                                            Volume 1 of 2

                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ROGER PAUL SMITH,                        No. 04-35253
            Petitioner-Appellant,
              v.                           D.C. No.
                                        CV-98-00059-OMP
GEORGE H. BALDWIN,
                                            OPINION
            Respondent-Appellee.
                                    
       Appeal from the United States District Court
                for the District of Oregon
        Owen M. Panner, Senior Judge, Presiding

                 Argued and Submitted
            March 9, 2005—Portland, Oregon

                 Filed October 24, 2006

     Before: Procter Hug, Jr., Stephen Reinhardt, and
              Jay S. Bybee, Circuit Judges.

              Opinion by Judge Reinhardt;
                Dissent by Judge Bybee




                          17725
                     SMITH v. BALDWIN                17729


                       COUNSEL

Thomas J. Hester, Office of the Federal Public Defender,
Portland, Oregon, for the petitioner-appellant.

Hardy Myers, Attorney General for the State of Oregon, Mary
H. Williams, Solicitor General (On the Briefs); Kathleen
Cegla, Assistant Attorney General, Salem, Oregon (Argued),
for the respondent-appellee.
17730                  SMITH v. BALDWIN
                         OPINION

REINHARDT, Circuit Judge:

                              I.

   This case presents the question whether a state prisoner
who contends that he is actually innocent, but whose principal
witness is coerced by the state into not testifying on his
behalf, may pursue his federal constitutional claims in federal
court notwithstanding his failure to comply with all of the
applicable procedural prerequisites. Roger Smith is currently
serving a life sentence with a 30-year minimum term. The dis-
trict court dismissed on procedural grounds his petition for a
writ of habeas corpus without reaching the merits of his
claims. It found that he had not exhausted those claims in
state court and that, because state procedural rules barred him
from doing so now, the claims were procedurally defaulted.
Like the district court, we do not consider the merits of his
case. All we decide is that, under an exception to the applica-
ble procedural rules, Smith may pursue his federal constitu-
tional claims in federal court. Both the facts and the law are
complex, however, as they tend to be these days in almost all
habeas corpus cases.

   Smith argues on this appeal that his petition has not been
procedurally defaulted and that, if it has, the procedural
default should be excused on the basis of his claim of actual
innocence. The exception on which he relies is known as the
Schlup “actual innocence” exception, named after the case of
Schlup v. Delo, 513 U.S. 298, 315 (1995). We hold that
because prosecutorial misconduct in connection with his fed-
eral habeas proceedings seriously interfered with Smith’s
ability to make the necessary showing under Schlup, and
because the resultant harm cannot be effectively remedied by
less intrusive means, the exculpatory testimony withheld from
the court as a result of the state’s actions must be presumed
to be true. We deem the exculpatory statements to be truthful,
                           SMITH v. BALDWIN                          17731
however, only for the purpose of determining whether
Smith’s contentions are sufficient to excuse any procedural
default that may have occurred; we do not consider here what
remedy would be appropriate with respect to his subsequent
efforts to establish any claim on the merits that might entitle
him to relief, including any claim of actual innocence.

   In short, we conclude only that, affording the disputed wit-
ness statements the benefit of the presumption of truthfulness,
Smith satisfies the Schlup “actual innocence” standard for
overcoming a procedural default of his claims insofar as they
relate to his felony murder conviction, and nothing more. As
we explain below, Schlup is satisfied here, and thus Smith is
entitled to proceed with his constitutional claims, not simply
because the evidence at this point would likely preclude any
reasonable juror from determining that he was the actual
killer, but because that evidence would more likely than not
cause any such juror to conclude that he had established, by
a preponderance of the evidence, an affirmative defense to the
felony murder charge under Oregon law. Accordingly, we
reverse the district court and remand so that Smith may be
afforded a hearing on the merits of his constitutional claims.1

                                    II.

  On April 3, 1989, two young men, Smith and Jacob
Edmonds, burglarized and robbed the home of Emmett and
Elma Konzelman. A third man, Marlin Bouse, drove with
  1
    On the basis of the oral argument and briefs submitted to this court, we
construe Smith’s appeal as challenging the procedural default of his claims
only with respect to his felony murder conviction and not with respect to
his robbery conviction. Therefore, a Schlup showing of “actual innocence”
as to the felony murder charge will suffice to overcome the challenged
procedural default with respect to that conviction and will allow Smith to
proceed on the merits of the claims relevant to that charge only. Smith
offers no facts or arguments that would support a claim of actual inno-
cence of the robbery offense or would otherwise excuse his procedural
default as to that conviction. Thus, the robbery conviction stands.
17732                      SMITH v. BALDWIN
them to the Konzelmans’ home, but decided not to participate
further in the criminal activity after initially entering the
garage. Although there was no indication that the two who
entered the house itself had planned to injure anyone, one of
them, when out of the presence of the other, attacked the Kon-
zelmans in their bedroom and bludgeoned Mr. Konzelman to
death. Mrs. Konzelman, who survived the assault, told police
that only one of the burglars had attacked the couple and that
no one else entered the room at that time or saw the killing.
There is no dispute that either Smith or Edmonds alone com-
mitted the murder. The ultimate question is which one.

   There is substantial evidence in the record to suggest that
Edmonds murdered Mr. Konzelman and that he committed
the killing outside of Smith’s presence and without any
advance knowledge on Smith’s part that he would engage in
any violent conduct or that he possessed a dangerous or
deadly weapon. The blood on the getaway truck and Mrs.
Konzelman’s recollection of the killer’s attire, for instance,
point to Edmonds as the killer.2 However, as part of a deal
with the prosecutor, Edmonds named Smith as the murderer
in return for the dismissal of his murder charges. The condi-
tions of the plea agreement required Edmonds to pass a poly-
graph examination showing that all of his allegations were
truthful and to give a complete statement memorializing his
accusation against Smith. In return, the state agreed to recom-
mend concurrent sentences with a minimum of 43 months on
the two robbery counts to which he pled.3

  After learning that he would be prosecuted for capital mur-
der and that Edmonds was going to testify against him, Smith,
  2
     The evidence suggesting Edmonds was the person responsible for the
killing will be explored in more detail in the “actual innocence” section
of the opinion. See infra Part IV.A.
   3
     Although the record regarding Edmonds’s actual sentence is not clear,
it appears from his subsequent criminal record that his actual sentence
may have been substantially less than the purported recommendation.
                        SMITH v. BALDWIN                   17733
who had continuously asserted his innocence, pled no contest
to robbery and felony murder. In return, he received a life
sentence with a minimum term of 30 years. Although Smith
pled no contest to the lesser charge of felony murder, the trial
judge explained that he was enhancing Smith’s sentence
because he believed that Smith was the one who had commit-
ted the killing, even though the evidence was far from clear
on this point. After the plea, Smith filed a direct appeal, which
the Oregon Court of Appeals and the Oregon Supreme Court
denied without opinion.

   Smith then filed a petition for post-conviction relief in state
court, setting forth claims that (1) his trial counsel was consti-
tutionally ineffective because his lawyer coerced his plea
agreement without advising him of or pursuing an affirmative
defense to felony murder; (2) his due process rights were
denied when Edmonds’s plea bargain wrongfully implicated
him; and (3) his due process rights were violated because the
effect of his medication and his trial counsel’s coercion ren-
dered his no contest plea unknowing and involuntary. The
state post-conviction judge denied Smith’s request to appoint
new counsel and ruled against him on the merits.

   New counsel was appointed on appeal, but Smith did not
appeal the denial of his post-conviction claims and argued
only that replacement counsel should have been appointed at
his first post-conviction hearing. The Oregon Court of
Appeals affirmed without opinion and the Oregon Supreme
Court denied review. As a result of this appeal, Smith never
presented his substantive post-conviction claims to the state
supreme court and they remain unexhausted.

   In a notarized statement to the district attorney seven years
after the incident and two years after the Oregon Supreme
Court’s denial of review, Edmonds recanted his earlier testi-
mony against Smith, implicitly acknowledging that he had
murdered Mr. Konzelman. Edmonds explained that although
he “stated in a sworn statement that Roger Smith . . . had in
17734                  SMITH v. BALDWIN
fact bludgeoned Emmit Konzleman [sic] to death,” he wanted
“for the record [to] retract that statement. Roger Smith did not
kill Emmit Konzleman [sic].” He then confessed to commit-
ting perjury in his statement against Smith and explained that
“the only way for me to set the record straight is to write this
confession now.”

   Based on Edmonds’s recantation, Smith again requested
post-conviction relief in state court. Smith’s second petition
asserted that Edmonds’s 1996 recantation was new evidence
that exculpated him and that his due process rights were vio-
lated both when the differences between aggravated murder
and felony murder were not explained to him at the time of
his plea and when the court failed to provide him with an ade-
quate explanation of the charges against him, given that he
was on drugs and of below-average intelligence. The court,
however, granted summary judgment for the state, concluding
that “post-conviction is not the for[u]m to — won’t allow this
relief here on newly discovered evidence.” Smith appealed
but grew frustrated with his attorney and with the delay
caused by numerous extensions of time. As a result, he filed
a motion for voluntary dismissal, which the court granted.
Smith next turned his attention to the federal courts: In 1997,
Smith asserted four grounds for relief in a petition for federal
habeas corpus: (1) conviction obtained by a guilty plea which
was unlawfully induced and made neither voluntarily nor
intelligently; (2) denial of effective assistance of counsel dur-
ing the investigative and trial preparation stages; (3) denial of
effective assistance of counsel during the plea negotiation/
entry stage; (4) denial of effective assistance of counsel dur-
ing hearings before the trial court.

   Amidst the federal habeas proceedings, Edmonds again
recanted his statements against Smith in a sworn affidavit.
This time, Edmonds’s declaration even more strongly incul-
pated himself and exculpated Smith as the actual killer: “I
know that Mr. Smith did not bludgeon or otherwise strike Mr.
Konzleman [sic] and I know that Mr. Smith never entered the
                       SMITH v. BALDWIN                    17735
Konzleman’s [sic] bedroom, where the killing occurred.”
Edmonds also explained that “[a]s a part of my plea agree-
ment in the underlying case, I was required to take a poly-
graph concerning the murder and I was told that I neither
passed [n]or failed that test but that the results were inconclu-
sive.” By these statements, Edmonds largely discredited his
initial testimony, in which he had labeled Smith as the
attacker.

   On the basis of the second recantation by Edmonds, Smith
amended his petition adding two additional claims: (5) that he
is actually innocent of felony murder and his conviction vio-
lates his right to due process under the Fourteenth Amend-
ment and his right to be free from cruel and unusual
punishment under the Eighth Amendment; and (6) that his
federal due process rights were violated under Brady v. Mary-
land, 373 U.S. 83 (1963), when the prosecution made a deal
with the actual murderer and suppressed evidence tending to
exculpate Smith.

   After Smith added his new claims, the state for the first
time turned over a copy of Edmonds’s polygraph results from
1989, even though Smith’s trial counsel had specifically
requested the document before Smith’s plea. The 1989 poly-
graph examination consisted of a few questions, which
included whether Edmonds “st[ruck] either of the people in
the house on South Shore Drive” and whether he was “lying
about anyone else’s involvement in this event.” Edmonds
answered “no” to both questions. The evaluator concluded
that although “[i]t is the opinion of this examiner that . . .
Edmonds answered these questions in a truthful manner, . . .
the scoring on the Backster Zone Comparison Test Technique
is inconclusive.” Taking such test results into account in con-
sidering Edmonds’s plea agreement, Smith alleges, and the
state does not dispute, that Edmonds failed to satisfy the con-
ditions of his plea agreement. Furthermore, the document was
not produced for 14 years, even though it was timely
requested and contained exculpatory information.
17736                       SMITH v. BALDWIN
   Smith asserts that the state dramatically accelerated its
efforts to suppress exculpatory evidence during the pendency
of the federal habeas proceedings. The state threatened
Edmonds with the revocation of his guilty plea and the institu-
tion of capital murder charges if he insisted on testifying in
accordance with his recantations. At the same time, it made
Edmonds an offer of immunity with respect to perjury if he
would testify on behalf of the state and formally withdraw his
recent confessions. To be clear, the record shows that, as a
part of its attempt to deter Edmonds from testifying that Smith
was innocent, the state informed Edmonds and his newly
appointed counsel that if he persisted in recanting his testi-
mony against Smith, the state would seek the death penalty
against him. In response to these threats, Edmonds sent a let-
ter to the district judge informing him that he would invoke
his Fifth Amendment privilege if called to testify on Smith’s
behalf. In reply, Smith contended that the state was engaging
in prosecutorial misconduct intended to distort the factfinding
function of the court and that, if the court did not grant him
the requested habeas corpus relief, it should order an evidenti-
ary hearing at which the government should be compelled to
provide Edmonds with immunity.

   Almost two years later, the district court ruled that it was
unable to reach the merits of Smith’s claims. It held that the
claims were procedurally defaulted because of his failure to
exhaust them in state court.4 The district court also found that
   4
     The district court held that because it found all of Smith’s claims to be
procedurally defaulted, it did not need to address any of them on the mer-
its. In doing so, the district court failed to address the freestanding claim
of innocence asserted in Smith’s amended federal habeas petition, even
though it noted that innocence claims are not cognizable in Oregon courts.
Cf. Herrera v. Collins, 506 U.S. 390, 393 (1993) (in which petitioner
asserted a freestanding claim of actual innocence based on newly discov-
ered evidence and contended that his execution would therefore violate the
Fourteenth and Eighth Amendments). In his amended federal habeas peti-
tion, Smith, like Herrera, argued that he is actually innocent of felony
murder and that his conviction therefore violates the Fourteenth Amend-
                            SMITH v. BALDWIN                         17737
Smith did not establish either sufficient actual innocence or
cause and prejudice to excuse the defaults. It stated, however,
that “[a] logical inference” from Edmonds’s refusal to testify
in the manner desired by the state, even after the prosecu-
tion’s promise of immunity if he would do so, is that “if
Edmonds did testify truthfully, he would say that Smith did
not kill Emmitt [sic] Konzelman, and implicate himself as the
killer.” Nevertheless, it rejected Smith’s suggestion that
Edmonds be granted immunity under United States v.
Westerdahl, 945 F.2d 1083 (9th Cir. 1991), on the ground that
it could not “say that the government’s immunity decision
[wa]s so capricious as to constitute an intentional distortion of
the factfinding process that warrants judicial intervention.” It
then denied Smith’s request for an evidentiary hearing
because it believed that a hearing would be futile and would
serve no purpose given Edmonds’s refusal to testify — in

ment’s guarantee of due process and the Eighth Amendment’s prohibition
against cruel and unusual punishment. Smith appears, however, to have
intended to assert both a freestanding claim and the type of claim that
serves to excuse procedural default (a Schlup claim). See id. at 404-05
(distinguishing between the “colorable showing of actual innocence” that
is used to “seek excusal of a procedural error . . . [of] an independent con-
stitutional claim” and a “freestanding claim[ ] of actual innocence”).
   We need not decide now whether, as the magistrate judge concluded in
his Findings & Recommendations report, any freestanding (or “Herrera”)
claim is cognizable only in capital cases, see id. at 417 (assuming, for the
sake of argument, that “in a capital case a truly persuasive demonstration
of ‘actual innocence’ made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if there were
no state avenue open to process such a claim”); for the district court did
not adopt that ruling, but instead held, erroneously, that Smith’s freestand-
ing claim of actual innocence was procedurally barred. A freestanding
“actual innocence” claim, however, may not be procedurally defaulted.
Rather, this type of claim constitutes an exception to the procedural
default provisions. Moreover, in this case, there was, as noted earlier, no
way for Smith to bring the claim in state court. The district court should
have addressed the freestanding claim directly. Given the “extraordinarily
high” standard established in Herrera, however, see id., Smith’s prospects
for prevailing on that claim would appear to be minuscule at best.
17738                  SMITH v. BALDWIN
other words, that in the absence of Edmonds’s exculpatory
testimony (which the prosecution had advised Edmonds
would cause it to seek his execution), Smith would be unable
to overcome the procedural default. Smith now appeals the
district court’s procedural default rulings. We have jurisdic-
tion under 28 U.S.C. § 2253.

                              III.

   The petition in this case was filed after April 24, 1996, and
is therefore governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Woodford v.
Garceau, 538 U.S. 202, 210 (2003). An appellate court
reviews de novo the district court’s decision to deny a habeas
petition. Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir.
2003). This court also reviews de novo a district court’s deci-
sion to dismiss a habeas corpus petition for procedural
default. Manning v. Foster, 224 F.3d 1129, 1132 (9th Cir.
2000). The district court’s interpretation of AEDPA standards
governing the grant or denial of an evidentiary hearing is
reviewed de novo, Baja v. Ducharme, 187 F.3d 1075, 1077
(9th Cir. 1999), and its ultimate denial of an evidentiary hear-
ing, based on the AEDPA standards, is reviewed for abuse of
discretion, Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.
2004) (citing Lawson v. Borg, 60 F.3d 608, 611 (9th Cir.
1995)). An error of law is, however, an abuse of discretion.
Koon v. United States, 518 U.S. 81, 100 (1996) (citing Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). The
district court’s findings of fact are reviewed for clear error.
Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir. 1995).

                              IV.

   Although the district court stated that it questioned the ade-
quacy of Oregon’s post-conviction procedures if, as the state
post-conviction court held, newly discovered evidence of
actual innocence could not serve as a basis for post-conviction
relief in Oregon, it declined to decide whether those proce-
                           SMITH v. BALDWIN                          17739
dures were in fact inadequate because it concluded that Smith
could not, at least in the absence of Edmonds’s testimony,
establish that he was actually innocent. We, like the district
court, need not decide that question, although for an opposite
reason. We conclude that even if there is a default, Smith has,
given the procedural determinations we reach below, made
the requisite showing of actual innocence necessary to have
his claims heard on the merits.5

   [1] A state prisoner must normally exhaust his available
state remedies before a federal court may consider his petition
for a writ of habeas corpus. 28 U.S.C. § 2254(b); Rose v.
Lundy, 455 U.S. 509, 515 (1982). The Supreme Court has
held that if a “petitioner [has] failed to exhaust state remedies
and the court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred,”6 his claims
are procedurally defaulted for purposes of federal habeas
review. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
A petitioner can overcome procedural default and obtain fed-
eral review of the merits of his claims either by demonstrating
evidence of actual innocence sufficient to bring the defendant
within the “narrow class of cases . . . implicating a fundamen-
tal miscarriage of justice,” Schlup, 513 U.S. at 315 (quoting
McCleskey v. Zant, 499 U.S. 467, 494 (1991)) (internal quota-
tion marks omitted), or by making an “adequate showing of
cause and prejudice,” Strickler v. Greene, 527 U.S. 263, 282
(1999); see also Murray v. Carrier, 477 U.S. 478, 485 (1986).
Because we conclude that, in light of our procedural determi-
nations, Smith has made a showing of actual innocence suffi-
cient to overcome any procedural default with respect to all
  5
     For the same reason, we need not reach the question whether Smith
was denied a fair opportunity to present his federal constitutional claims
during the state post-conviction process.
   6
     In Smith’s case, he is no longer able to obtain state review of his
claims, given Oregon’s procedural bar regarding time limits for filing peti-
tions for post-conviction relief. See OR. REV. STAT. § 138.510 (2003).
17740                  SMITH v. BALDWIN
of his claims regarding his felony murder conviction, we find
it unnecessary to decide whether Smith could also make the
alternative showing of cause and prejudice with respect to
certain of them.

                              A.

