                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 15-3622
                          ___________________________

                                    James A. Holliday

                          lllllllllllllllllllll Plaintiff - Appellant

                                              v.

Wendy Kelley, Director, Arkansas Department of Correction (originally named as
                                 Ray Hobbs)

                         lllllllllllllllllllll Defendant - Appellee
                                        ____________

                      Appeal from United States District Court
                   for the Eastern District of Arkansas - Pine Bluff
                                    ____________

                             Submitted: February 18, 2016
                               Filed: February 24, 2016
                                    [Unpublished]
                                    ____________

Before MURPHY, ARNOLD, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

      Arkansas prisoner James Holliday seeks to appeal following the district court’s
order dismissing his 28 U.S.C. § 2254 petition as untimely, and denying a certificate
of appealability (COA). We conclude that reasonable jurists would find debatable the
correctness of the district court’s ruling, and whether the petition states a valid claim.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (COA requirements). We therefore
grant Holliday’s motion to proceed in forma pauperis, and we grant his request for a
COA. For the following reasons, we also reverse the dismissal.

        Holliday was convicted of the rape and sexual assault of his granddaughter.
The victim’s testimony included that Holliday had vaginal intercourse with her. The
victim also admitted that she had recanted her story more than once, and that she had
frequently lied in the past. See Holliday v. State, 2010 Ark. App. 705 (Ark. Ct. App.
2010). After seeking relief in the Arkansas state courts, Holliday brought this section
2254 petition. In his petition, he asserted a claim of “actual innocence,” supported by
the allegation that a “DNA Test Rape Kit” existed which showed that the victim was
still a virgin, and demonstrated that he did not rape her. He further claimed that the
state prosecutor introduced the victim’s testimony, knowing it to be false. With regard
to his petition’s timeliness, he again reiterated that he was actually innocent of the
charges, alleging that his granddaughter, whom he had adopted, had lied about the
assault and rape in order to be able to move back to her mother’s home, a more
permissive environment.

       Following the State’s response, the district court dismissed the petition,
concluding that it was time-barred, that Holliday’s claims other than actual innocence
were procedurally defaulted, and that his allegations were insufficient to meet the
actual-innocence standard for overcoming procedural default and untimeliness. We
find that the district court correctly concluded that Holliday’s section 2254 petition
was untimely, as he did not file it, or any state proceeding that would toll the
limitations period, within one year of the date his conviction became final. See 28
U.S.C. § 2244(d) (limitations period and tolling provisions).

      We conclude, however, that Holliday’s allegation that a DNA rape kit exists
which would exonerate him might allow him to pursue his section 2254 petition
notwithstanding its untimeliness, and might also excuse any procedural default. First,

                                         -2-
giving Holliday’s pro se petition the benefit of liberal construction, his allegation can
fairly be read to suggest that the DNA rape kit is evidence about which Holliday was
previously unaware. The record is simply insufficient to reveal when Holliday learned
about the DNA rape kit, and whether he was diligent in pursuing habeas relief once
he became aware of it. Second, such evidence could support a conclusion that it is
more likely than not that no reasonable juror would have convicted Holliday. See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928, 1935 (2013) (new evidence of actual
innocence may serve as gateway through which to overcome both procedural bar and
limitations bar on initial federal habeas action; to establish gateway, petitioner must
show that, in light of new evidence, it is more likely than not that no reasonable juror
would have voted to convict him).

       Because questions remain as to when Holliday discovered the existence of the
DNA rape kit, and what the effect of this evidence would have been on a reasonable
juror, considering all the evidence at trial, see House v. Bell, 547 U.S. 518, 538 (2006)
(describing assessment district court must make), we conclude that it is possible that
Holliday can meet the actual-innocence gateway to overcome untimeliness and
procedural default. We further conclude that his habeas petition asserts a valid
constitutional claim that the state prosecutor introduced the victim’s testimony,
knowing it to be false.1 Accordingly, we vacate the district court’s dismissal of
Holliday’s section 2254 petition, and we remand for the district court to determine in
the first instance when Holliday learned of the DNA rape kit, and the likely effect of
the evidence on a reasonable juror.
                         ______________________________


      1
        Because the dismissal was based on procedural grounds, the district court
never addressed the merits of this claim. We will not attempt to consider whether
Holliday can make a showing of constitutional error which would warrant habeas
relief. See Slack, 529 U.S. at 485 (noting that because only procedural matters were
addressed, Court would not address merits of constitutional claim; matter would need
to be addressed in further proceedings after remand).

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