanson argued in state court that he is actually innocent” in “an

attempt to overcome procedural bars in state court.” That finding is not clearly

erroneous. Reynoso, 462 F.3d at 1108-09. In the state district court, Hanson

presented the affidavit of Dr. Ophoven—a medical expert who would later testify,

consistent with her state district court affidavit, at Hanson’s hearing in federal

court—and argued that her affidavit provided “new evidence” that would “support

a motion for a new trial.” In the Nevada Supreme Court, Hanson’s pro se filings

argued that he was actually innocent under Schlup and Pellegrini, that Dr.

Ophoven’s affidavit supported his claim of innocence, and that the intervening

changes in scientific understanding rendered obsolete the testimony used to convict

him. Indeed, Hanson pleaded with the Nevada Supreme Court to “please look at all

the documents that clearly show evidence of actual innocence, which is a




      2
             Because Hanson did present his actual innocence arguments to the
Nevada state courts, we need not decide whether Hanson was required to do so in
order to exhaust his claims.

                                         5
miscarriage of justice,” and attached the argument and affidavit from state district

court to support his claim of actual innocence.

       Although the Nevada courts declined to address Hanson’s actual innocence

argument, Hanson afforded the state courts with the necessary opportunity to

consider the argument. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003)

(exhaustion requires presentation of the “operative facts” and “legal theory”).

Accordingly, Hanson is not required to file a third habeas petition, and present his

actual innocence argument again, in order to exhaust Ground Ten. See O’Sullivan v.

Boerckel, 526 U.S. 838, 844 (1999) (noting that exhaustion does not “require

prisoners to file repetitive petitions”).

       The district court therefore correctly determined that Ground Ten was

procedurally defaulted and exhausted.

       2.     The district court did not err in considering evidence adduced at

Hanson’s hearing on his gateway innocence claim to decide the merits of Ground

Ten.

       Section 2254(e)(2) limits the discretion of federal district courts to hold

evidentiary hearings on a habeas petitioner’s claims in certain circumstances. See 28

U.S.C. § 2254(e)(2). However, § 2254(e)(2)’s opening clause limits its application

to those instances where a prisoner “has failed to develop the factual basis of a claim

in State court proceedings.” Id. (emphasis added). The Supreme Court has


                                            6
interpreted this language to require some showing of a “lack of diligence, or some

greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v.

Taylor, 529 U.S. 420, 432 (2000). If a prisoner acts diligently in attempting to

develop the factual basis for a claim, § 2254(e)(2)’s limitations do not apply. Id. at

437.

       Hanson attempted to develop the factual basis for his actual innocence

claim—which, critically, would have included all the evidence necessary to support

his claim under Ground Ten—in the state district court. Hanson requested an

evidentiary hearing, and he sought additional funds in order to hire experts to testify

at the hearing. However, at the State’s urging, the state district court vacated the

evidentiary hearing, dismissed the petition on procedural grounds, and denied the

request for additional funds to hire experts. After the dismissal of the petition,

Hanson’s court-appointed counsel moved to withdraw. But, even then, counsel

requested that Hanson be provided new counsel to bring a motion for a new trial

based on the changed scientific evidence. That request, too, went unanswered.

       Hanson therefore made a “reasonable attempt, in light of the information

available at the time, to investigate and pursue” his claims. Id. at 435. Therefore, §

2254(e)(2)’s limitations do not apply, and the district court did not err in considering




                                           7
the evidence adduced at Hanson’s evidentiary hearing to decide the merits of Ground

Ten.3

        3.   The district court’s order granting a conditional writ of habeas corpus

to Mark Hanson is AFFIRMED. The district court shall order Hanson released from

custody within sixty days of the issuance of the mandate, unless, within that sixty-

day period, the State files a written notice in the district court of its election to retry

Hanson, and the State thereafter, within sixty days after the filing of that notice,

actually commences Hanson’s retrial.

             AFFIRMED.




        3
             We need not address the State’s suggestion that the district court
improperly relied on Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir. 2016), to grant
relief on Ground Ten. The State, correctly, did not argue that this provided an
independent basis for reversing the district court. And, under any circumstances,
the argument is without merit. See Gimenez, 821 F.3d at 1143 (noting courts,
including the Supreme Court, “have long considered arguments that the
introduction of faulty evidence violates a petitioner’s due process right to a
fundamentally fair trial—even if that evidence does not specifically qualify as
‘false testimony.’”).

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