   Smith’s procedural default on his constitutional claims will
be excused if he can “demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice,”
Coleman v. Thompson, 501 U.S. 722, 750 (1991), which
occurs when a “constitutional violation has probably resulted
in the conviction of one who is actually innocent” of the
offense that is the subject of the barred claim. Murray, 477
U.S. at 496; see also Schlup, 513 U.S. at 324. The Supreme
Court has described this showing of “actual innocence” as a
“gateway” that allows the court to consider otherwise proce-
durally defaulted claims of constitutional error. See Schlup,
513 U.S. at 315-16 (1995). A Schlup “actual innocence”
inquiry is subject to a less stringent standard than a substan-
tive “actual innocence” claim. See Carriger v. Stewart, 132
F.3d 463, 476 (9th Cir. 1997) (en banc) (suggesting that “a
habeas petitioner asserting a freestanding innocence claim
must go beyond demonstrating doubt about his guilt, and
must affirmatively prove that he is probably innocent”). This
is because passing through the Schlup gateway only permits
a federal court to review the underlying constitutional claims;
Schlup does not entitle a defendant to a declaration of actual
innocence or to any relief outright. Under Schlup, “a peti-
tioner must show that it is more likely than not that no reason-
able juror would have found [him] guilty beyond a reasonable
doubt.” Schlup, 513 U.S. at 327. In determining whether this
showing has been met, the habeas court may consider “all the
evidence,” including evidence excluded at trial, admitted ille-
gally, or available only after the trial. Id. at 328. To pass
through the procedural gateway, Smith does not need to
“show that he is ‘actually innocent’ of the crime he was con-
victed of committing; instead, he must show that ‘a court can-
                           SMITH v. BALDWIN                        17741
not have confidence in the outcome of the trial.’ ” Majoy v.
Roe, 296 F.3d 770, 776 (9th Cir. 2002) (quoting Schlup, 513
U.S. at 316). Although here the conviction was upon a plea
of guilty rather than a jury verdict, the inquiry is the same in
either case: can we have confidence that the petitioner com-
mitted the offense of which he was convicted?

   The Supreme Court recently reaffirmed the viability of the
Schlup “actual innocence” gateway in House v. Bell, 126
S. Ct. 2064 (2006). In House, the Court emphasized that “the
Schlup standard does not require absolute certainty about the
petitioner’s guilt or innocence,” but rather requires only that
a petitioner demonstrate that it is “more likely than not any
reasonable juror would have reasonable doubt” regarding his
guilt. Id. at 2077. In doing so, the Court also rejected any sug-
gestion that AEDPA “ha[d] replaced the Schlup standard with
a stricter test,” id. at 2078, holding instead that AEDPA’s
standard of review is inapplicable to “a first federal habeas
petition seeking consideration of defaulted claims based on a
showing of actual innocence,” id.

   [2] The state charged Smith with felony murder because he
committed a burglary and a robbery, and a killing occurred
during the commission of those acts.7 Oregon allows a defen-
dant to prove an affirmative defense to establish innocence of
felony murder. OR. REV. STAT. § 163.115(3) (2003). Smith
satisfies Schlup’s actual innocence requirement if he shows
that it is more likely than not that any reasonable juror would
have had a reasonable doubt as to his guilt in light of the evi-
dence in the district court record, including Edmonds’s affida-
vits, supporting his affirmative defense. See Jaramillo v.
  7
   Bousley v. United States, 523 U.S. 614 (1998), also requires Smith to
prove his Schlup claim with regard to the aggravated murder charge fore-
gone by the state as a result of the plea agreement. See id. at 624. Here,
a determination that we cannot have confidence in his felony murder con-
viction would necessarily imply the same finding of “actual innocence”
with regard to the more serious crimes foregone by the state.
17742                  SMITH v. BALDWIN
Stewart, 340 F.3d 877, 883 (9th Cir. 2003) (demonstrating use
of affirmative defense for Schlup’s “actual innocence” analy-
sis). At trial, Smith would have been required to prove his
affirmative defense only by a preponderance of the evidence.
See State v. Counts, 311 Or. 616, 622 (1991). Therefore, to
pass through the Schlup “gateway,” Smith must demonstrate
only that it is more likely than not that no reasonable juror
would have found that he had failed to establish the elements
of the affirmative defense by a preponderance of the evidence.

 [3] In order to establish an affirmative defense to felony
murder, Smith must show that he:

    (a) Was not the only participant in the underlying
    crime;

    (b) Did not commit the homicidal act or in any way
    solicit, request, command, importune, cause or aid in
    the commission thereof;

    (c) Was not armed with a dangerous or deadly
    weapon;

    (d) Had no reasonable ground to believe that any
    other participant was armed with a dangerous or
    deadly weapon; and

    (e) Had no reasonable ground to believe that any
    other participant intended to engage in conduct
    likely to result in death.

§ 163.115(3). The state does not dispute that Smith has estab-
lished the first element. The disagreement is over the last four.
As we explain below, because the prosecutor’s misconduct
deprived Smith of the benefit of Edmonds’s testimony, we
presume Edmonds’s affidavits to be true for purposes of
determining whether Smith is procedurally barred from pro-
ceeding in federal court. Affording that presumption to
                            SMITH v. BALDWIN                         17743
Edmonds’s recantations, we conclude that Smith has pre-
sented sufficient evidence to make it more likely than not that
any reasonable juror would conclude that he has satisfied all
five elements of the affirmative defense to felony murder by
a preponderance of the evidence, and that he is “actually inno-
cent” for purposes of Schlup. Thus, Smith may present his
substantive habeas claims in the district court.

   [4] As to the second element, the evidence demonstrates
that it is more likely than not that no reasonable juror would
have found that Smith killed Konzelman. Edmonds’s recanta-
tions confessing that Smith did not kill Konzelman, which we
presume to be true for purposes of this analysis, combined
with the testimony of Mrs. Konzelman, which corroborates
such recantations in more than one respect, the testimony of
Bouse, and the physical evidence lead to the conclusion that
Edmonds, and not Smith, was the killer.8 Although Edmonds
  8
    The fact that, just three years after the date of his plea agreement,
Edmonds committed a residential burglary, kidnapping, and rape, also
tends to support the conclusion that Edmonds, not Smith, was the killer in
the instant case. Of course, if Edmonds were on trial, the introduction of
this “bad act” evidence to prove his guilt would be unfair to him and
would almost certainly violate the Federal Rules of Evidence. This habeas
proceeding, however, concerns Smith, not Edmonds, and ignoring this evi-
dence would prejudice Smith in his effort to prove his innocence. On
habeas review under AEDPA, we may consider such evidence, which was
“unavailable at [Smith’s] trial,” without regard to “the rules of admissibil-
ity that would govern at a trial.” Schlup, 513 U.S. at 327-28 (expressly
permitting consideration of evidence that was “excluded” or “alleged to
have been illegally admitted”).
   The dissent cites Old Chief v. United States, 519 U.S. 172, 180-82
(1997), to warn against the dangers of propensity evidence. Dis. op. at
17785-86 n.17. Old Chief, however, describes “bad act” evidence as “rele-
vant,” “logically . . . persuasive,” and “probative.” 519 U.S. at 180-81
(quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (Breyer,
J.); Michelson v. United States, 335 U.S. 469, 475-76 (1948)). It then
explains that this relevant, probative evidence is nonetheless excluded at
trial when offered against a criminal defendant because it is highly preju-
dicial and its admission would create a risk that the defendant could be
convicted on less than evidence beyond a reasonable doubt. Id. at 180-82.
Because there is no such risk to any person in this case, consideration of
Edmonds’s bad acts is not only permitted under Schlup, but also makes
sense under the rationale of Old Chief.
17744                       SMITH v. BALDWIN
has never explicitly confessed that he committed the murder,
he has twice sworn that Smith did not kill Konzelman. In his
latest affidavit, he said that Smith neither struck Konzelman
nor “entered the Konzleman’s [sic] bedroom, where the kill-
ing occurred.”9 Given Mrs. Konzelman’s testimony that the
attacker who struck her husband was the only attacker in the
bedroom at the time — as the other burglar stood in the door-
way briefly and then continued down the hall — the only rea-
sonable inference to be drawn, assuming Edmonds’s affidavit
to be credible, is that Edmonds was the killer. Even the state
acknowledged this inference when it stated that “Edmonds
has implicitly admitted that he, rather than [Smith], was the
killer, [even though] he has never directly admitted as much.”

   Further, Edmonds’s initial account of the murder implicat-
ing Smith must be viewed with considerable skepticism, even
aside from the presumption of truthfulness we afford his sub-
sequent recantations. Edmonds failed to pass the polygraph
examination required as part of his plea bargain,10 and the
  9
    The dissent argues that Edmonds’s affidavits are “internally inconsis-
tent and plainly inconsistent with each other.” Dis. op. at 17793. The lan-
guage cited by the dissent is taken out of context. Edmonds stated in his
first recantation — after stating explicitly that he had committed perjury,
that Smith did not kill Konzelman, and that he was attempting to “set the
record straight” — that “[t]he reason [he] lied under oath was because
[his] attorney . . . led [him] to believe that Roger Smith was about to tes-
tify and leave [him] to do a life sentence for a crime he did not commit.”
Given the unequivocal nature of every other statement relating to guilt in
the affidavit, this confusing statement could have resulted either from
Edmonds’s characterization of his defense attorney’s advice or the fact
that he swore out his first affidavit without the benefit of an attorney’s
supervision to help him clarify his statements. In contrast to his first recan-
tation, Edmonds’s second recantation does not contain any such confusing
language and even includes a statement that is likely a more accurate char-
acterization of the allegedly inconsistent statement in his first recantation:
“I was motivated to falsely implicate Mr. Smith because my trial attorney
and others counseled that, by doing so, I could avoid prosecution for mur-
der or aggravated murder.”
   10
      Even though polygraph evidence may not be admissible at trial under
Oregon law, we may consider this evidence under Schlup. Schlup, 513
U.S. at 328.
                           SMITH v. BALDWIN                         17745
consideration he received in exchange for placing the blame
on Smith was substantial. That consideration, the district
judge observed, “arguably gave him incentive to lie.” More-
over, the mere fact of a subsequent confession in itself raises
doubt. The state points to a few instances in which Edmonds’s
initial story is corroborated. While it is true that Edmonds
may have been able to describe how he avoided the newspa-
per delivery person while in the garage or how he and Smith
went to Smith’s parents’ house shortly after the incident, these
descriptions show only that he was present when the crime
occurred and are irrelevant to the question whether he or
Smith committed the murder in the Konzelmans’ bedroom.11

   The physical evidence of blood near Edmonds’s area in and
on the truck provides strong support for the conclusion that he
was the killer. It is clear from the record that Edmonds was
the person who actually drove the truck away from the crime
scene. The state crime lab found blood only on the areas of
the truck that Edmonds, as the driver, would have touched:
“the left front part of the hood, the front part of the driver
door, the back part of the driver’s door and the ignition area
on the interior of the vehicle.” As it is apparent from the
record that the scene was quite bloody, the magistrate judge
speculated that the blood on the vehicle could be explained by
the fact that Edmonds, as he told his jail cellmate, “may have
helped wipe down the bloody crowbar.” Particularly in light
of his recantations, such statements by Edmonds lack credibili-
ty;12 had he only helped to wipe down the tire iron, that would
   11
      Further, the details about the actual murder that Edmonds was able to
provide could best be explained by the fact that he was the attacker and
therefore would have known the details of what occurred in the bedroom.
A conclusion that the second, non-attacking burglar could provide such
corroborated details of the murder would conflict with Mrs. Konzelman’s
statement that she could only catch a “brief glimpse” of the second burglar
“as he went down the hall.” Thus, it is doubtful that Edmonds would have
known the details of the attacker’s interaction with the Konzelmans in the
bedroom unless he had been there for the duration, and not just passing
by — in other words, unless he was the actual attacker.
   12
      The dissent contends that Edmonds’s statements to his cellmate Sam-
uel Seaman were consistent with the statements that Edmonds gave to
17746                      SMITH v. BALDWIN
not explain why all of the blood ended up in his area of the
truck.

   Mrs. Konzelman’s testimony regarding the attire of the
man who attacked her husband also tends to support the con-
clusion that Edmonds was the killer. First, Mrs. Konzelman
told police that the killer had a skull or stocking cap covering
his head. On the night of the incident, Smith wore a hat with
a brim, possibly the fedora-style hat that was found outside
the Konzelmans’ house. Edmonds described Smith’s hat as
“floppy” with “a brim all the way around it”; he called it an
“old man hat,” an “old gangster hat,” or a “golf hat.” A
fedora, or one of the hats Edmonds described, would have had
some sort of brim that distinguished it from the hat Mrs. Kon-
zelman described. Indeed, Mrs. Konzelman specifically noted
that the attacker wore a different type of hat from the fedora
found near the Konzelman home. Edmonds stated that he
wore a baseball cap which, worn backwards, could easily be
seen as resembling a skull or stocking cap.

   Second, Mrs. Konzelman testified that the attacker was
wearing a light-colored jacket, which, because the tags were
showing, appeared to be turned inside out. Refuting the state’s
suggestion that Smith wore a jacket with fleece lining during
the crime, Marlin Bouse — the co-defendant who abandoned
the burglary after he, Edmonds, and Smith initially entered
the Konzelman’s garage — testified that Edmonds wore a
jacket while Smith wore a sweatshirt, which Bouse believed
to be red.13 Bouse further testified that Edmonds and Smith
did not change clothing at any point during the night.

police and therefore support the argument that Smith was the killer. Dis.
op. at 17776. It should be noted, however, that Seaman was also skeptical
of Edmonds’s story and told officers that “the way [Edmonds] talk[ed]
about it [was as if] he [was] trying to cover up for himself.”
   13
      Edmonds testified at Smith’s sentencing hearing that when they got to
the Konzelmans’, it was he, and not Smith, who had been wearing a Levi’s
jacket with a white lining.
                        SMITH v. BALDWIN                     17747
Edmonds originally tried to evade responsibility for the
jacket, but the police found his Levi’s jacket, which had a
fleece or wool lining, in the possession of his girlfriend.
Although Edmonds asserted, after earlier telling authorities
otherwise, that he had loaned his Levi’s jacket to Smith, the
magistrate judge who conducted the factfinding was highly
skeptical of this claim, noting that Edmonds had confided in
a friend that he had lent his jacket to Smith “in an effort to
place [Smith] in that jacket.”

   Third, Mrs. Konzelman testified that she did not notice
gloves on the attacker. As the dissent notes, “it is not entirely
clear who wore which gloves.” Dis. op. at 17774. Edmonds
testified that he wore white latex surgical gloves while Smith
wore two black leather gloves; Smith agreed that Edmonds
wore latex gloves but claimed that he, Smith, wore either one
or two brown leather gloves. No matter whose account is
more credible, though, Mrs. Konzelman would have been
much more likely to fail to notice translucent latex gloves
than either brown or black opaque leather gloves — particu-
larly on a white attacker — which tends to support the conclu-
sion that Edmonds was the killer.

   Contrary to the state’s contentions and the magistrate
judge’s findings, the remaining evidence does not support the
claim that Smith was the killer. For example, simply because
black jeans were recovered from Smith’s house and Mrs.
Konzelman stated that the killer wore dark or black pants, it
does not follow that Smith wore black jeans on the night of
the burglary or that Smith was the killer.14 Indeed, there is
nothing unusual about having a pair of dark jeans in one’s
house. Moreover, contrary to the magistrate judge’s conten-
tion, the code names — “High” and “Low” — attributed to
Smith and Edmonds do not demonstrate that Smith was the
killer. Mrs. Konzelman told police that the voice of the person
  14
    Mrs. Konzelman also stated in her interview with police that she
believed the pants were more like dress pants, not jeans.
17748                      SMITH v. BALDWIN
yelling “Low” into the phone in the other room was probably
not the voice of the killer. It is true that at one point Edmonds
claimed that his code name was “High”; therefore, the magis-
trate judge reasoned that it must have been Edmonds who cal-
led out “Low” to Smith. But Edmonds’s claim that he was
“High” should be viewed with skepticism, given his later tes-
timony at the sentencing hearing that he could not “recall
what the code was” and the fact that he responded affirma-
tively to the question whether his code name was “High” and
Smith’s “Low” only after being told about Mrs. Konzelman’s
statement. Furthermore, while maintaining that the person
who jerked out the telephone cord was the same person whom
she had heard yelling into the phone, Mrs. Konzelman told
detectives in a later interview that the person who jerked out
the telephone cord was the same person whom she had seen
hit her husband. Such statements would seem to contradict her
earlier statements that the person yelling into the phone was
not the attacker. Any evidence regarding the use of code
names appears inconclusive with respect to the identity of her
husband’s assailant.15

   Finally, if Edmonds’s recantations are deemed credible, as
we presume them to be, his initial testimony is necessarily
false to the extent that it points to Smith and not himself as
the actual killer, and lacks any force in countering the other
available evidence.16 Assuming Edmonds’s recantations to be
  15
      Like the dissent, we understand that Mrs. Konzelman was confused
during parts of her testimony. Nevertheless, certain parts of her testimony
are clear and unequivocally point to Edmonds, not Smith, as the attacker.
   16
      The dissent criticizes us for crediting Edmonds’s statements only
when it is convenient. See dis. op. at 17792-93. To the extent that
Edmonds has recanted his earlier testimony that Smith was the actual
attacker, it is true that we have deemed the earlier testimony not credible
and his later testimony truthful. Such a conclusion does not preclude us
from evaluating other testimony given by Edmonds — such as what the
two of them were wearing on the night of the murder, or where they were
with respect to one another once inside the house — and the extent to
which a jury would be likely to find such testimony credible, in light of
                            SMITH v. BALDWIN                         17749
credible, the available evidence shows that it is more likely
than not that no reasonable juror would have found that the
second element of the affirmative defense — that Smith was
not the actual killer — had not been established.

   [5] As to the third factor of the affirmative defense —
whether Smith was armed with a dangerous or deadly weapon
— there is no evidence to suggest that anyone other than the
killer was so armed. Because the evidence discussed above
demonstrates that it is more likely than not that every reason-
able juror would find that Edmonds was the only person
inside the Konzelmans’ bedroom17 and was the actual killer,
it logically follows that it is more likely than not that Smith
was not armed and that no reasonable juror would have found
to the contrary.

   The dissent argues that Smith cannot satisfy this element of
the affirmative defense because he admitted to carrying a rope
into the Konzelman residence. Dis. op. at 17800-17801,
17808-17809. This argument is concocted out of whole hemp
by our creative dissenting colleague. The state wisely does not
contend that the rope was a dangerous or deadly weapon; nor
does Oregon law support such a contention. Under Oregon
law, a “dangerous weapon” is defined as “any weapon,

the other available evidence. Further, because Edmonds’s various descrip-
tions of the incident — as provided by his testimony and prior to his
recantations — are not always consistent, any factfinder would be forced
to choose the elements of his story that it found credible and those that it
did not; the dissent’s suggestion that we must either afford full credibility
to his testimony or none at all creates an unreasonable and unrealistic
choice.
   17
      Because a rope was found just to the “left of the bedroom door,”
Smith likely dropped the rope when he paused briefly in the bedroom
doorway and before he continued down the hall. Therefore, the fact that
Smith was carrying the rope does not mean that he entered the Konzel-
mans’ bedroom and can be reconciled with both Mrs. Konzelman’s recol-
lection that only the attacker was in the bedroom and Edmonds’s second
recantation, in which he stated that Smith never entered the bedroom.
17750                  SMITH v. BALDWIN
device, instrument, material or substance which under the cir-
cumstances in which it is used, attempted to be used or threat-
ened to be used, is readily capable of causing death or serious
physical injury” and a “deadly weapon” is defined as “any
instrument, article or substance specifically designed for and
presently capable of causing death or serious physical injury.”
OR. REV. STAT. §§ 161.015(1) & (2) (2003). There is no evi-
dence suggesting that the rope in this case qualified under
either of these provisions. Certainly it was not “specifically
designed” for the purpose of causing death or serious physical
injury. Nor does any evidence in the record suggest that the
rope was “used” or “attempted to be used” during the com-
mission of the offense — Mrs. Konzelman testified that she
first saw the rope when she got out of bed after the attack was
complete, and after waiting a period to make sure that the
intruders were gone from the house. Finally, there is no evi-
dence suggesting that either intruder “threatened” to use the
rope, let alone threatened to use it in a manner “readily capa-
ble of causing death or serious physical injury.” Indeed, Mrs.
Konzelman unequivocally denied that any threats were made
in the following exchange with the detectives:

    Q: There was something mentioned about a rope.

    A: There was a rope there on the floor, but I didn’t
    see them. They didn’t do anything with it.

    Q: OK. Did he, did he threaten to tie you up or any-
    thing?

    A: No.

    Q: Did he say anything about he would, anything to
    you at all?

    A: Not that I can tell you.
                           SMITH v. BALDWIN                         17751
       Q: OK. There was, I thought that maybe some state-
       ments were made earlier about saying something
       about rolling you over so he could tie you up.

       A: No.

The record could not be any clearer on the question whether
the intruders used, attempted to use, or threatened to use the
rope — plainly, they did not.18

   Under Oregon law, the question whether an object is a dan-
gerous weapon turns entirely on the circumstances in which
it is used, attempted to be used, or threatened to be used. No
one doubts that, in certain circumstances, a rope can be used
to asphyxiate, and that when it is, it qualifies as a dangerous
weapon. This realization, however, is very different from con-
cluding that the rope in this case met Oregon’s definition of
a dangerous weapon. It most certainly did not. The cases the
dissent cites show how far off-the-mark its conclusion really
is. The dissent points to cases finding that a can opener, cow-
boy boots, or a concrete sidewalk can be a deadly weapon.
Again, it all depends on the circumstance — if used to stomp
someone to death, cowboy boots might meet the statutory def-
inition; if simply worn while engaged in a fatal fist fight, the
boots would not constitute a dangerous weapon. The issue of
the rope begins and ends with the fact that Smith did not use,
attempt to use, or threaten to use it in any way, let alone in
a way that might cause death or serious injury.
  18
     Still, the dissent cites State v. Cornell, 842 P.2d 394 (Or. 1992) (in
banc), as support for its conclusion that the rope Smith carried was a dan-
gerous weapon. In Cornell, the Oregon Supreme Court upheld the felony
murder conviction of a defendant who stuffed toilet paper into his victim’s
mouth and “hog-tied” him around the neck with a cord, which asphyxiated
him. Id. at 396. The opinion says not a word about whether a cord or rope
is a dangerous weapon — it had no need to, because the use of a danger-
ous weapon is not an element of felony murder in Oregon, only an element
of the affirmative defense. See OR. REV. STAT. § 163.115. The defendant
in Cornell, however, had not raised the affirmative defense, and thus the
court had no need to consider the question in that case.
17752                     SMITH v. BALDWIN
   The fourth element of the affirmative defense requires
Smith to show that he had “no reasonable ground to believe
that any other participant was armed with a dangerous or
deadly weapon.” The district court acknowledged that, at the
outset, Smith and Edmonds probably did not intend to kill the
Konzelmans. Otherwise, it concluded, “there would be no
need to disguise themselves [or] to speak in code names,
unless they expected the Konzelmans to survive the intrusion
and be capable of giving an account to the police.” Further,
the haphazard and unplanned nature of the burglary — during
which the burglars ran in and out of the house due to unex-
pected noises and left several items behind, including Mr.
Konzelman’s money and wallet — suggests, contrary to the
dissent’s assertions, see dis. op. at 17798-99, that the bur-
glars’ planning would not have included a debate as to
whether they should arm themselves or any discussion as to
who would carry the weapon, and that a juror would not be
likely to credit the pair with such an organized or detailed
level of planning.

    [6] It is not disputed that the crowbar came from some-
where in the Konzelmans’ garage. The state has never argued
that either Smith or Edmonds brought it with him and Mrs.
Konzelman testified that the crowbar used in the attack was
one that she and her husband used frequently and that they
kept in the garage. The district court opinion acknowledges
that “[b]oth the garage and the interior of the house were dark
when [Smith and Edmonds] entered, so Smith might not have
noticed if Edmonds was carrying a dark-colored crowbar.
. . . Indeed, Edmonds claimed he was unaware of the crowbar
until he first saw it in Smith’s hands in the bedroom.” The
district court’s subsequent observation that “[t]he converse
might also have been true, if Edmonds is reversing the roles,”
is supported by Edmonds’s recantations, which identify him
and not Smith as the actual attacker. Under those circum-
stances, it would have been Smith who was unaware that
Edmonds was armed.19 Furthermore, as the district court
  19
   Bouse testified that when the three first entered, Smith went into the
house while Edmonds searched the garage, and Edmonds testified that
                            SMITH v. BALDWIN                         17753
noted, the two men were in different parts of the house for
most of the time.20 The attacker apparently was not holding
the crowbar in plain view when the second intruder passed by
the room, as Mrs. Konzelman did not see anything in the
attacker’s hands until he picked the crowbar up from the
ground just prior to attacking her husband.21 Smith was not
present when Edmonds struck Konzelman, as evidenced by
Mrs. Konzelman’s statements about a lone attacker. Accord-
ing to Mrs. Konzelman, the second burglar “came from the
den, up through the hall, and stopped at the door long enough
for me to see his bandanna and headed out,”22 sometime
before Edmonds picked up the crowbar and struck the victim.
This version of events finds further support in Edmonds’s
more recent affidavit asserting that Smith never entered the
bedroom: “I know that Mr. Smith did not bludgeon or other-

during the time that he and Smith were both exploring the garage, they
were searching in separate parts of it. Therefore it is likely that Edmonds
found the crowbar without Smith’s knowledge.
   20
      Like much of the testimony provided, Edmonds’s testimony as to how
and when the two men entered the house is unclear. The accounts the dis-
sent refers to in which Edmonds suggested that he and Smith entered
together are far from precise. See dis. op. at 17803 n.44. Such accounts are
unclear as to whether the two entered at the same time, so that each could
observe what the other may have been holding, and do not suggest that
they kept track of one another’s whereabouts while in the house.
   21
      According to Edmonds’s initial testimony, he first saw the crowbar in
Smith’s hands when both he and Smith entered the Konzelmans’ bedroom
together. As noted supra, Edmonds’s version of the story, insofar as it
places Smith as the killer, is discredited by his subsequent recantations.
Further, although it is possible that Edmonds may have reversed his and
Smith’s roles in providing his original version of events, the fact that Mrs.
Konzelman — a neutral witness — “recalled the killer picking the crow-
bar off the floor before striking the blows” and that “he had not been car-
rying the crowbar around in his hand” suggests not only that Edmonds was
the one handling the weapon, but also that Smith was never aware that
Edmonds was armed, either before or after seeing Edmonds in the Konzel-
mans’ bedroom when he paused by the doorway.
   22
      Edmonds told a Linn County detective that both he and Smith wore
bandannas as masks.
17754                  SMITH v. BALDWIN
wise strike Mr. Konzleman [sic] and I know that Mr. Smith
never entered the Konzleman’s [sic] bedroom where the kill-
ing occurred.” In sum, the evidence as to precisely what
occurred in the garage and in the house is far from clear. As
with the third element, however, having decided that it is
more likely than not that Edmonds was the killer and thus the
person who found, carried, and used the crowbar, and assum-
ing the truthfulness of Edmonds’s recantations, we conclude,
although this issue is close, that any reasonable juror would
have determined that a preponderance of the evidence shows
that Smith had no reasonable ground to believe that Edmonds
had armed himself immediately prior to entering the house.

   The last element of the affirmative defense requires Smith
to show that it is more likely than not that he had no reason-
able ground to believe that Edmonds intended to engage in
conduct likely to result in death. As discussed supra, it is
more likely than not that Smith was not aware that Edmonds
had picked up a crowbar and was armed. The evidence sup-
porting that conclusion would also support the conclusion that
Smith had no reason to believe that Edmonds intended to do
anything other than burglarize the house. Edmonds himself
stated that prior to entering the house, there had never been
any discussion between him and Smith about hitting anyone
or using any kind of weapon on anyone. In a deposition,
Smith stated with respect to the killing of Mr. Konzelman that
“I didn’t know [Edmonds] was going to do it.”

   The district court never found that Edmonds and Smith
planned to engage in any violent conduct or even discussed
doing so. Rather, it reasoned that because Edmonds and Smith
were aware that the Konzelmans were home, they should each
have been aware that the robbery might result in confrontation
with the residents, and that they therefore each had reason to
believe that they would engage in conduct likely to result in
death. We disagree that a generic residential robbery is likely
to result in death — especially when there are no plans to
                            SMITH v. BALDWIN                           17755
engage in violent conduct and, to Smith’s knowledge, no
weapons on hand with which to do so.23

   [7] If the district court were correct in concluding that any
residential burglary is likely to result in death simply because
one can foresee a remote possibility of death occurring —
such as the possibility that a “resident might awaken startled,
and suffer a fatal heart attack” or that a “[f]atal accident[
might] occur when police or ambulance crews are racing to
the scene” — then the affirmative defense would be inappli-
cable in every case of felony murder. The district court’s rea-
soning would effectively foreclose the affirmative defense to
anyone who committed, or even attempted to commit, any of
the ten offenses that qualify for felony murder. See OR. REV.
STAT. § 163.115(1)(b) (2003). Additionally, the term “likely”
in Oregon’s affirmative defense to felony murder implies a
stronger possibility than a merely remote one.24 See, e.g., State
v. Watkins, 932 P.2d 107, 109 (Or. Ct. App. 1997) (in which
a victim’s death was deemed “a significantly greater harm
  23
    See Enmund v. Florida, 458 U.S. 782, 799-800 (1982) (noting that
“only about one-half of one percent of robberies result[ ] in homicide” and
that “killings only rarely occur during robberies”). Although Enmund’s
data are somewhat outdated, more recent data support our conclusion as
well. Using the same data source that the Supreme Court used in Enmund
(with updated data), and the same methodology, see Enmund, 458 U.S. at
800 n.24, data from 2005 show that less than one quarter of one percent
(0.22%) of all robberies result in homicides. See U.S. Dep’t of Justice,
Federal Bureau of Investigation, Crime in the United States 2005.
   The dissent opines that these statistics are not “sufficiently refined,” and
that the proper measure of risk is the probability that a burglary that
“might turn confrontational” will result in death. Dis. op. at 17808 n.52.
By definition, however, every robbery included in the FBI report — the
set of crimes to which the 0.22% figure applies — involves the use or
threat of force or violence or putting the victim in fear. See Crime in the
United States 2005. Burglaries, which are by definition less confronta-
tional, are not included in the Report’s statistics unless they turn into rob-
beries, such as in the crime involved in this case.
   24
      The district court conceded that “[t]he word likely does give some
pause,” but failed to require a stronger nexus than a theoretical possibility.
17756                       SMITH v. BALDWIN
than is typical for the crime of robbery” and the defendant
was acquitted of felony murder after raising the same affirma-
tive defense); cf. State v. Dickerson, 827 P.2d 1354, 1355 (Or.
Ct. App. 1992) (in which the defendant was found to have
reasonable grounds to believe another participant in the crime
intended to engage in conduct likely to result in death based
on conversations defendant had with other participants about
“how to handle the situation” and the decision to kill the vic-
tim “to ensure her silence”). Indeed, if the commission or
attempted commission of any of the listed felonies in section
163.115(1)(b) — which include arson, assault, and robbery —
automatically constituted conduct likely to result in death, one
would assume that Oregon would not have made the affirma-
tive defense available at all for such charges. Because it can-
not be assumed that generic robbery is likely to result in death
and the evidence in this case rebuts any claim that Smith had
reasonable cause to believe that this particular robbery was
likely to do so, Smith has more likely than not satisfied the
fifth and final element of the affirmative defense.25
  25
     In concluding otherwise, the dissent again cites State v. Cornell, 842
P.2d 394, in which the Oregon Supreme Court upheld the felony murder
conviction of a defendant who used a cord to “hog-tie” and asphyxiate his
victim. The dissent asserts that “a reasonable juror would very likely con-
clude that Smith brought the rope into the house with the contemplated
purpose of using it to restrain the victims” and argues that Cornell sup-
ports the conclusion that “[t]ying victims up is highly dangerous conduct
that is likely to result in death.” Dis. op. at 17808 (emphasis added).
Therefore, the argument goes, Smith must have known that death was
likely to result from his and Edmonds’s robbery. The dissent’s argument
fails on two levels. First, even if a reasonable juror did conclude that
Smith “contemplated” using the rope to restrain the Konzelmans, this is
a far cry from concluding that it was likely that he would restrain them.
Second, and more important, even if it was likely that Smith would
restrain the Konzelmans, this hardly means that it was likely that one of
them would die. Contrary to the dissent’s assertion, tying the hands, feet,
or even body of another person is not likely to result in death. The fact that
the defendant in Cornell tied his victim around the neck after stuffing toi-
let paper into his mouth, and that this extraordinary action caused death,
does not even come close to supporting the conclusion that Smith had rea-
son to believe that death was likely to ensue if he used the rope to restrain
the Konzelmans.
                       SMITH v. BALDWIN                    17757
   [8] In reaching the opposite conclusion, that it is not “more
likely than not” that a reasonable juror would find that all five
elements of the affirmative defense had been met, the dissent
makes the mistake of approaching the Schlup analysis exactly
as we stated it should not be applied in Carriger: “We do not
agree . . . that our test under Schlup is to decide how a hypo-
thetical jury would regard each bit of new evidence.” Car-
riger, 132 F.3d at 474 n.4. Instead, we held, under Schlup,
“[o]ur task is to determine whether confidence in the actual
verdict is undermined.” Id. The dissent misconstrues the
Schlup test, which ultimately requires only that Smith demon-
strate that it is more likely than not that any reasonable juror
would find that he had satisfied the elements of the affirma-
tive defense to felony murder by a preponderance of the evi-
dence — or, in other words, that there is a 51% or greater
chance that any reasonable juror would conclude that the
affirmative defense had been met in this case. Because an
analysis of all of the evidence now before the court — and
particularly Edmonds’s recantations — would more likely
than not lead any reasonable juror to believe that Smith was
not guilty of the crime of felony murder, we hold not that
Edmonds rather than Smith is the actual killer, but that Smith
has successfully passed through Schlup’s “actual innocence”
gateway and is entitled to a hearing on the merits of his con-
stitutional claims.

                               B.

   To the extent that our analysis relies on the truthfulness of
Edmonds’s recantations, there remains the question of his
credibility. Under other circumstances, we might remand for
an evidentiary hearing to allow the district court to assess the
trustworthiness of Edmonds’s more recent statements. See
Jaramillo, 340 F.3d at 883 (holding that new evidence pre-
sented by petitioner would, if credible, be sufficient to support
a finding of actual innocence and remanding for an evidenti-
ary hearing for the court to make the necessary credibility
determinations). The circumstances here, however, are not
17758                      SMITH v. BALDWIN
conducive to such a remand. In this case, due to the prosecu-
tion’s threats to pursue capital charges against him, Edmonds
has refused to testify, even after being promised immunity
from perjury (if he testifies as the prosecution wishes). The
facts regarding the prosecution’s conduct have all been estab-
lished in the record26 and, as the district court recognized, a
further hearing would serve no purpose.27 We must now con-
sider, then, whether the prosecution engaged in misconduct
that substantially interfered with Smith’s efforts to establish
his Schlup claim and, if so, what the remedy should be.

  1.    Prosecutorial Misconduct

   The prosecution effectively prevented Edmonds from testi-
fying by threatening to institute capital murder charges
against him — specifically, as the district court put it, to “seek
the death penalty” — if he testified in a manner that was con-
sistent with his two affidavits. The state also offered to immu-
nize him from perjury if he would withdraw his recantations
and testify that Smith was the killer. Due to the drastic nature
and the unusual character of the prosecution’s threats and,
  26
      The district court made the following findings: “The Linn County
prosecutor’s office . . . warned Edmond’s [sic] counsel that the district
attorney would seek the death penalty if Edmonds testified that he, and not
Smith, actually killed Emmett Konzelman. On the other hand, if Edmonds
withdrew that affidavit and testified that Smith was the killer, the State
agreed to give Edmonds immunity from charges of (allegedly) filing a
false affidavit. After conferring with his counsel, Edmonds refused to tes-
tify on the ground that the answers might incriminate him.”
   27
      The district court found that to hold an evidentiary hearing “would be
a pointless exercise so long as Edmonds refuses to testify.” Given that
Edmonds’s testimony would be relevant only to Smith’s claims of inno-
cence, it is most likely that the evidentiary hearing to which the district
court referred was an evidentiary hearing regarding actual innocence
under Schlup. A more limited hearing to determine only the credibility of
Edmonds’s exculpatory statements would be equally pointless. Edmonds
would have all the same reasons not to testify regardless of the scope of
the hearing, and without his testimony either future hearing would be of
no avail.
                           SMITH v. BALDWIN                         17759
specifically, due to the state’s declaration of its intentions to
subject him to the death penalty, Edmonds understandably
invoked his Fifth Amendment privilege and refused to testify
about any and all facts relating to the murder of Konzelman,
even — as the district court notes — after he received the
state’s offer of immunity if he testified against Smith. The
prejudicial effect of the state’s actions is starkly demonstrated
by the district court’s finding that “[a] logical inference” from
Edmonds’s refusal to testify in the manner the state desired,
even after the prosecution’s promise of immunity if he would
do so, is that “if Edmonds did testify truthfully, he would say
that Smith did not kill Emmitt [sic] Konzelman, and implicate
himself as the killer.”

   [9] Threatening a potential witness for the defense with
execution constitutes prosecutorial misconduct far more coer-
cive than that present in any reported case of which we are
aware. The cases in which courts have considered the prose-
cution’s threats to charge witnesses with perjury or other
criminal offenses, have all involved the possibility of far less
serious punishment. See, e.g., United States v. Vavages, 151
F.3d 1185, 1188, 1192 (9th Cir. 1998); United States v. Lord,
711 F.2d 887, 889, 892 (9th Cir. 1983); see also United States
v. Morrison, 535 F.2d 223, 225, 228-29 (3d Cir. 1976). Here,
the prosecution’s unprecedented threat to seek the death pen-
alty against Edmonds if he testified that Smith was not the
killer was unquestionably coercive and constituted substantial
interference with Edmonds’s decision whether to testify. Cf.
Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (“It is
well established that ‘substantial government interference
with a defense’s witness’s free and unhampered choice to tes-
tify amounts to a violation of due process.’ ”) (citing Vavages,
151 F.3d at 1188).28
  28
    We reject the dissent’s argument that the prosecution’s suggestion that
the court provide Edmonds with counsel demonstrates that it was not seek-
ing to silence him but to lay a foundation for prosecuting him. Dis. op. at
17783-84. Certainly the prosecution was aware that appointed defense
17760                       SMITH v. BALDWIN
   The dissent repeatedly insists that we should remand for an
evidentiary hearing on the question whether the prosecutor’s
misconduct was intentional. See, e.g., dis. op. at 17789. There
is no cause for such a hearing in this case. The “intent” to
which the dissent refers is the intent to cause a witness not to
testify in a particular manner or not to testify at all. See Lord,
711 F.2d at 891. The prosecution here intimidated Edmonds
into refusing to testify by making a threat of the gravest
nature, a threat that was clearly improper, especially given the
prosecution’s prior determination in Smith’s case that an
appropriate punishment for the actual killer was 30 years to
life. In cases in which the harassment, intimidation, or coer-
cion of a witness is evident, intent is not at issue; rather, the
issue under our prior cases has been whether the interference
was “substantial” and whether it affected the witness’s deci-
sion to testify.29 Cf. Williams v. Woodford, 384 F.3d 567, 601-

counsel would greatly aid its efforts to achieve its goal — appointed coun-
sel almost certainly would advise Edmonds that he would run a substantial
risk of receiving a capital sentence if he testified, consistent with his affi-
davits, that Smith was not the killer. Counsel might even advise Edmonds
that, as the dissent now argues, counsel’s appointment was a necessary
preliminary step to Edmonds’s execution.
   29
      In cases of threat or coercion, no separate and additional showing of
intent has been required. The prosecution’s affirmative acts — in this case,
the prosecution’s threat to seek the death penalty against Edmonds —
inherently demonstrate the requisite intent. See, e.g., Earp, 431 F.3d at
1168-71 (remanding not to determine prosecutorial intent, but only to
evaluate the credibility of affidavits alleging that the prosecutor had threat-
ened a potential defense witness); Vavages, 151 F.3d at 1187, 1190-93
(reversing a conviction without an evidentiary hearing where the prosecu-
tor threatened a potential defense witness with perjury charges and the
withdrawal of a plea agreement in an unrelated prosecution); Morrison,
535 F.2d at 225-29 (reversing a conviction without an evidentiary hearing
where the prosecutor made repeated threats and warnings to a potential
defense witness, culminating in a “highly intimidating personal inter-
view”). Cases in which the prosecution merely denies immunity to poten-
tial defense witnesses, by contrast, typically do require remand for
evidentiary hearings to determine prosecutorial intent. See, e.g., United
                           SMITH v. BALDWIN                          17761
02 (9th Cir. 2004) (“Undue prosecutorial interference in a
defense witness’s decision to testify arises when the prosecu-
tion intimidates or harasses the witness to discourage the wit-
ness from testifying, for example, by threatening the witness
with prosecution for perjury or other offenses. . . . The prose-
cution’s conduct must amount to a substantial interference
with the defense witness’s free and unhampered determina-
tion to testify before the conduct violates the defendant’s right
to due process.” ); Vavages, 151 F.3d at 1189 (“A defendant’s
constitutional rights are implicated only when the prosecutor
or trial judge employs coercive or intimidating language or
tactics that substantially interfere with a defense witness’[s]
decision whether to testify.”).30 In sum, our cases have

States v. Young, 86 F.3d 944, 946-49 (9th Cir. 1996) (remanding for an
evidentiary hearing on intent where the prosecution granted immunity or
favorable plea agreements to prosecution witnesses but withheld immunity
from a potential defense witness); United States v. Westerdahl, 945 F.2d
1083, 1087 (9th Cir. 1991) (same); Virgin Islands v. Smith, 615 F.2d 964,
969 (3d Cir. 1980) (remanding where the prosecution withheld immunity
from an important potential defense witness). Cases in which the record
of prosecutorial conduct is unclear may also require remand for clarifica-
tion. See, e.g., Lord, 711 F.2d at 891-92 (remanding for “further clarifica-
tion of the prosecutor’s pre-trial comments” to a potential defense
witness). There is no need for a remand here, however, as the prosecution
indisputably took affirmative steps to cause Edmonds not to testify in the
manner set forth in his affidavits.
   30
      The dissent argues that we cannot look to United States v. Vavages
because Smith cited instead our decision in United States v. Westerdahl,
and the two cases represent doctrines that are entirely distinct. Hence, the
dissent’s argument goes, Smith has waived his “Vavages argument.” We
disagree. Although the two cases admittedly put forth slightly different
doctrinal tests, they address precisely the same doctrinal issue: prosecu-
torial misconduct that materially affects a defendant’s opportunity to pre-
sent his case. Furthermore, the cases descend from the exact same doctri-
nal ancestor: Webb v. Texas, 409 U.S. 95 (1972). Indeed, the dissent itself
points out that Vavages stems directly from Webb, dis. op. at 17782; Vav-
ages also leans heavily on United States v. Morrison, a decision that found
Webb “control[ling],” 535 F.2d at 227. Westerdahl is simply a bit more
removed, relying primarily on United States v. Lord, which in turn relied
17762                       SMITH v. BALDWIN
ordered a remand only where necessary to make a showing of
intent, see Lord, 711 F.2d at 890; given the prosecutorial con-
duct involved, no such showing is required here.

   [10] It is evident that the prosecution’s threat to seek the
death penalty against Edmonds was intended to coerce
Edmonds into changing his testimony or refusing to testify.
“Where, under the totality of the circumstances, ‘the sub-
stance of what the prosecutor communicates to the witness is
a threat over and above what the record indicates is necessary,
and appropriate, the inference that the prosecutor sought to
coerce a witness into silence is strong.” Vavages, 151 F.3d at
1190 (quoting United States v. Pierce, 62 F.3d 818, 832 (6th
Cir. 1995)) (internal quotation marks omitted).31 The prosecu-
tion warned Edmonds that if he testified in a particular man-
ner — one that would be consistent with Smith’s defense —
it would attempt to have him executed. In contrast, it

on Morrison (which found Webb controlling). Once it is clear, as here, that
a defendant alleges prosecutorial misconduct that interferes with the pre-
sentation of his witnesses, we would be remiss to ignore certain prior deci-
sions of this court (e.g., Vavages) while focusing exclusively on others
(e.g., Westerdahl). Certainly, it would not be consistent with fundamental
concepts of justice to deprive an individual of a hearing on his constitu-
tional claims because he cited one rather than the other of two related
cases addressing the same basic issue.
   31
      In Vavages, a potential witness invoked her Fifth Amendment right
against self-incrimination based on the prosecution’s threats to charge her
with perjury and withdraw a plea agreement in an unrelated prosecution
if she testified for the defense. 151 F.3d at 1187-88. There, we held that
“[i]t [did] not require much of an interpretive gloss on the prosecutor’s
warning to conclude that unless [the defense witness] changed her testi-
mony or refused to testify at all, she would be prosecuted for perjury and
suffer any attendant consequences” and that “there [was] no question that
the prosecutor’s warnings were a ‘but for’ cause of [the witness’s] refusal
to testify,” thus constituting substantial interference. Id. at 1190-91. The
Vavages court held that the district court had “clearly erred in finding that
Vavages[ ] had not been prejudiced by the prosecutor’s substantial inter-
ference with [the witness’s] decision whether to testify and [therefore]
reverse[d] Vavages’[s] conviction and remand[ed] for retrial.” Id. at 1193.
                       SMITH v. BALDWIN                  17763
informed him that if he withdrew his recantations and testified
in accordance with its case against Smith, it would provide
him with immunity from perjury. Interestingly, the state did
not seek to prosecute Edmonds on the basis of his submission
of the affidavits exculpating Smith and inculpating himself; it
was only his testimony on behalf of Smith that, the state
declared, would provoke it to seek to execute him. There can
be no dispute that by constructing the options as it did, the
prosecution clearly intended to compel Edmonds either to tes-
tify in the manner that would favor its case against Smith or
not testify at all. Facing the possibility of a death sentence,
Edmonds did not have a realistic option to testify in accor-
dance with his previous recantations, even if — as the district
court inferred — those recantations were likely truthful.
Because it is clear that the prosecution’s threats intimidated
Edmonds into invoking his Fifth Amendment privilege, even
after he was offered immunity, we conclude that no further
hearing regarding intent is required and that the prosecution’s
interference constituted serious misconduct that denied Smith
a fair hearing on his Schlup claim. We therefore proceed to a
discussion of the appropriate remedy.

  2.   Remedy

   In determining what the remedy should be, we observe that
in all of the prior cases we have uncovered, the prosecutorial
misconduct affected the outcome of a trial to determine the
defendant’s guilt or innocence. The remedy we imposed in
those cases was to reverse or vacate the defendant’s convic-
tion. Here, by contrast, the underlying question is only
whether the federal courts should be permitted to hear a peti-
tioner’s constitutional claims on the merits. Because of that
difference, we approach the remedy differently. We may look
to our precedents regarding prosecutorial interference with an
actual trial for guidance, but those cases do not control this
appeal. The novel procedural posture of the case before us
permits us to remedy the prosecutorial misconduct by far less
drastic means.
17764                       SMITH v. BALDWIN
   As an initial matter, we cannot accept the dissent’s sugges-
tion to remand to the district court for an evidentiary hearing
on actual innocence under Schlup. Dis. op. at 17790-95. Such
a remedy would be both futile and ineffective, even were we
to require the state to grant Edmonds “use immunity” for his
testimony at that hearing.32 The district court found that hold-
ing a Schlup hearing would be a “pointless exercise” so long
as Edmonds refused to testify. See supra note 27. Although
use immunity sometimes serves to encourage defense wit-
nesses to testify after they have been deterred from testifying
previously, the present case is not the usual one. Death is
indeed different, and threatening to seek a witness’s execution
if he testifies in a manner that would exculpate the defendant
is fundamentally different from threatening to charge a wit-
ness with perjury or with some other less serious non-capital
offense.

   In this case, use immunity would not effectively counter the
threat of execution, as the state would be free to seek the
death penalty even if barred from relying on Edmonds’s testimo-
ny.33 If Edmonds did decide to testify, there would be no way
to ensure that the looming prosecutorial threat of execution
  32
      Use immunity provides that, “while the government may prosecute the
witness for an offense related to the subject matter of the witness’s testi-
mony, the testimony itself and any ‘fruits’ thereof may not be used against
the witness in any criminal case except a prosecution for perjury arising
out of the testimony.” Lord, 711 F.2d at 890.
   33
      If Smith’s conviction were reversed, the state could subpoena him and
compel him to testify, truthfully, that Edmonds and not he was the killer.
Edmonds certainly has reason to be concerned that Smith, once freed from
prison, might not be willing to accept the consequences of refusing to tes-
tify. It is also possible that the state could rely on the declarations against
interest contained in Edmonds’s affidavits as well as any statements that
a jailhouse informant might make. To be sure, it is not — as the dissent
asserts — Edmonds’s “eligib[ility] for renewed charges” that has pre-
vented him from testifying, dis. op. at 17785, but rather the state’s warning
that it would seek the death penalty if he testified. Use immunity would
provide no guarantee that the state would not succeed in carrying out its
threat.
                        SMITH v. BALDWIN                   17765
would not significantly influence his testimony. Without
assurances that he would not be facing capital charges as a
result of his testimony — assurances that use immunity would
not provide — Edmonds could not, in light of the prosecutor’s
threats, be expected to risk the imposition of a death sentence
by providing testimony exculpating Smith and inculpating
himself, regardless of its truthfulness. Any testimony that con-
tradicted his affidavits would be of doubtful reliability.

   We are faced with three alternatives, then, for remedying
prosecutorial misconduct in a case such as Smith’s, in which
the misconduct occurs at the Schlup stage and the petitioner
has presented affidavits from the witness regarding the facts
to which he would have testified had the state not caused him
to refuse to do so. First, we could issue the writ. Second, we
could prohibit the state from asserting the procedural bar that
blocks the petitioner from presenting the merits of his claims.
Third, we could afford the affidavits a presumption of truth-
fulness and consider the Schlup inquiry on that basis. On bal-
ance, we conclude that the third alternative — presuming
Edmonds’s recantations to be true for the limited purpose of
determining whether Smith may pass through the Schlup gate-
way — is the least intrusive on the state’s interests and most
consistent with the procedural posture of the case.

   In this regard, we emphasize that we are not here consider-
ing how a state must conduct a trial in its courts or how the
state courts must remedy instances of prosecutorial miscon-
duct; instead, we are determining whether a federal proceed-
ing has fairly afforded a petitioner his federal rights and what
remedy will best allow a federal court to fulfill its proper role.
We do so mindful that our remedy should be narrowly tai-
lored and as respectful of the state’s interests as possible.

   The first alternative — issuing the writ of habeas corpus —
would have the effect of requiring the state to retry Smith.
This is the usual remedy when the prosecutor’s misconduct
interferes with the defendant’s ability to present his defense
17766                  SMITH v. BALDWIN
at trial. In most instances of prosecutorial misconduct causing
defense witnesses to withhold testimony, this court has
reversed or vacated the defendant’s conviction. See, e.g., Vav-
ages, 151 F.3d at 1193; Young, 86 F.3d at 946; Westerdahl,
945 F.2d at 1088; Lord, 711 F.2d at 891-92. In the context of
a hearing to determine whether a prisoner should be precluded
from presenting his constitutional claims because of his fail-
ure to comply with procedural prerequisites, however, it is not
necessary to reverse the conviction or issue the writ; less con-
sequential and more appropriate remedies are available.

   The second alternative — prohibiting the state from assert-
ing the procedural bar — is far less intrusive on the state’s
interests. It would simply allow the federal proceedings to
continue. This remedy is better tailored than reversal to the
procedural posture of the case. It is, nevertheless, overbroad.
Such a remedy could turn prosecutorial misconduct into a
windfall by granting relief to petitioners who have suffered no
prejudice as a result of the prosecutor’s misconduct. The rem-
edy would allow any petitioner who was unable to present a
witness because of prosecutorial misconduct to overcome his
procedural default, even if the witness’s statements, along
with the rest of the evidence, would not be sufficient to meet
Schlup’s strict standard.

  We conclude that the third alternative — the more mea-
sured remedy of deeming Edmonds’s affidavits credible for
purposes of the Schlup determination — is clearly preferable.
Such a remedy provides relief only to a petitioner who has
been deprived of the opportunity to present testimony that, if
believed, would enable him to make the showing Schlup
requires. Such a resolution emphatically does not provide the
witness with immunity for a murder he may have committed.
Although our remedy may be different than those we have
applied in the past, it is because the procedural posture of this
case is different. Thus, the remedy is not “extraordinary,” dis.
op. at 17795. Indeed, given that neither we nor the district
court has yet considered the merits of the alleged constitu-
                            SMITH v. BALDWIN                          17767
tional violations, it would be far more extraordinary were we
to reverse Smith’s conviction and remand for retrial, see, e.g.,
Vavages, 151 F.3d at 1193, or reverse his conviction and
order acquittal if the state does not request use immunity, see,
e.g., Westerdahl, 945 F.2d at 1088.34 Here, we stop far short
of that drastic relief, holding merely that Edmonds’s affidavits
must be presumed to be true for purposes of the Schlup
inquiry. Even considering the consequences of the remedy we
apply — when Edmonds’s affidavits are presumed to be true,
Smith is able to pass through the Schlup gateway and present
the merits of his constitutional claims — our relief is far less
drastic than that afforded the defendants in our earlier cases.
In the end, Smith’s case will rise or fall on the validity of his
constitutional challenges. Only if he succeeds on the merits
will a writ issue and his case be returned to the state courts
for a new trial.35

   [11] Because the prosecution’s threat of a death sentence
was so coercive as to prevent Edmonds from testifying, and
because the state’s conduct has, at the very least, severely
tainted any testimony not exculpatory of Smith that Edmonds
might offer at a Schlup hearing, Edmonds’s affidavits must be
presumed to be credible, for purposes of resolving the ques-
  34
      In Westerdahl, we reversed the defendant’s conviction and remanded
to the district court. Because, unlike this case, it was unclear in Westerdahl
whether the prosecutor had acted with the intent to distort the factfinding
process, we instructed the district court to make that determination first.
We then directed the district court to acquit Westerdahl if it found intent,
unless the government requested use immunity for his witness. See
Westerdahl, 945 F.2d at 1088.
   35
      The dissent asserts that by adopting the third of the three remedial
alternatives we consider, we have merely chosen a “bulldozer” instead of
a “wrecking ball”; in other words, the dissent thinks that all of our consid-
ered alternatives are intrusive. Dis. op. at 17790 n.22. Surely, however,
permitting a petitioner to present his constitutional claims in federal court
bulldozes far less of the state’s efforts than reversing his conviction and
forcing the state to try its case a second time. The Westerdahl remedy,
which the dissent appears to prefer, entails the far more drastic latter con-
sequences. See Westerdahl, 945 F.2d at 1088.
17768                      SMITH v. BALDWIN
tion whether Smith’s procedural default should bar him from
presenting his habeas claims on the merits. On the basis of
that presumption, as well as the other available evidence,
Smith has made the requisite showing of actual innocence
necessary to proceed to a hearing on his constitutional claims.

                                   V.

   [12] We hold that Smith’s constitutional claims are not pro-
cedurally barred insofar as they relate to his felony murder
conviction. We reverse and remand to the district court for a
determination of those claims on the merits. Additionally,
because it never decided whether there should be an evidenti-
ary hearing to develop the factual basis of Smith’s constitu-
tional claims,36 we leave it to the district court to decide in the
first instance whether such a hearing should now be conducted.37

  REVERSED and REMANDED for further proceedings
consistent with this opinion.




  36
      The district court did not consider that question because it deemed
Smith’s claims procedurally barred and denied him an evidentiary hearing
on that basis.
   37
      As we mentioned earlier, the district court must rule on the Herrera
claim, although, as we also noted, that claim appears to have only a mini-
mal chance of success. See supra note 4.
                      SMITH v. BALDWIN                  17769
                                              Volume 2 of 2



BYBEE, Circuit Judge, dissenting:

   Roger Smith and Jacob Edmonds needed money. Bad. For
an Anthrax concert. So they burglarized the Konzelmans’
garage to obtain tools. They then put bandannas on their faces
to disguise themselves and made up code names. Smith took
a rope into the house. One of them took a three-foot-long
17770                  SMITH v. BALDWIN
crowbar as well and savagely beat the Konzelmans with it,
killing Mr. Konzelman and severely injuring Mrs. Konzel-
man. When Edmonds entered into a plea agreement and
agreed to testify against Smith, Smith pled no contest to fel-
ony murder. Edmonds now claims that Smith did not kill Mr.
Konzelman, and the majority, willing to believe him, thinks
that Smith is innocent. The problem is that Smith was con-
victed of felony murder. Even accepting every word of
Edmonds’s latest story as true—and there is good reason not
to—it is entirely irrelevant that “Edmonds, and not Smith,
was the killer,” or that “Smith did not kill Konzelman.” Maj.
Op. at 17743. Nonetheless, the majority, reviewing the record
afresh and construing all evidence in favor of Smith, con-
cludes that Smith is actually innocent because the evidence
“would more likely than not lead any reasonable juror to
believe that Smith was not guilty of the crime of felony mur-
der.” Id. at 17757.

   My view of the majority’s analysis of the evidence can per-
haps best be described by paraphrasing author Mary McCar-
thy: I disagree with nearly every word the majority has
written, including “and” and “the.” My profound disagree-
ment is not limited to the facts, but runs throughout the major-
ity opinion. I cannot agree that the prosecution engaged in
misconduct when it informed Edmonds, correctly, that he was
exposing himself to criminal liability by making statements
that Smith did not kill Mr. Konzelman. Even accepting,
arguendo, that this did constitute prosecutorial misconduct, I
see no justification for the presumption of truthfulness that the
majority affords Edmonds’s affidavits. The majority’s new-
found presumption is contrary to our prior cases, all of which
require that we remand to the district court for further findings
as to the prosecution’s motives. Yet, all of this is largely a
sideshow because even indulging the majority’s presumption,
the evidence in this case is still insufficient to qualify Smith
for Schlup v. Delo’s actual innocence gateway. See 513 U.S.
298, 314-15 (1995). Indeed, in the thousands of habeas cases
that have applied Schlup, I have been unable to locate a single
                           SMITH v. BALDWIN                        17771
case where a petitioner convicted of felony murder was able
to establish actual innocence. Not one. And there is no basis
for making this case the first. By all accounts, Smith was
present, gloved, disguised, and armed with at least a rope
when Mr. Konzelman was murdered in his home during the
burglary. There isn’t a jury in the country that wouldn’t con-
vict Smith today on a charge of felony murder. I therefore
respectfully, but vigorously, dissent.

                              I.   FACTS

   In the early morning hours of April 3, 1989, after consum-
ing methamphetamine, Roger Smith, Jacob Edmonds, and
Marlin “Hooter” Bouse1 decided to steal enough money or
property to purchase tickets to the Headbanger’s Ball in Port-
land the following night. The trio drove through various
neighborhoods in Edmonds’s truck, looking for a good target.
They ultimately seized on the residence of Emmett and Elma
Konzelman because the garage door was open.

   The trio parked Edmonds’s truck a few houses up the road
from the Konzelmans’ home, and all three entered the garage
to look for valuables. While the men were in the garage,
Smith leaned into the doorway connecting the garage to the
house. The door then slammed shut, and, scared that they had
awoken any inhabitants, the three took off running. At this
point, Bouse became separated from Edmonds and Smith.
Bouse took a beer, a hat, and a pair of gloves from the garage
and hid in the bushes near Edmonds’s truck. He did not see
Edmonds and Smith again until forty-five minutes later, when
they returned to the truck together.

  The exact events that transpired in those forty-five minutes
  1
    There is some ambiguity in the record as to whether Mr. Bouse’s first
name is “Arlen” or “Marlin.” The district and magistrate judges used the
former, and the majority and the state court sentencing transcript use the
latter. On this question, at least, I join the majority.
17772                      SMITH v. BALDWIN
are subject to conflicting accounts and inferences. What is
clear is that Edmonds and Smith burglarized the Konzelman
residence during this time, and that one of the two men took
a large crowbar from the Konzelman residence and savagely
attacked the elderly Konzelmans in their bed, killing eighty-
seven-year-old Emmett and severely injuring seventy-four-
year-old Elma.

   According to Elma Konzelman, she awoke to find two men
standing in her small bedroom. One was positioned in front
of her dresser, while the other stood in the doorway for a short
time before walking down the hallway. The man by the
dresser told her to roll over, and she woke Emmett, who
started to climb out of bed. The man by the dresser told
Emmett to “Lay down, old man,” and when Emmett did not
respond, the burglar proceeded to beat him with the crowbar.
He then beat Mrs. Konzelman in the head with the crowbar2
before resuming his bludgeoning of Mr. Konzelman.

   Understandably, Elma Konzelman’s description of events
is somewhat hazy. She could not recall at trial whether the
lights were on or not, but stated that she could “see plainly.”3
However, because both men used bandannas to mask their
faces and wore hats, she was not able to describe either man
very well. She testified that she initially thought that the man
by the dresser was Emmett, who also owned a similarly light-
colored jacket, but on further reflection thought it more likely
that she saw the inner liner of a short jacket worn inside out,
  2
     Mrs. Konzelman believes that she was attacked because she protested
when her husband was beaten. However, she stated that she based this
opinion on speculation and that she didn’t actually remember why the bur-
glar decided to attack her. It is therefore entirely possible that she was
attacked for a different reason, or—considering the methamphetamine-
induced state that both burglars were in at the time—that she was attacked
for no reason at all.
   3
     Contrary to the majority’s discussion of her observations, Maj. Op. at
17747, Elma Konzelman would not have “fail[ed] to notice” what she
could “see plainly.” ‘
                             SMITH v. BALDWIN                           17773
as she could see the tags. She described his pants as dark4 and
his hat as a “skull cap” or a “stocking cap.” She said that he
was white, not very tall, “not exactly skinny, but not heavy,”
and that he did not have long hair. She described him as rock-
ing back and forth on the balls of his feet, as if he couldn’t
stand still.5 She did not remember seeing any gloves on the
murderer’s hands. She could not describe the man in the door-
way, who she said only stood there for a short time before
leaving to resume ransacking her house. The second man also
wore a bandanna over his face.

   Mrs. Konzelman also remembered the attacker ripping out
her phone lines after the attack to prevent her from calling the
police, and that she heard a voice saying “Low” repeatedly.6
Mrs. Konzelman said that she thought that the voice saying
“Low” was not the voice of the man who attacked her, but
that it was hard for her to be sure because he had only said
that one word over and over.7
  4
     The majority argues that “simply because black jeans were recovered
from Smith’s house and Mrs. Konzelman stated that the killer wore dark
or black pants, it does not follow that Smith wore black jeans on the night
of the burglary.” Maj. Op. at 17747. The fact that officers found pants
matching Mrs. Konzelman’s description of what the killer was wearing in
Smith’s possession is undeniably inculpatory, particularly combined with
the other evidence in the record that Smith wore jeans that night. Obvi-
ously, the fact that a defendant owns black pants is of limited probative
value in and of itself, but just as a brick is not a wall, the majority’s asser-
tion that “it does not follow that Smith wore black jeans on the night of
the burglary” wholly misses the point.
   5
     The tendency to fidget and the inability to sit still is a common symp-
tom among methamphetamine users and addicts.
   6
     Her early statements to police suggested that this might have been a
truncated version of the word “hello,” but the record suggests that the two
burglars referred to each other by the code names “High” and “Low” dur-
ing the robbery.
   7
     Not to mention the fact that she was seventy-four, she had just been
awakened unexpectedly at four in the morning to watch her husband get
beaten in the head with a crowbar, and she herself had just been hit in the
head with that same crowbar.
17774                       SMITH v. BALDWIN
   Smith has never given a detailed account of that evening on
the record.8 To quote the district court, however, he has
“steadfastly denied hitting either victim with the crowbar, or
even carrying the crowbar into the Konzelman home.” Smith
wrote a letter to Elma Konzelman that was read during his
sentencing. In this letter, he implicitly admitted his involve-
ment in the burglary but maintained that he was not the killer,
even though he could not remember certain parts of the eve-
ning. He also stated that Emmett Konzelman’s death was “a
very violent and tremendous accident” that “never would have
happened if it wasn’t for drugs.”

   In contrast, Edmonds has given many accounts of that eve-
ning, which together encompass nearly every possible way
that the burglary and murder might have occurred. Nonethe-
less, when considered in conjunction with the physical evi-
dence recovered by the police and the testimony of the other
witnesses, some things become clear. Both Smith and
Edmonds were in the garage together before entering the
house. There, they found two hats, and each put one on to dis-
guise himself before entering the house. One burglar wore a
baseball cap or a skull cap, while the other wore a floppier,
fedora-type hat, with a brim running all the way around it.
The men were also together when they both tied bandannas
over their faces. Both burglars wore gloves, though it is not
entirely clear who wore which gloves. Edmonds has stated
that he wore a pair of white latex gloves, while Smith wore
a pair of black leather gloves. However, evidence in the
record also suggests that Smith wore a single brown work
glove taken from the Konzelmans’ garage, and Smith asserts
in his opening brief on appeal that he wore one or two such
gloves.9 In the garage, the pair found a crowbar and a rope.
  8
     Nor, under the protections of the Fifth Amendment, is he in any way
obligated to do so.
   9
     I find that this assertion by the defense actually inculpates Smith. Mrs.
Konzelman testified that she did not see gloves on the killer’s hands. Her
testimony suggests that Smith wore only one brown glove, leaving
                           SMITH v. BALDWIN                          17775
They brought both items into the house, with an eye toward
possibly tying up the residents with the rope. According to
affidavits from Smith’s two trial lawyers, Smith admitted to
carrying the rope into the house. Police found the rope on the
floor of the Konzelmans’ bedroom. The crowbar was found
on the floor of the Konzelmans’ kitchen.

   After leaving the Konzelman residence, Smith and
Edmonds returned to the truck, where they rejoined Bouse.
Edmonds drove the trio to Smith’s father’s house. Meanwhile,
Elma Konzelman waited until she was sure that the burglars
were gone before climbing out of her bed. When she realized
that all of her phones had been disabled, she found her cane
and carefully made her way next door to the neighbors’ house
for help. The Konzelmans were rushed to the hospital. Mrs.
Konzelman required surgery, including the implantation of a
metal plate in her head, but she survived her injuries. Sadly,
Mr. Konzelman was not as fortunate; he succumbed to his
injuries sixteen hours later.

   The trio was ultimately caught through a serendipitous con-
vergence of good luck and sharp police work. While speaking
with Edmonds about an unrelated offense, the police discov-
ered that he had attended a particular Judas Priest concert in
Seattle. A ticket stub from that same concert was found in the
street about a block away from the Konzelmans’ on the morn-
ing after the burglary. After further investigation, the police
confirmed that the ticket belonged to Edmonds. When con-
fronted with this evidence, Edmonds admitted to his involve-

Edmonds as the wearer of the latex gloves. This evidence is made more
incriminating by the fact that the work glove had a small blood stain on
its palm. Even though the stain was too small to permit blood typing, the
presence of blood suggests that it may have been worn by the killer. The
matching glove was found in the Konzelmans’ garage. In light of the
attention that the majority gives to the rest of Smith and Edmonds’s attire,
Maj. Op. at 17746-47, I find it strange that they ignore this piece of evi-
dence.
17776                      SMITH v. BALDWIN
ment with the burglary and identified Bouse and Smith as his
companions that evening. Smith was charged with seven
counts: aggravated murder, felony murder,10 burglary, two
counts of robbery, and two counts of assault.

   Other evidence that corroborated Edmonds’s version of
events,11 Smith’s violent history, and Edmonds’s apparent
credibility12 all pointed to Smith as the killer. While in cus-
tody, Edmonds also made statements to his cellmate Samuel
Seaman consistent with the version of events Edmonds told
the police. Ultimately, Edmonds was given a plea bargain
contingent upon passing a polygraph examination. Although
the results of the examination were inconclusive, the examin-
er’s opinion was that Edmonds was being truthful, and the
state proceeded with the plea agreement. Meanwhile, Smith’s
defense was under the impression that Edmonds had passed
  10
      In Oregon, felony murder and murder are codified under the same
statute, OR. REV. STAT. § 163.115 (2003), but felony murder was clearly
the theory under which Smith was charged and prosecuted in this case.
   11
      The majority acknowledges that there is evidence corroborating
Edmonds’s initial accounts of the burglary, but finds that the corroborated
elements “are irrelevant to the question [of] whether he or Smith commit-
ted the murder.” Maj. Op. at 17745. This is not true. Edmonds stated that
the Konzelmans woke up because Smith turned on the bedroom lights,
which conforms with Mrs. Konzelman’s version of events. Edmonds testi-
fied that he was standing in the bedroom doorway behind Smith when
Smith stepped into the room and turned on the lights. This positioning
matches Mrs. Konzelman’s testimony that before the beating she saw one
burglar in her room by the dresser and another in the doorway. Edmonds
testified that Mr. Konzelman started to rouse, and Smith told him to “Lay
back down, old man,” before making a threatening gesture with the crow-
bar, at which point Edmonds left. This sequence of events synchronizes
with Mrs. Konzelman’s description almost exactly, including that the sec-
ond burglar was only in the doorway for a short period of time before
walking away. In Mrs. Konzelman’s testimony, the only other evidence
that has been presented about the murder, there is actually significant cor-
roboration for Edmonds’s testimony.
   12
      When officers informed Edmonds that his ticket stub had been found
at the scene of the homicide, he put his head down on the interrogation
table and started to cry.
                       SMITH v. BALDWIN                  17777
his polygraph examination. The defense requested a copy of
Edmonds’s polygraph test results, but the prosecution, believ-
ing that the defense was not entitled to them because the pros-
ecution could not introduce them as evidence, refused to
produce them.

   Faced with Edmonds’s testimony against him and the pos-
sibility of the death penalty if he proceeded to trial, Smith
entered into a plea bargain. He pled no contest to felony mur-
der and one count of robbery. In exchange, the state dropped
the other five counts against him, including the capital crime
of aggravated murder, as well as the charges pending against
Smith’s girlfriend, Jeannie Simons. Smith received a life sen-
tence, with a minimum term of 30 years. He appealed to the
Oregon Court of Appeals and the Oregon Supreme Court
without success.

   Smith then sought post-conviction relief in state court,
alleging violations of both his Sixth Amendment right to
counsel and his due process rights. Smith’s petition was
denied on its merits, as was his request for new counsel. On
appeal, new counsel was appointed for Smith. However, on
appeal, he argued only that his request for new counsel should
have been granted at his first post-conviction hearing. He did
not appeal the decision of the lower court on the merits. The
Oregon Court of Appeals ruled against Smith and the Oregon
Supreme Court denied review. Because Smith never presented
his substantive post-conviction claims to the Oregon Supreme
Court, he has not exhausted his state remedies.

   Meanwhile, Edmonds was released from prison. He com-
mitted another crime and himself received a life sentence.
Edmonds then sent the district attorney a short affidavit in
which he recanted his testimony against Smith, declaring that
Smith did not kill Mr. Konzelman and that Edmonds had
knowingly committed perjury. Yet, at the same time, he main-
tained his innocence, stating that he had perjured himself out
17778                  SMITH v. BALDWIN
of fear that “Roger Smith was about to testify and leave me
to do a life sentence for a crime I did not commit.”

   Smith returned to state court to seek post-conviction relief
based on Edmonds’s contradictory affidavit. The state court
ruled against Smith, and he appealed. While this appeal was
pending, he filed a motion with the state court requesting the
voluntary dismissal of his appeal and the court granted his
request.

   Smith then sought federal post-conviction relief. During the
course of these proceedings, Smith’s counsel obtained a sec-
ond affidavit from Edmonds. This affidavit again stated that
Smith did not kill Mr. Konzelman and that Edmonds had
committed perjury. The affidavit also stated that Edmonds
had not passed the polygraph test required by his plea bargain.
Smith amended his petition by adding two additional claims.
The first claim contended that his conviction violated his con-
stitutional rights because he was actually innocent of felony
murder. The second claim, based on Brady v. Maryland, 373
U.S. 83 (1963), derived from the prosecution’s failure to pro-
duce Edmonds’s polygraph test results when requested.

   After the government saw Edmonds’s second affidavit, it
arranged a meeting with Edmonds and his court-appointed
counsel. There, the government informed Edmonds that if he
persisted in testifying according to his affidavits, the state
could have his plea agreement set aside. Without his plea
agreement in place, Edmonds could be subject to capital mur-
der charges for the killing of Emmett Konzelman. On the
other hand, if Edmonds reaffirmed his prior testimony, which
had identified Smith as the murder, the state would not pursue
perjury charges against him based on the contents of his affi-
davits. After conferring with counsel, Edmonds decided to
invoke his Fifth Amendment rights and refused to testify. In
response, Smith argued that the prosecution had engaged in
misconduct in order to prevent Edmonds from presenting
exculpatory testimony. He sought a district court order com-
                           SMITH v. BALDWIN                          17779
pelling the prosecution to grant Edmonds use immunity under
United States v. Westerdahl, 945 F.2d 1083 (9th Cir. 1991).

   The district court denied Smith’s petition on procedural
grounds because he had failed to exhaust his state remedies,
and his procedural default could not be excused because he
had neither demonstrated actual innocence nor cause and prej-
udice. It rejected Smith’s claim of prosecutorial misconduct
and denied his request for an evidentiary hearing. This appeal
followed.

                           II.   ANALYSIS

   On post-conviction review under AEDPA, we “may not
reach the merits of procedurally defaulted claims.” Williams
v. Stewart, 441 F.3d 1030, 1061 (9th Cir. 2006); see also 28
U.S.C. § 2254(b) (2000). A claim is procedurally defaulted if
“the petitioner failed to follow applicable state procedural
rules in raising [it].” Sawyer v. Whitley, 505 U.S. 333, 338
(1992). However, “[f]ederal courts retain the authority to
issue the writ of habeas corpus in a further, narrow class of
cases despite a petitioner’s . . . procedural default.”
McCleskey v. Zant, 499 U.S. 467, 494 (1991). This narrow
class of cases consists of those “extraordinary” cases where “a
constitutional violation probably has caused the conviction of
one innocent of the crime.” Id. In such a case, a “claim of
innocence[ ] . . . is procedural, rather than substantive,” in that
it allows a petitioner to overcome procedural hurdles so that
a court will hear his actual substantive claim—that his consti-
tutional rights were violated—on the merits. Schlup v. Delo,
513 U.S. 298, 314-15 (1995). Such a “claim of innocence is
thus ‘not itself a constitutional claim, but instead a gateway
through which a habeas petitioner must pass to have his other-
wise barred constitutional claim considered on the merits.’ ”
Id. at 315 (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)).13
  13
    The majority states that such a claim would not be subject to proce-
dural default. See Maj. Op. at 17736-37 n.4. But it is not at all clear from
17780                       SMITH v. BALDWIN
   Smith raises various constitutional claims arising from the
actions of prosecutors and his own counsel prior to his entry
of his plea of no contest. However, these claims are not before
us because Smith has procedurally defaulted on these claims
by failing to exhaust his remedies before the Oregon courts.
The only way we may consider his claims at this time is if he
can prove his actual innocence. Smith must show that, consid-
ering all the evidence now available, it is more likely than not
that no reasonable juror would convict him of felony murder,
the crime to which he pled no contest. See House v. Bell, 126
S. Ct. 2064 (2006).

   The majority gets Smith over these formidable procedural
hurdles in three steps. First, the majority finds that the prose-
cution engaged in misconduct by preventing Edmonds from
testifying on Smith’s behalf at his post-conviction proceed-
ings by telling Edmonds that if he recanted his prior testi-
mony, he would be in breach of his plea bargain and he could
therefore be charged anew with the murder. The majority then
decides—and it is the first court to even consider such a rem-
edy, let alone to adopt it—that the remedy for this misconduct
is to presume the truthfulness of Edmond’s recantation for the
purposes of Smith’s actual innocence inquiry. By thus having
assumed that Edmonds likely wielded the crowbar, the major-
ity finds that no reasonable jury would have convicted Smith
and that therefore he is actually innocent of felony murder. I
disagree with the majority at each step.




Herrera that this is the case. The Herrera Court only assumed that estab-
lishing substantive actual innocence in a capital case “would . . . warrant
federal habeas relief if there were no state avenue open to process such
a claim.” Herrera, 506 U.S. at 417 (emphasis added). Thus, so long as a
habeas petitioner has a state forum in which he could have his actual inno-
cence claim heard, but eschews it in favor of federal review, we would
still be barred from adjudicating it on the merits because of the petitioner’s
procedural default.
                         SMITH v. BALDWIN                       17781
A.     Prosecutorial Misconduct

   In general, a criminal defendant is not entitled to compel
the government to grant immunity to a witness. United States
v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989). In Wester-
dahl, 945 F.2d 1083, we held that while the decision to grant
or withhold immunity is generally the exclusive domain of
prosecutors, there is a limited exception under which a court
can compel a grant of use immunity. Westerdahl’s exception
applies when “the fact-finding process is intentionally dis-
torted by prosecutorial misconduct, and the defendant is
thereby denied a fair trial.” 945 F.2d at 1086. A defendant can
make a prima facie case of prosecutorial misconduct by dem-
onstrating that “the government distorted the judicial fact-
finding process by denying immunity to [a] potential
[defense] witness” whose testimony would have been rele-
vant. Id. “If a defendant makes an unrebutted prima facie
showing of prosecutorial misconduct that could have pre-
vented a defense witness from giving relevant testimony, we
will remand the case to the district court to determine at an
evidentiary hearing whether the government intentionally dis-
torted the fact-finding process.” United States v. Whitehead,
200 F.3d 634, 640 (9th Cir. 2000) (emphasis added) (quota-
tion omitted); see also United States v. Tam, 240 F.3d 797,
804 n.4 (9th Cir. 2001) (same); Westerdahl, 945 F.2d at 1086,
1088 (same); United States v. Lord, 711 F.2d 887, 891 (9th
Cir. 1983) (same). Other circuits take a similar approach. See,
e.g., United States v. Tarricone, 21 F.3d 474, 476-77 (2d Cir.
1993) (remanding a prosecutorial misconduct claim for an
evidentiary hearing to address questions of the government’s
intent and knowledge); Kirkpatrick v. Whitley, 992 F.2d 491,
497-98 (5th Cir. 1993) (same); Virgin Islands v. Smith, 615
F.2d 964, 969 (3d Cir. 1980) (same). If, on remand, the dis-
trict court finds misconduct, then it can force the state to grant
the defense witness use immunity.14
  14
    Technically, in our Westerdahl cases, the state is not compelled to
offer use immunity. However, if the state declines to do so, the court
enters a judgment of acquittal for the defendant.
17782                     SMITH v. BALDWIN
   There is also a second line of cases which the majority
opinion relies on. These cases stem from the Supreme Court’s
decision in Webb v. Texas, 409 U.S. 95 (1972), where the trial
judge “gratuitously singled out . . . one witness for a lengthy
admonition on the dangers of perjury,” thereby implying “that
he expected [the witness] to lie.” Id. at 97. The trial judge
then proceeded “to assure him that if he lied, he would be
prosecuted and probably convicted for perjury, that the sen-
tence for that conviction would be added on to his present
sentence, and that the result would be to impair his chances
for parole.” Id. The witness subsequently refused to testify;
the Court stated that the judge “effectively drove that witness
off the stand.” Id. at 98. The Court held that, in doing so, the
trial judge had denied the defendant the right to present his
own witnesses, thus violating his Due Process rights under the
Fourteenth Amendment. Id.

   The majority relies heavily on a number of cases following
Webb, such as Earp v. Ornoski, 431 F.3d 1158 (9th Cir.
2005), and, in particular, United States v. Vavages, 151 F.3d
1185 (9th Cir. 1998).15 These cases hold that “substantial gov-
ernment interference with a defense witness’s free and
unhampered choice to testify amounts to a violation of due
process.” Vavages, 151 F.3d at 1188 (quotation omitted). If a
defendant can establish both that the prosecution committed
such a violation and that he suffered prejudice as a result, he
is entitled to have his conviction vacated and to be retried.
See, e.g., id. at 1188-93.

  But, while both the Vavages and the Westerdahl lines of
cases address prosecutorial misconduct, a petitioner who
seeks relief under one line of cases presents a very different
argument than a petitioner who seeks relief under the other.
Vavages requires “substantial government interference with a
defense witness’s free and unhampered choice to testify,” 151
  15
    As these cases make clear, Webb’s rule has been extended to apply to
prosecutors as well as judges.
                       SMITH v. BALDWIN                   17783
F.3d at 1188, but Westerdahl requires something different; it
requires a defendant to demonstrate that the “the fact-finding
process [was] intentionally distorted by prosecutorial miscon-
duct,” 945 F.2d at 1086. The biggest difference between these
two standards is that Westerdahl has a more stringent pro-
secutorial intent requirement than Vavages does. This makes
sense, as Westerdahl enables a defendant to compel the prose-
cution to grant immunity, a remedy that Vavages and its
brethren do not provide. But here, Smith has opted not to seek
relief under Vavages, and has only made an argument under
Westerdahl. His opening and reply briefs do not cite to Vav-
ages or to any other cases in its line. Nor does he argue that
there was “substantial government interference with a defense
witness’s free and unhampered choice to testify.” Instead, he
narrowly focuses his attention on an argument under Wester-
dahl. The majority’s attempt to conjure a Vavages claim
based on the argument that the cases “address[ ] the same
basic issue,” Maj. Op. at 17761-62 n.30, is unconvincing. An
argument that is not raised by a party in its opening brief is
waived; accordingly, Smith has waived any Vavages argu-
ment he might make. See, e.g., Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999).

   I do not agree with the majority’s decision to raise Vavages
sua sponte, nor do I agree that this case falls within Vavages’s
purview. Under Vavages, we examine the totality of the cir-
cumstances to determine whether the prosecution “substan-
tially interfere[d]” with a witness’s right to decide whether to
testify. “Among the factors courts consider . . . are the manner
in which the prosecutor or judge raises the issue, the language
of the warnings, and the prosecutor’s . . . basis in the record
for believing the witness might lie.” Vavages, 151 F.3d at
1190. I address each in turn.

   First, the manner in which the prosecutor raised the issue
contradicts the majority’s assertion that the prosecutor was
trying to interfere in Edmonds’s decision to testify or not. It
was the prosecution, not the defense, who asked the court to
17784                     SMITH v. BALDWIN
appoint counsel for Edmonds. And the prosecution did not
attempt to discuss Edmonds’s affidavits with him until after
the court had provided him with counsel. If the prosecutor
was driven by a desire to scare Edmonds into silence, it would
have been much easier to do so if he was not represented by
counsel. The only reason that the prosecutor would have
wanted Edmonds to have legal counsel is if he wanted to
ensure that Edmonds was fully informed of the consequences
of his actions so that he could be prosecuted if he was, in fact,
the murderer.16 As in Vavages, “there is no question that the
prosecutor was justified in . . . cautioning [Edmonds’s coun-
sel] against his client’s testifying falsely, and informing him
of the possible consequences of [his] testimony.” Id. Thus, the
manner in which the prosecutor raised the issue cuts against
Smith. See also id. at 1191 (“The strongest factor in the gov-
ernment’s favor is that the prosecutor never directly admon-
ished [the witness].”).

   Second, the message itself was truthful and contained no
more information than was necessary to communicate to
Edmonds the implications of his change in testimony. Here,
the message that the state would seek the death penalty
against Edmonds if he testified that he, and not Smith, had
killed Mr. Konzelman was, indisputably, a weighty statement,
and if driven by an improper motive, would constitute pro-
secutorial misconduct of the highest order. See id. at 1190.
But if Edmonds was lying, his testimony would be perjury
that could potentially enable a convicted murderer to escape
justice. Such a scenario would be sufficiently dire to merit
such a stern warning.

  Moreover, the prosecutor had very good reason to issue the
  16
    The majority notes that appointed counsel was likely to advise
Edmonds of the risks of testifying. While the majority’s cynical reading
that appointed counsel was “a necessary preliminary step to Edmonds’s
execution,” Maj. Op. at 17759-60 n.28, one cannot seriously question the
benefits of acting with counseled advice.
                            SMITH v. BALDWIN                          17785
warning to Edmonds. The state had previously entered into a
plea agreement with Edmonds based on the premise that
Smith, not Edmonds, had wielded the crowbar, and that
Edmonds would so testify. If Edmonds recanted his testimony
against Smith, he necessarily implicated himself and under-
mined the whole basis for his plea agreement. Under the
circumstances—a vacillating, opportunistic witness—the state
had every right, and perhaps even a duty, to advise Edmonds
that his testimony imperiled his plea agreement and rendered
him eligible for renewed charges. I suspect that we would not
look favorably on a prosecutor who kept silent while a defen-
dant violated his plea agreement and then declared him in
breach and charged the defendant with the original offense.

   Finally, the prosecutor had ample “basis in the record for
believing [that Edmonds] might lie.” Id. “[A] direct conflict
between the witness’[s] proposed testimony and [his] own
prior testimony” constitutes a “substantial basis in the record
for believing the witness might lie” which could justify “un-
usually strong admonitions against perjury.” Id. Here,
Edmonds was offering a version of events that completely
contradicted testimony that he had given on multiple occa-
sions, multiple statements he had given to the police, and
statements that he had made to a cellmate.

   But the prosecution also had another reason to think that
Edmonds was lying: After Edmonds was released for his role
in the Konzelman burglary and murder, he committed another
crime and was sentenced to life in prison.17 Edmonds gave his
   17
      Although I rely on this evidence to evaluate the lessened deterrent
force of potential punishment, I do not use the conviction, as the majority
does, as propensity evidence to suggest that it indicates Edmonds was
more likely to have been the Konzelmans’ killer. See Maj. Op. at 17743
n.8. The majority mis-reads Schlup as definitively allowing this inadmissi-
ble evidence.
  It is a well-established proposition that FED. R. EVID. 404(b) strictly for-
bids propensity evidence as improper because its prejudicial effect out-
17786                       SMITH v. BALDWIN
affidavits while he was already in prison for this subsequent
offense. It is quite plausible that Edmonds, believing that any
testimony he gave would have no consequences for him,
decided to lie in order to exculpate his old associate Smith.18

weighs its probative value. See Old Chief v. United States, 519 U.S. 172,
180-82 (1997). This evidence and the majority’s unqualified inference is
no more acceptable under the Schlup inquiry than it would be in court.
   The majority interprets Schlup as providing that “[u]nder AEDPA, we
may consider such evidence on habeas review without regard to the rules
of admissibility that would govern at a trial.” Maj. Op. at 17743 n.8 (refer-
ring to Schlup, 513 U.S. at 327-28). It is true that Schlup notes that a
reviewing court “is not bound by the rules of admissibility that would gov-
ern at trial.” 513 U.S. at 327. That is, a court may consider “relevant evi-
dence that was either excluded or unavailable at trial.” 513 U.S. at 327-28.
Such evidence, the Court explains, includes “that alleged to have been ille-
gally admitted (but with due regard to any unreliability of it) and evidence
tenably claimed to have been wrongly excluded or to have become avail-
able only after the trial.” Id. (citation omitted); see also House v. Bell, 126
S. Ct. 2064, 2077 (2006) (characterizing Schlup as allowing for review of
“old and new, incriminating and exculpatory” evidence).
   But it is not clear that Schlup allows for consideration of all inadmissi-
ble evidence. Schlup and its progeny emphasize that a reviewing court
need not make reliability or credibility determinations in assessing
whether a petitioner passes through the Schlup actual innocence gateway.
See Schlup, 513 U.S. at 331 (noting that the new evidence was potentially
unreliable). Instead, reviewing courts may assume the truthfulness of new
evidence in assessing whether no juror would find a petitioner guilty
beyond a reasonable doubt. See id. (assuming statements to be true and
then evaluating whether a juror hearing such evidence would vote to con-
vict).
   At no point has the Supreme Court provided for evaluation of flatly and
notoriously inadmissible evidence like the propensity evidence discussed
by the majority. While Schlup frees a reviewing court from admissibility
considerations such as assessing reliability and weighing credibility,
Schlup does not permit us to consider evidence that is inadmissible inde-
pendent of such considerations.
   18
      By the same token, Edmonds may have reasoned that, since he would
be spending the rest of his life behind bars, he ought to acknowledge his
true role in the murder of Emmett Konzelman and thereby exonerate the
wrongfully convicted Smith. Indeed, this is Smith’s theory. But the alter-
nate posited motivation is at least as plausible, and the prosecutor cannot
be faulted for refusing to accept Edmonds’s questionable new testimony
at face value.
                           SMITH v. BALDWIN                          17787
The prosecution had good reason to believe that this was
indeed the case; the second affidavit was prepared and pro-
cured by Smith’s counsel in this proceeding.19 This fact, when
combined with Edmonds’s testimonial reversal, reveals that
the prosecution had very strong grounds for believing that
Edmonds’s testimony would be a lie. On balance, then, even
if we consider Smith’s claim under Vavages—and I do not
think that we should do so—I do not think that Smith can
meet its requirements.

   The majority takes a different view, and, without even con-
sidering the fact that Smith has not raised a Vavages argu-
ment, finds that Smith has met its requirements. The
majority’s efforts to supplant Smith’s actual claim is neces-
sary to its result because Smith cannot succeed on the Wester-
dahl argument that he has made. It is not at all clear on this
record that the prosecution distorted the factfinding process,
intentionally or otherwise. Nor did the district court agree
with the majority’s view that prosecutors “threatened”
Edmonds. The district court found that the prosecutor
“warned Edmond[s]’s counsel that the district attorney would
seek the death penalty if Edmonds testified that he, and not
Smith, actually killed Emmet[t] Konzelman.” While there is
arguably a fine line between warning of future consequences
and threatening retribution, the distinction is critical to a
determination of prosecutorial intent.

  The record in this case presents a number of legitimate
explanations for the prosecution’s conduct. As I have dis-
cussed above, the prosecution had unusually strong reasons to
believe that Edmonds, who thought that any statements he
made would be without consequences, was lying. Under these
  19
    A perjury charge for Edmonds’s testimony at Smith’s sentencing was
barred by the statute of limitations. The record indicates that the prosecu-
tion was concerned that Smith’s defense attorney might have told
Edmonds this, but neglected to tell him that his plea agreement could be
set aside and that he could be prosecuted for capital murder.
17788                     SMITH v. BALDWIN
circumstances, advising Edmonds that there could be real
consequences to his actions was not an act taken to “intention-
ally distort[ ]” the factfinding process, but instead was merely
designed to prevent Edmonds from distorting the process.
More importantly, as I discussed above, the prosecutor was
giving Edmonds fair warning that his changed testimony
would breach his plea agreement, which entailed serious con-
sequences. The majority’s approach seems to leave prosecu-
tors no appropriate course of action other than rolling over
and permitting defendants to violate their plea bargain agree-
ments with impunity.

   Nor do I believe that we should conclude that the prosecu-
tion’s actions were unwarranted because, as the majority
claims, the prosecution had previously “determin[ed] in
Smith’s case that an appropriate punishment for the actual
killer was 30 years to life.” Maj. Op. at 17760. First, we
should use the sentence the prosecution sought to impose on
Smith, rather than the sentence he actually received after his
plea bargain, as the basis of any comparison. Smith was
indicted for aggravated murder, which is a capital crime in
Oregon, see OR. REV. STAT. § 163.105(1)(a) (2003), and both
Smith’s own affidavit and those of his trial attorneys identify
his eligibility for the death penalty as a primary reason for his
plea bargain. For that reason, I see no significance in the
majority’s comparison. Second, unlike the majority, I cannot
say that a prosecutor’s decision to vigorously pursue charges
against a person who claims to have committed murder must
necessarily be motivated by an improper desire to prevent that
person from testifying. I think that it is at least equally plausi-
ble that such decisions are motivated by an entirely proper
impulse—a desire to bring that person to justice for his crimes.20

  I am not suggesting that we should eviscerate Westerdahl
by conclusively presuming that prosecutors always act with
  20
    I note that, under Oregon law, there is no statute of limitations for
either murder or manslaughter. OR. REV. STAT. § 131.125(1) (2003).
                       SMITH v. BALDWIN                   17789
only the noblest of intentions when they make immunity deci-
sions. Government malfeasance threatens the very legitimacy
of our criminal justice system. Therefore, prosecutorial mis-
conduct is an extremely serious charge that must be investi-
gated carefully. But the question of the prosecution’s intent is
a factual one, and must be resolved in each case by thoughtful
and thorough consideration of the evidence. That task, we
have sensibly held, should be undertaken by the district court.
In Westerdahl cases, the defendant and the prosecution will
often assert conflicting and contradictory versions of what
happened and why. An appellate court, examining a cold and
undeveloped record, is not the ideal institution for resolving
such questions. Our precedent recognizes that an evidentiary
hearing in the district court is a far superior mechanism. It is
telling that in each of our Westerdahl cases, we have
remanded to the district court for an evidentiary hearing. See,
e.g., United States v. Young, 86 F.3d 944, 949 (9th Cir. 1996)
(remanding for an evidentiary hearing to determine whether
the prosecutor withheld immunity from a defense witness in
order to intentionally distort the factfinding process); Wester-
dahl, 945 F.2d at 1086 (same); Lord, 711 F.2d at 892-93
(same). The majority short-circuits this mechanism by avoid-
ing the analysis required by a Westerdahl claim, and instead
analyzing the case for a Vavages violation, which does not
require the same showing of prosecutorial intent and the
accompanying remand for an evidentiary hearing.

   Thus, my problem with the majority’s conclusion goes far
beyond the fact that it finds prosecutorial misconduct where
I would find none. Far more important, the majority’s conclu-
sion is premature. Instead of sifting through conflicting asser-
tions with the aid of an undeveloped record, the majority
should have followed our Westerdahl precedents and
remanded this case to the district court for an evidentiary
hearing on this question. The majority should not have devi-
ated from our precedent by co-opting the Vavages line of
cases and answering this question itself.
17790                       SMITH v. BALDWIN
B.     Remedy

   Even if we could conclusively determine that there was
prosecutorial misconduct here, I also take issue with the
majority’s conclusion that the standard Westerdahl remedy
for prosecutorial misconduct—ordering the prosecution to
grant a defense witness use immunity—would be insufficient
in this case. Maj. Op. at 17763-65. The majority reasons that
if Smith’s conviction is overturned as a result of Edmonds’s
testimony, the prosecution could then charge Edmonds with
murder and seek the death penalty. Id. Knowing this, the
majority reasons, it is unreasonable to expect Edmonds to tes-
tify truthfully even if he is granted use immunity.21 Id. The
majority declares that the issue of a remedy for Smith’s case
presents a “novel procedural posture.” Maj. Op. at 17763.
However, this case is not novel. It presents a standard claim
of prosecutorial misconduct under Westerdahl for which the
remedy is clear, and clearly tied to the violation found. It is
wholly inappropriate to treat this issue as open to fashioning
new remedies when we are clearly bound by case law. How-
ever, this is what the majority does. Maj. Op. at 17763-65.
And after evaluating a series of proffered remedies,22 the
majority concludes that the appropriate response is to presume
the truth of Edmonds’s affidavits for purposes of the Schlup
inquiry. Id. at 17765-68.
  21
      While the death penalty is of course the most severe punishment a
defendant can receive, nothing in the majority’s logic is limited to cases
involving capital punishment. The spectre of a life sentence is still a
highly coercive punishment that could have nearly as strong an effect on
a defendant’s behavior, and the same logic would apply to any long prison
sentence. Indeed, the defense witness who was granted immunity in
Westerdahl faced a conviction for robbery which carried a potential sen-
tence of at least twenty years. See Westerdahl, 945 F.2d at 1085; United
States v. Westerdahl, 727 F. Supp. 1364, 1365 (D. Or. 1989).
   22
      Although the majority settles on what it terms “the least intrusive” of
the three remedies it invents, Maj. Op. at 17765, one cannot ignore the
utter obtrusiveness of all of the alternatives. Indeed, the majority’s analy-
sis is like comparing a wrecking ball to a bulldozer and settling on the lat-
ter to avoid some of the dust.
                            SMITH v. BALDWIN                          17791
   If ever there were affidavits that were entitled to a pre-
sumption of truthfulness, these surely are not they.23 Edmonds
has changed his testimony numerous times; at one point he
even professed a version in which Smith’s girlfriend was their
getaway driver.24 Cf. Schlup, 513 U.S. at 324 (“To be credible,
[an actual innocence] claim . . . [must be supported by] new
reliable evidence—whether it be exculpatory scientific evi-
dence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” (emphasis added)).
Similarly, the reason that we typically afford credibility to
confessions—i.e., that because such statements carry criminal
consequences, one ordinarily has no incentive to falsely con-
fess one’s guilt—does not apply here. See FED. R. EVID.
804(b)(3). Edmonds, already serving a life prison sentence,
and free from a charge of perjury for his prior testimony, see
footnote 19, supra, might well have thought that any state-
ment he might make carried no consequences for him. Indeed,
  23
      The majority does limit its opinion by only adopting the presumption
of truthfulness for the purposes of the Schlup actual innocence gateway.
See, e.g., Maj. Op. at 17730-31 (“We deem the exculpatory statements to
be truthful . . . only for the purpose of determining whether Smith’s con-
tentions are sufficient to excuse any procedural default that may have
occurred.”); id. at 17742 (“[W]e presume Edmonds’s affidavits to be true
for purposes of determining whether Smith is procedurally barred from
prosecuting in federal court.”); id. at 17765 (adopting the remedy that
“presum[es] Edmonds’s recantations to be true for the limited purpose of
determining whether Smith may pass through the Schlup gateway”); id. at
17767 (“[W]e . . . hold[ ] merely that Edmonds’s affidavits must be pre-
sumed to be true for purposes of the Schlup inquiry.”). Yet the fact that
the majority’s rule is limited to the Schlup inquiry is not particularly reas-
suring. Prisoners in our circuit file numerous claims under Schlup each
year. Many prisoners will likely try to contort the facts of their cases so
as to fit the majority’s narrow, but wholly unwarranted, expansion of our
case law.
   24
      She was originally indicted as a result. Ultimately, she was not prose-
cuted after it was discovered that she had not been in the truck and was
not involved in the Konzelman burglary. The government did pursue
charges against her for hindering prosecution, but these were dropped as
part of Smith’s plea agreement.
17792                       SMITH v. BALDWIN
once he found out that real consequences might attach to his
testimony, he refused to testify.

   The majority, undaunted by Edmonds’s fickle history and
the risk-free circumstances under which the affidavits were
made, sees fit to conclude that Edmonds has finally told the
truth. The majority’s willingness to accept Edmonds’s latest
version of events is remarkable. The majority’s treatment of
Edmonds’s past statements is similarly troubling. When
Edmonds’s testimony supports the majority’s views, it treats
Edmonds as the embodiment of truth itself. Whenever his tes-
timony does not mesh with the majority’s view of events, he
is a pathological liar. For example, when Edmonds confessed
his crime to a cellmate, “such statements by Edmonds lack credi-
bility.”25 Maj. Op. at 17745. Similarly, the majority finds that
Edmonds’s previous claims that his code name was “Low,”
“should be viewed with skepticism.” Id. at 17748.26 On the
other hand, Edmonds is to be fully credited when he “stated
that prior to entering the house, there had never been any dis-
cussion between him and Smith about hitting anyone or using
any kind of weapon on anyone,” id. at 17754, never mind that
“such statements by Edmonds [might] lack credibility,” id. at
17745, or that Edmonds has given two other accounts of the
evening where he and Smith discussed the possibility of using
the crowbar against the occupants. The majority also credits
Edmonds’s description of the hat Smith wore, Maj. Op. at
17746-47, as well as his statements that he and Smith were in
  25
      The majority’s full statement begins “Particularly in light of his recan-
tations, such statements by Edmonds lack credibility.” Id. at 17745. Of
course, this begs the question of which of his statements, if any, is true.
A jury might just as easily conclude that “Particularly in light of such
statements by Edmonds, his recantations lack credibility.”
   26
      The majority also concludes that, because of Edmonds’s subsequent
inability to remember the specifics of the code, the “evidence regarding
the use of code names appears inconclusive.” Id. at 17748. But elsewhere,
the majority concludes that the burglars did use code names and uses that
fact to infer that they did not intend to kill the Konzelmans at the outset.
Id. at 17752.
                            SMITH v. BALDWIN                         17793
different parts of the dark house for much of the burglary, id.
at 17753 n.20, even while concluding that “his initial testi-
mony is necessarily false . . . and lacks any force in counter-
ing the other available evidence,” id. at 17748.27

   But even if one were to ignore the affidavits’ troubling
back story, they are both internally inconsistent and plainly
inconsistent with each other. His first affidavit, from February
1996, states both that “Roger Smith did not kill Emmit Kon-
zleman [sic]” and that Edmonds testified falsely out of his
fear that “Roger Smith was about to testify and leave
[Edmonds] to do a life sentence for a crime [Edmonds] did
not commit.”28 Yet both Edmonds and Smith agree that they
and the Konzelmans were the only people to enter the Konzel-
man house that night, and it is clear that the Konzelmans did
not attack themselves. There is no way to reconcile this
affidavit—short as it is29 —with reality.30
  27
      Contrary to the majority’s claims, I do not argue that “we must either
afford full credibility to [Edmonds’s] testimony or none at all,” and I do
not dispute that “any factfinder would . . . choose the elements of his story
that it found credible and those that it did not.” Maj. Op. at 17748-49 n.16.
But the majority resolves every ambiguity in Edmonds’s testimony by
concluding that a jury would choose the reading that most favors Smith.
This is, at best, a highly dubious practice.
   28
      The majority suggests that “this confusing statement could have
resulted either from Edmonds’s characterization of his defense attorney’s
advice or the fact that he swore out his first affidavit without the benefit
of an attorney’s supervision to help him clarify his statements.” Maj. Op.
at 17744 n.9. It strains credulity to suggest that Edmonds thought that he
was innocent of murdering the Konzelmans because of “his defense attor-
ney’s advice.” The suggestion that Edmonds thought that he was innocent
because he wrote the affidavit “without the benefit of an attorney’s super-
vision” is equally absurd.
   29
      Edmonds’s 1996 affidavit is only a few lines long, and essentially says
only three things. It contains the two, conflicting statements previously
discussed, and a third statement that further impeaches Edmonds’s credi-
bility. This statement is the assertion that Edmonds committed perjury
“with full knowledge of the consequences.” Thus, when the majority
refers to the “unequivocal nature of every other statement relating to guilt
17794                       SMITH v. BALDWIN
   Smith’s 2001 affidavit is a slight improvement over its pre-
decessor, in that it is slightly longer and better organized and
that it does not blatantly contradict itself. It explains his per-
jury as simply motivated by a desire to avoid prosecution for
murder. While this differs markedly from what he said in his
first affidavit,31 it is certainly a more plausible reason. None-
theless, this affidavit remains entirely undeserving of the
weight the majority accords it. Entirely apart from the serious
question of Edmonds’s honesty, there are also real issues as
to his basis for making some of the statements in the affida-
vits, which consist entirely of bare, unsupported assertions.

   Edmonds’s unexplained statement in his recent affidavits
“that Mr. Smith never entered the Konzleman’s [sic] bed-
room,” which the majority credits, see Maj. Op. at 17754,
provides an excellent example of both problems. Mrs. Kon-
zelman’s testimony clearly refutes the affidavit in this respect:
She testified that both burglars entered the bedroom for a
short period of time.32 At the same time, it is somehow undis-
puted that the two burglars were in the Konzelman residence

in the affidavit,” Maj. Op. at 17744 n.9, it is relying on a remarkably small
amount of text.
   30
      As a matter of formal logic, I must admit to being somewhat baffled
by how the majority manages to accord a presumption of truth to two con-
flicting statements.
   31
      In the 1996 affidavit, he states that his perjury was motivated by a fear
that he would be unjustly convicted of a crime that he did not commit,
while the 2001 affidavit identifies a more mercenary desire to limit the
term of his incarceration.
   32
      It is possible to reconcile these two statements if Mrs. Konzelman
considered the burglar standing in her bedroom doorway to be standing in
her bedroom and Edmonds considered this to be standing outside the bed-
room. This is a highly charitable reading of Edmonds’s testimony, how-
ever. Moreover, as discussed later in my dissent, Smith has admitted to
carrying a rope into the house from the Konzelmans’ garage. This rope
was found by police on the floor of the bedroom. This provides a strong
independent basis, apart from Mrs. Konzelman’s testimony, from which
to conclude that Smith entered the Konzelman bedroom.
                          SMITH v. BALDWIN                        17795
for approximately forty minutes, and the majority states both
that Smith and Edmonds did not “ke[ep] track of one anoth-
er’s whereabouts while in the house,” id. at 17753 n.20, and
that “the two men were in different parts of the house for most
of the time,” id. at 17753. Thus, it seems that not only did
Edmonds lie in his affidavits, but that he lacked a basis for
even making many of the statements contained therein.

   Yet all of these issues—the internal inconsistencies, the
unsupported assertions, and the contradictions with other facts
in the record—could be fully addressed if Edmonds testified
at an evidentiary hearing. Indeed, if Edmonds were given use
immunity—like that which we have granted every other wit-
ness under the Westerdahl exception—there is good reason to
believe that this is precisely what would happen. Further,
Smith has not even asked for the extraordinary remedy that
the majority confers.33 I cannot agree with the majority’s deci-
sion to jettison an entire line of precedent by creating a new
remedy that is entirely alien to our case law and that does not
suit the facts of this case.

C.     Actual Innocence and the Schlup Gateway

   Even indulging the majority’s presumption of truthfulness,
Smith is not actually innocent. Not even close. As a legal mat-
ter, Edmonds’s affidavits, even if believed, completely fail to
exculpate Smith of felony murder. In order to pass through
Schlup’s “actual innocence” gateway, the “petitioner [must]
show that ‘a constitutional violation has probably resulted in
the conviction of one who is actually innocent.’ ” Schlup, 513
U.S. at 327 (quoting Murray v. Carrier, 477 U.S. 478, 496
(1986)). “To establish the requisite probability, the petitioner
  33
    The majority argues that its remedy is not extraordinary, Maj. Op. at
17766, but I would say that according a presumption which we have never
before accorded—in any context—to an area where our cases have clearly
established that a particular remedy should be applied is, by definition,
extraordinary.
17796                      SMITH v. BALDWIN
must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evi-
dence.” Id. In determining whether the petitioner has carried
his burden, courts consider all of the evidence, not just that
which was presented at trial. Id. at 327-28. In doing so, how-
ever, courts must also consider the reliability of that evidence
and augment or discount its probative value as may be appro-
priate. Id.34

   In this case, the inquiry is more complicated than it would
be ordinarily. Smith pled no contest to felony murder, because
Emmett Konzelman was murdered in the course of Smith and
Edmonds’s burglarizing the Konzelmans. Smith does not
deny his involvement with the burglary. Instead, he rests his
claim to innocence on Oregon’s affirmative defense to felony
murder, which has five separate criteria that a defendant must
satisfy. See OR. REV. STAT. § 163.115(3) (2003). In Oregon,
defendants bear the burden of proving affirmative defenses by
a preponderance of the evidence. Id. § 161.055(2). Smith
must therefore prove, by a preponderance of the evidence,
that no reasonable juror would have found that he failed to
meet each of these five criterion by a preponderance of the
evidence. Or, put another way, Smith must show that it is
more likely than not that every reasonable juror would find
that Smith established every element of his affirmative
defense. Or, rephrased a third time, Smith must show by a
preponderance of the evidence that every juror who would
find that Smith did not establish his affirmative defense was
unreasonable. This is an extremely high burden to overcome:
If a single reasonable juror could find that the evidence was
in equipoise on any individual element of Smith’s affirmative
defense, we must find for the state.

  The elements of Oregon’s affirmative defense are not easy
  34
    As the majority notes, see Maj. Op. at 17741, the Supreme Court’s
recent decision in House v. Bell, 126 S. Ct. 2064 (2006), establishes that
the Schlup actual innocence gateway survives AEDPA.
                       SMITH v. BALDWIN                   17797
for a defendant to establish. A defendant must demonstrate
that he:

    (a) Was not the only participant in the underlying
    crime;

    (b) Did not commit the homicidal act or in any way
    solicit, request, command, importune, cause or aid in
    the commission thereof;

    (c) Was not armed with a dangerous or deadly
    weapon;

    (d) Had no reasonable ground to believe that any
    other participant was armed with a dangerous or
    deadly weapon; and

    (e) Had no reasonable ground to believe that any
    other participant intended to engage in conduct
    likely to result in death.

Id. § 163.115(3). The government concedes that Smith has
satisfied element (a); however, each of the other four elements
is contested.

   Although I disagree with the majority on nearly every ques-
tion presented in this case, I think there is at least one thing
that is beyond dispute—it simply is not clear exactly what
happened during the forty minutes that Smith and Edmonds
were inside the Konzelman residence. Smith has never given
a full account of what happened in this period, and Edmonds
has given numerous contradicting accounts, each of which is
marred by various biases. Elma Konzelman, the sole surviv-
ing, unbiased witness, was only conscious for a relatively
small portion of the burglary, and her recollections are under-
standably somewhat hazy.
17798                      SMITH v. BALDWIN
   When one combines the vague and incomplete state of the
evidence with the burden of proof imposed by Oregon’s affir-
mative defense to felony murder, which requires that Smith
bear the burden of proof on multiple elements, and Schlup,
which requires that a petitioner demonstrate that every juror
who would find against him was unreasonable, it becomes
clear that Smith cannot prevail. Thus, even if the majority was
correct that the prosecution engaged in misconduct, Smith did
not suffer any prejudice because, even if Edmonds were to
testify consistently with his affidavits,35 there is no way that
Smith can satisfy the daunting burden created by Schlup and
Oregon’s expansive felony murder statute. Even if one
accepts the majority’s dubious remedy and accords
Edmonds’s affidavits the presumption of truth, Smith has not
carried his burden of proof on elements (c), (d), and (e).36 I
address each of these elements in turn.

  1.    Whether Smith “Was Not Armed with a Dangerous or
        Deadly Weapon”

   The majority relies heavily on Edmonds’s recantations to
conclude that Edmonds was the killer, not Smith. Based on
this conclusion, the majority reasons that there is no evidence
in the record to suggest that the other burglar—i.e., Smith—
  35
      Referring to the second affidavit, the majority states that “Edmonds’s
declaration even more strongly inculpated himself and exculpated Smith
as the actual killer.” Maj. Op. at 17734. But because Smith was convicted
of felony murder it makes no difference whether or not he actually killed
Mrs. Konzelman. The affidavit says nothing about the three contested ele-
ments of Oregon’s felony murder affirmative defense, and if he cannot
establish any one of those elements, Smith’s claim of actual innocence
fails.
   35
      If we do not presume Edmonds’s affidavits to be true, it is even
clearer that these elements have not been met. For example, a juror might
find that Edmonds’s story has changed so drastically in each retelling that
nothing he said was credible. That juror could rely on Elma Konzelman’s
testimony to infer that the two burglars were near each other in the lighted
bedroom and that, even if Edmonds had committed the murder, Smith
could not establish that he had not seen Edmonds carrying the crowbar.
                            SMITH v. BALDWIN                           17799
was armed at any point. Maj. Op. at 17749-51. As I discuss
below, this is simply not true. Yet even if it were true, Smith
bears the burden of actually proving that he was not armed at
any point; a lack of evidence is insufficient. If it was more
likely than not that any reasonable juror could find that there
was at least a fifty percent chance that Smith was armed at
any point during the burglary, then the Schlup gateway is
closed to Smith.

   A reasonable juror might well have made such a finding
here. A reasonable juror could have concluded that the two
burglars conferred in the garage for some time on their
method, and emerged from this conference with a clear con-
sensus. Both wore hats and similarly knotted bandannas to
disguise their physical appearance. Both wore gloves to avoid
leaving fingerprints inside the house. They procured these
items together, with each taking items from both Edmonds’s
truck and the Konzelmans’ garage. They established paired
code names, “High” and “Low,” to further shield their identi-
ties. It hardly strains credulity to conclude that both decided
to carry a weapon in the event that the residents should
awaken while they were in the house.37 Even if only one
weapon was available (which was unlikely to be the case in
a garage full of tools), the two might have debated who would
carry the crowbar. If Smith picked it up first, or held it for a
minute before giving it back to Edmonds, that brief posses-
sion would suffice.38
  37
      The police found knives next to the single brown bloodstained work
glove outside the Konzelmans’ residence. At least one of those knives was
established to have come from the Konzelmans’ garage. As Smith argues
on appeal that he wore a single brown work glove, a reasonable juror
could easily find that Smith carried a knife during the burglary.
   38
      It is also worth noting that, even after their evidentiary value has been
unduly magnified by the presumption of truth that the majority grants
them, Edmonds’s affidavits provide no direct insight as to whether Smith
was armed at any point.
17800                        SMITH v. BALDWIN
   Then there is the rope. Smith’s trial attorneys both swore
out affidavits stating that Smith admitted to carrying the rope
into the Konzelman residence and Edmonds stated that they
took it in case they should need to restrain their victims. Noth-
ing in the record contradicts these assertions. Our legal report-
ers are replete with cases where criminals have used ropes as
weapons. See, e.g., Schad v. Arizona, 501 U.S. 624, 627
(1991); Sims v. Brown, 425 F.3d 560, 564 (9th Cir. 2005);
State v. Langley, 840 P.2d 691, 695 (Or. 1992) (en banc).39
Oregon’s statutory affirmative defense to felony murder
requires a defendant to establish that he was not armed with
any dangerous or deadly weapon; it is insufficient to establish
that he was not carrying the murder weapon. Thus, even if a
reasonable juror concluded that Smith never handled the
crowbar, that juror may still conclude that Smith was armed
with a dangerous weapon because he was carrying the rope.

   The majority argues that it does not matter that Smith car-
ried the rope because, the majority concludes, it is not a “dan-
gerous weapon” under Oregon law.40 Maj. Op. at 17749-50.
Oregon law defines a “dangerous weapon” as “any weapon,
device, instrument, material or substance which under the cir-
cumstances in which it is used, attempted to be used or threat-
ened to be used, is readily capable of causing death or serious
  39
      I note also that this perception is hardly limited to the legal world. For
example, the popular board game Clue features a rope as one of the possi-
ble murder weapons. The others are the revolver, the lead pipe, the
wrench, the candlestick, and the knife. See also ROPE (Alfred Hitchcock
1948).
   40
      The majority argues that I have “creative[ly]” “concocted [the rope
argument] out of whole hemp,” and that the state does not raise this argu-
ment. Maj. Op. at 17749. Since Smith bears the burden of proving that he
was not armed, it seems entirely appropriate to rely on the undisputed fact
that he carried the rope in assessing whether he has met that burden,
regardless of whether the state has raised this issue. As for creativity, my
own imagination pales in comparison to the majority’s—its opinion draws
sweeping, astounding conclusions from the tiniest scraps of evidence and
applies an unrequested, never-before-seen remedy.
                       SMITH v. BALDWIN                   17801
physical injury.” OR. REV. STAT. § 161.015(1) (2003); Maj.
Op. at 17749-50. According to the majority, “[t]here is no evi-
dence suggesting that the rope in this case qualified [as a dan-
gerous or deadly weapon].” Id. at 17750. This contention is
absurd. Oregon courts have interpreted a “dangerous weapon”
quite broadly. See, e.g., State v. Hill, 692 P.2d 100 (Or. 1984)
(en banc) (automobile); State v. Reed, 790 P.2d 551 (Or. Ct.
App. 1990) (concrete sidewalk); State v. Bell, 771 P.2d 305
(Or. Ct. App. 1989) (cowboy boots); State v. Gale, 583 P.2d
1169 (Or. Ct. App. 1978) (can opener); State v. Jacobs, 579
P.2d 881 (Or. Ct. App. 1978) (hot water). When burglars
attempt to tie up awakened victims in the middle of the night,
the rope they use is certainly “readily capable of causing
death or serious physical injury.” Cf. State v. Cornell, 842
P.2d 394, 396, 402 (Or. 1992) (en banc) (upholding a felony
murder conviction where victim died as a result of being
bound by burglar). At one point, Edmonds testified that they
took the rope so they could bind the occupants if they awoke.
The majority ignores this evidence. But given that the victim
in Cornell died when a rope was used as a restraint, a juror
hearing testimony of this plan could reasonably conclude that
the rope was a dangerous weapon, likely to cause death or
serious physical injury if used in this way.

   These are only a few of the logical paths that reasonable
jurors might have taken. In this case, where so many details
are unclear, it is impossible for Smith to meet the evidentiary
burden that Schlup imposes. Yet the majority gives short
shrift to the legal standards at issue, blithely brushing aside
any concerns by relying on its questionable assumption that
Edmonds was likely the killer.

  2.   Whether Smith “Had No Reasonable Ground to
       Believe That [Edmonds] Was Armed with a Dangerous
       or Deadly Weapon”

  The majority’s analysis of whether Smith knew Edmonds
was armed is no more satisfying than its determination that
17802                       SMITH v. BALDWIN
Smith was not armed. Based on the fact that the house was dark,41
and the fact that Edmonds’s testimony as to when he and
Smith entered the house was unclear, the majority concludes
that every reasonable juror would likely conclude that Smith
failed to notice that his companion was toting a three-foot-
long crowbar. Maj. Op. at 17752-54.

   I cannot agree. It would have been difficult for Edmonds to
conceal a three-foot-long crowbar, assuming he had wished
to, and there is nothing in the record to suggest that Edmonds
even attempted such a concealment.42 As discussed previ-
ously, Smith and Edmonds were in the garage together for
some time disguising themselves, assigning code names, and
planning for contingencies before they entered the house. A
reasonable juror could easily conclude that Smith saw the
weapon then.43
  41
      The majority neglects to mention that the burglars had no visibility
problems while they were picking through the Konzelmans’ garage. The
record suggests that this was because they each carried and used a light
source: Edmonds and Bouse each had a lighter and Smith had a flashlight.
   42
      Edmonds’s affidavits do not say anything about Smith’s knowledge of
the presence of the crowbar.
   43
      The majority attempts to downplay this possibility, emphasizing that
the burglary was “haphazard and unplanned” because “the burglars ran in
and out of the house due to unexpected noises and left several items
behind, including Mr. Konzelman’s money and wallet.” Maj. Op. at
17752. It is undisputed that a loud noise initially drove the burglars out of
the garage. Indeed, it was after they fled that they decided to return and
burglarize the interior of the house instead of merely the garage. At that
point, they returned to the garage, disguised themselves, established code
names and obtained a weapon. Thus, the fact that they initially fled only
serves to undermine the majority’s position instead of supporting it. As for
Mr. Konzelman’s money and wallet, the record does not suggest that the
burglars abandoned it in their haste to flee, but that they never found it.
In any event, their treatment of the wallet sheds little light either on the
discussion the two burglars had in the Konzelmans’ garage or on the ques-
tion of how likely Smith would have been to see a crowbar in Edmonds’s
hand.
                             SMITH v. BALDWIN                         17803
   There is also plenty of evidence in the record to support a
finding that Edmonds and Smith entered the house at or
around the same time. The majority gives short shrift to one
of Edmonds’s accounts of how they entered the house
together and ignores others completely.44 Even without this
evidence, a jury could easily rely on Edmonds’s descriptions
of how the two entered together after they disguised them-
selves together—strongly corroborated by the undisputed fact
that Smith and Edmonds adopted similar disguises—and con-
  44
    There is plenty of evidence from which a jury could conclude that the
burglars entered the house together. Consider, for example, this excerpt
from a statement that Edmonds gave to police:
       [A]t that point we go in there and uh, we’re standing by the
       garage and I figure, before we get [the wallet from inside the
       house], just in case they wake up, and we have to run, that we
       mask ourselves, uh, put hats on and I noticed that there was two
       hats hanging on hooks in the garage so, we grabbed those and we
       put them on and we masked ourselves with bandanas and uh, we
       went in the house . . . .
Or consider this transcript of police questioning Edmonds:
       Police:       Okay, alright, and then you entered the house?
       Edmonds:      Yes.
       P:            You’re in the living room?
       E:            Yes.
       P:            Is Roger [Smith] with you then?
       E:            Uh, yeah.
Or consider Edmonds’s testimony at Smith’s sentencing proceedings:
       Prosecutor:   Who went into the house first?
       Edmonds:      I did.
       ....
       P:            Did you see Mr. Smith come into the house?
       E:            Yeah.
       P:            How long had you been in the house when Mr.
                     Smith came inside the house?
       E:            Ah, I don’t know. He came in probably right behind
                     me.
17804                      SMITH v. BALDWIN
clude that Edmonds and Smith entered together, which would
have given Smith an excellent opportunity to notice the three-
foot-long crowbar that the majority posits Edmonds was car-
rying. That conclusion, however, would be inconvenient to
the majority’s case. Moreover, according to Smith’s attorneys,
even though they told him what he would have to prove in
order for his affirmative defense to succeed, Smith never told
them that he did not know Edmonds was carrying the crow-
bar. Indeed, it was concern over precisely these issues that
persuaded Smith’s two trial attorneys to forgo this affirmative
defense and seek a plea bargain.

   The majority’s inferences drawn from other “facts” fare no
better. From Mrs. Konzelman’s statement that she was
attacked by one person and Edmonds’s affidavit’s bald asser-
tion that “Smith never entered the Konzleman’s [sic] bed-
room,” the majority concludes that “Smith was not present
when Edmonds struck Konzelman.” Maj. Op. at 17753-54.
This reasoning has several problems. First, Mrs. Konzelman’s
testimony refutes Edmonds’s affidavit on this point. She testi-
fied that both burglars entered the bedroom for a short period
of time. Second, nothing in Mrs. Konzelman’s statement is
inconsistent with Smith being present when she was beaten.45
Even ignoring the question of who was actually doing the
striking, the fact that there was a lone attacker does not prove
that the second burglar was not present during the beatings.
Although Mrs. Konzelman saw the second burglar walk away
from the doorway, she was hit in the head with a crowbar
  45
     Yet, when it fulfills other needs, the majority finds that “the state
could subpoena [Smith] and compel him to testify, truthfully, that
Edmonds . . . was the killer.” Id. at 17764 n.33. The majority does not
explain how Smith could not have been present, but could “testify[ ] truth-
fully” that Edmonds killed Mr. Konzelman. If the majority merely means
that Smith can testify that he did not kill the Konzelmans, it is not at all
clear why the jury would credit his view over contrary testimony from
Edmonds. Of course, if Smith had seen Edmonds kill Konzelman, he
would have to have seen the crowbar, which would completely foreclose
his affirmative defense to felony murder.
                          SMITH v. BALDWIN                       17805
directly afterward, at which point she, understandably, seems
to have lost visual track of her surroundings as the first bur-
glar continued beating Mr. Konzelman. It is entirely possible
that the second burglar returned to the doorway while the
beating was going on, or that he moved to a vantage point in
the hallway from which he would not be visible to Mrs. Kon-
zelman but could still see the attack.46 Moreover, the second
burglar need not have been present for the attack. All that is
required is that he had reasonable grounds to believe that the
first burglar was armed. Yet the majority concludes otherwise,
adopting its own version of the facts as incontrovertible and
ignoring all contrary evidence.

   I have only scratched the surface of the broad realm of pos-
sible conclusions that a reasonable juror might have drawn. A
reasonable juror easily could have credited Mrs. Konzelman’s
testimony and concluded that Smith saw the crowbar while he
was standing in the doorway of the Konzelmans’ bedroom
and Edmonds was standing by the dresser, before the beating
began.

   Once again, the rope provides another sticking point for
Smith’s case. Smith admitted to his attorneys that he took the
rope into the Konzelmans’ home. The crowbar was found in
the Konzelmans’ kitchen, and the rope was found on the floor
of the bedroom. It is unlikely that the burglar carrying it
would have abandoned the rope in the Konzelmans’ bedroom
while they were asleep and untouched. Similarly, since the
crowbar was found in the kitchen, the murderer had to con-
tinue carrying it after the beating. Thus, even assuming that
Edmonds carried the crowbar and Smith the rope, the ultimate
placement of both objects implies that Smith and Edmonds
crossed paths while Edmonds had the crowbar and Smith the
rope, or that Edmonds took the rope from Smith before the
  46
    This also casts doubt on the majority’s suggestion that “the details
about the actual murder that Edmonds was able to provide could best be
explained by the fact that he was the attacker.” Maj. Op. at 17745 n.11.
17806                      SMITH v. BALDWIN
beating. In either event, it is strong evidence that, at some
point during the course of the burglary,47 Smith knew that
Edmonds was carrying the crowbar.48

   Even a more modest hypothetical juror would recognize the
implausibilities in the majority’s argument. Smith did not
need to know that Edmonds was armed. It would suffice if
Smith had reasonable grounds to believe that Edmonds was
armed. This was almost certainly the case here. Recall again
that Edmonds and Smith were in the garage together planning
for some time before they entered the house. In the course of
their discussion of disguises and code names and while
Edmonds was rifling through the tools,49 Edmonds may well
have indicated his intent to carry a weapon inside with him,
just in case. This knowledge alone would be enough to ruin
Smith’s affirmative defense. Yet all of this is lost on the
  47
      The Oregon statute does not specify when during the course of the
crime a defendant must be aware that his accomplices are armed. There
is good reason to conclude that a defendant who persists in the felony after
discovering that his co-felon is armed is precluded from succeeding under
Oregon’s affirmative defense, even if the murder has already been com-
mitted at that point. The same underlying inferences regarding a defen-
dant’s mental culpability that animate this element of the affirmative
defense—that the defendant persists in committing a felony despite the
fact that the presence of an armed criminal greatly increases the risks that
victims face—applies equally well before and after the beating in this
case, since a second victim (Mrs. Konzelman) was still alive and vulnera-
ble. Mrs. Konzelman also testified that the burglars continued to ransack
her home after the attack.
   48
      The majority’s conclusion that “Smith likely dropped the rope when
he paused briefly in the bedroom doorway and before he continued on
down the hall” —a conclusion based solely on the fact that “the rope was
found just to the ‘left of the bedroom door’ ”—is speculation of the high-
est order. Maj. Op. at 17749 n.17. There is absolutely nothing in the record
that would suggest that Smith dropped the rope when the majority posits
that he did. The majority cannot even provide a reason why Smith would
have dropped the rope at that point. A reasonable juror could easily draw
a multitude of very different conclusions from this evidence.
   49
      A chainsaw from the Konzelmans’ garage was among the items that
Edmonds stole and brought back to his truck.
                            SMITH v. BALDWIN                          17807
majority, whose opinion takes the most narrow conceivable
view of what a juror might have found, completely flouting
the Supreme Court’s holding in Schlup.

  3.    Whether Smith “Had No Reasonable Ground to
        Believe That [Edmonds] Intended to Engage in
        Conduct Likely to Result in Death”

   The majority also makes short shrift of what reasonable
jurors might infer about Smith’s knowledge the evening of the
burglary.50 While the fact that the burglars used disguises and
code names could suggest that they did not intend to kill the
Konzelmans, Maj. Op. at 17752, the question is not whether
the burglars originally intended to kill the Konzelmans. The
question is whether Smith had reasonable grounds to believe
that Edmonds intended to engage in potentially deadly con-
duct, and there is ample evidence to support such a finding.
Indeed, a reasonable juror might well have found that Smith
was put on notice as he stood in the bedroom doorway and
saw that a visibly drug-addled Edmonds had turned on the
lights and was waking up the Konzelmans. Even if one were
to accept the majority’s highly contrived reasoning and con-
clude that Smith could not see any weapons as he looked into
the room, the fact that Edmonds was intentionally arousing
the house’s occupants was surely enough to put Smith on
notice that extremely dangerous conduct—either outright vio-
lence from resisting victims, or the imposition of some form
   50
      The majority mischaracterizes the district court’s consideration of this
issue. The majority states that “The district court never found that
Edmonds and Smith planned to engage in any violent conduct or even dis-
cussed doing so.” Maj. Op. at 17754. In fact, the district court did not
reach the question of whether Smith and Edmonds had explicitly planned
to engage in violent conduct or discussed that possibility because it con-
cluded that the nighttime burglary of a home that they knew was occupied
was sufficiently dangerous conduct to foreclose the affirmative defense.
To imply that the district court considered whether Edmonds and Smith
“planned to engage in any violent conduct,” or would have needed to, is
highly misleading.
17808                       SMITH v. BALDWIN
of dangerous restraint of the victims to keep them from seek-
ing help—was likely to be forthcoming.51

   And yet again, our reasonable juror need not even go this
far. As discussed earlier, a reasonable juror would very likely
conclude that Smith brought the rope into the house with the
contemplated purpose of using it to restrain the victims. Bur-
glaries often involve potentially perilous circumstances.52
Tying victims up is highly dangerous conduct that is likely to
result in death—particularly in cases such as this one, where
the victims are very elderly and are awakened unexpectedly
by burglars in the middle of the night.

   Indeed, there is Oregon case law directly on point. In State
v. Cornell, 842 P.2d 394, 396, 402 (Or. 1992) (en banc), a
burglar tied up his victim and left; as a result, the victim died
of asphyxiation. The defendant was convicted of felony mur-
der, and the Oregon Supreme Court upheld the conviction.53
  51
      The majority states that “Edmonds himself stated that prior to entering
the house, there had never been any discussion between him and Smith
about hitting anyone or using any kind of weapon on anyone.” Maj. Op.
at 17754. The record demonstrates that Edmonds has stated the exact
opposite multiple times, a fact which the majority ignores. Edmonds also
testified at Smith’s sentencing hearing that they took the rope so they
could bind the occupants if they awoke.
   52
      The majority relies on Enmund v. Florida, 458 U.S. 782, 799-800
(1982) for statistics to dispute that a “generic residential robbery is likely
to result in death.” Maj. Op. at 17754 & n.23. But while Supreme Court
opinions are binding precedent for their legal holdings, they are not so for
their statistical references.
   Even if, as the majority argues, the Enmund statistics are still valid
today, the occurrence of homicide during a robbery is not a sufficiently
refined measure of whether any given activity is likely to result in death.
Smith and Edmonds discussed tying up any occupants of the house. They
anticipated that their planned burglary might turn confrontational. Cer-
tainly the likelihood of serious injury or death occurring under these cir-
cumstances may be greater than average. See http://www.fbi.gov/ucr/
05cius/index.html (providing definitions and reporting statistics).
   53
      The majority’s statement that “there [we]re no plans to engage in vio-
lent conduct and, to Smith’s knowledge, no weapons on hand with which
                           SMITH v. BALDWIN                         17809
Many other jurisdictions have upheld convictions under simi-
lar fact patterns. See also, e.g., Hill v. Norris, 96 F.3d 1085
(8th Cir. 1996) (same); Cowan v. Artuz, 96 F. Supp. 2d 298
(S.D.N.Y. 2000) (upholding felony murder conviction after
medical examiner testified that cause of death was “heart
attack possibly caused by stress from being struck . . . and
bound”); United States ex rel. Brodie v. Hilton, 496 F. Supp.
619 (D.N.J. 1980) (upholding the felony murder conviction of
a burglar whose victim was asphyxiated as a result of being
bound); Cannistraci v. Smith, 470 F. Supp. 586 (S.D.N.Y.
1979) (upholding a reckless murder conviction where victim
was asphyxiated after being bound); State v. Molitor, 729
S.W.2d 551 (Mo. Ct. App. 1987) (upholding felony murder
conviction after victim was asphyxiated as a result of being
bound). The majority suggests that a rope may not qualify as
a deadly or dangerous weapon. While that may be true gener-
ally, the rope in this case does qualify. Edmonds and Smith
were prepared to use the rope as a restraint. Given that the
victim in Cornell died when so restrained, the inherent danger
in such use of a rope is clear.

   Summarizing all of the factual and legal conclusions that
the majority would require every reasonable juror to draw
demonstrates just how unreasonable their construction of the
evidence is. Every reasonable juror would have to conclude
that the night’s events proceeded as follows: Smith and
Edmonds, after deciding to burglarize the house to look for
Mr. Konzelman’s wallet, returned to the garage together.
They then disguised themselves and adopted code names.
However, contrary to Edmonds’s prior testimony, they never
discussed carrying a weapon in case the residents—whom
they knew to be home—awakened. The two then entered the

to do so” is patently false. Maj. Op. at 17754-55. The record is clear that
the burglars were contemplating tying up the house’s residents. This
would clearly be violent conduct. As I have discussed earlier, the rope
itself was a weapon.
17810                  SMITH v. BALDWIN
house, with Edmonds carrying a three-foot-long crowbar that
Smith never touched. In fact, Smith not only didn’t touch it,
he didn’t even have any reason to suspect that Edmonds was
carrying a three-foot-long crowbar that Edmonds made no
effort to conceal. Smith himself carried a rope he planned to
use to tie up the victims if they awoke—an idea that, contrary
to Edmonds’s testimony, he must have gotten on his own,
since he and Edmonds never even contemplated what they
would do if their victims woke up—but tying up resisting oct-
agenarian victims who had been rudely awakened in the mid-
dle of the night and then leaving them there was not conduct
likely to result in death. Smith and Edmonds then spent forty
minutes burglarizing the Konzelmans’ residence, but even
though Edmonds wasn’t keeping track of where Smith was or
what he was doing during this entire time, Smith never had
reason to believe that Edmonds was carrying a three-foot-long
crowbar, or that he was contemplating any conduct that was
likely to result in death. Smith then walked by the Konzel-
mans’ bedroom, where he saw that Edmonds, who had turned
the bedroom light on, was standing at the foot of the Konzel-
mans’ bed and was waking them up. But this did not put
Smith on notice that anything was amiss because Edmonds
must have placed the crowbar on the ground at this point, so
Smith didn’t see it, and he could not reasonably have foreseen
any potential problems from the visibly drug-addled Edmonds
waking the visibly geriatric Konzelmans in the course of the
burglary. In fact, Smith felt so at ease that he decided to aban-
don the rope he was carrying right then and there, dropping
it into the room without ever noticing the crowbar that was
only a few feet away from it. Smith, confident that Edmonds
and the Konzelmans would have a peaceful and harmonious
discourse, then proceeded down the hall to resume burglariz-
ing. He remained completely and blissfully unaware of what
transpired in the bedroom until Edmonds had him pull the
kitchen phone out of the wall (Edmonds himself was, at the
same time, pulling the bedroom phone out of the wall). Smith
then left the house without ever seeing the crowbar, which
                       SMITH v. BALDWIN                  17811
Edmonds must have tossed in the kitchen as he ran out of the
house. Edmonds ran faster than Smith, though, since both
Edmonds and Smith were able to make it back to Edmonds’s
truck at the same time. Smith was as surprised as everyone
else to learn that Mr. Konzelman had been murdered and Mrs.
Konzelman had been assaulted.

   Unfortunately for the people of Oregon, and fortunately for
Smith, the majority does not even consider the inferences that
a reasonable juror would likely draw. Instead, the majority
engages in one-sided advocacy, cabining its analysis to nar-
rowly limit the universe of findings that a reasonable juror
might make. In doing so, the majority infers elaborate conclu-
sions from the tiniest scraps of evidence, building narrow
platforms that it leaps between in a complex game of judicial
hopscotch. It is difficult enough to trace their path; I cannot
join them in it.

                    III.   CONCLUSION

   I vigorously disagree with the majority. I think that the
majority finds a prima facie case of prosecutorial misconduct
where there was none; I think that the majority should have
addressed the prima facie case it concocted by remanding to
the district court for an evidentiary hearing; and I think that
the majority should not have deviated from our Westerdahl
precedent by presuming Edmonds’s internally and mutually
conflicting affidavits to be true instead of remanding for an
evidentiary hearing with a grant of immunity. But I need not
be right on every single one of these points to render my posi-
tion correct and the majority’s erroneous. If I am correct on
any single one of these issues, the majority has erred in its
disposition of this case.

   But most egregiously, even if we indulge in all of the
majority’s legal innovations, the majority cannot escape the
facts of this case. Smith is guilty of felony murder. He has no
affirmative defense. The Schlup gateway is closed to him, and
17812                  SMITH v. BALDWIN
no amount of prying and tugging—not even with a crowbar
and a rope—can get it open.

  I respectfully dissent.
