The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER REGARDING SCOPE OF EVIDENTIARY HEARING AND
On August 17, 2011, the Ninth Circuit remanded the case to this Court for the following purpose:
In light of the intervening en banc decision in Lee v. Lampert, No. 09-35276, 2011 WL 3275947 (9th Cir. Aug. 2, 2011) (en banc), we vacate our opinion in Souliotes v. Evans, 622 F.3d 1173 (9th Cir. 2010), reverse the district court's dismissal of Souliotes's habeas petition as untimely, and remand for proceedings consistent with Lee.
We also vacate our order of limited remand issued on May 25, 2011, with the understanding that the district court will conduct whatever proceedings are necessary, in an expedited manner, to determine whether any of Souliotes's habeas claims may be addressed on the merits.
The Ninth Circuit Court of Appeals granted Petitioner's request for an evidentiary hearing regarding Petitioner's attempt to use the actual innocence gateway as described in Schlup v. Delo, 513 U.S. 298, 315, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). If Petitioner makes a showing that he is 'actually innocent' he is entitled to have otherwise untimely claims heard on the merits. Petitioner shall also present evidence that he was diligent in presenting his stand alone actual innocence claim and therefore entitled to statutory tolling under 28 U.S.C. § 2244(d)(1)(D).
The parties initially expressed some disagreement as to the scope of the hearing and the scope of discovery necessary to prepare for the hearing. The Court's scheduling order directed briefing on these issues. (Order, ECF No. 84.) Each party filed an initial brief on October 28, 2011 and then a reply brief on November 4, 2011. (ECF Nos. 85-86, 88-89.) A hearing on the discovery and related issues was convened by the Court on November 9, 2001. Petitioner appeared telephonically through his counsel, Jimmy McBirney, and Respondent appeared, also telephonically, through his counsel, Kathleen McKenna.
The following order reflects the parties' agreements and the Court's orders on the issues addressed during the hearing.
A. Relevant Supreme Court and Ninth Circuit Precedent
In order to better frame the discussion regarding the scope of discovery and evidence to be presented at the evidentiary hearing, the Court directed the parties to recent reiterations of the standard for reviewing actual innocence gateway claims by the Ninth Circuit and the Supreme Court. (Scheduling Order, pp. 3-4, ECF No. 84.), Specifically, the order recited the following statements of law.
In Lee v. Lampert, the Ninth Circuit held:
In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him "within the 'narrow class of cases . . . implicating a fundamental miscarriage of justice.'" 513 U.S. at 314-15 (quoting McCleskey, 499 U.S. at 494). The evidence of innocence must be "so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Id. at 316.
To pass through the Schlup gateway, a "petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id. at 327; House, 547 U.S. at 538. This exacting standard "permits review only in the 'extraordinary' case," but it "does not require absolute certainty about the petitioner's guilt or innocence." House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327). As we have previously said, "where post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred claims." Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (en banc) (citing Carriger v. Stewart, 132 F.3d 463, 478-79 (9th Cir. 1997) (en banc)).
Schlup requires a petitioner "to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324. The habeas court then "consider[s] all the evidence, old and new, incriminating and exculpatory," admissible at trial or not. House, 547 U.S. at 538 (internal quotation marks omitted); Carriger, 132 F.3d at 477-78. On this complete record, the court makes a "'probabilistic determination about what reasonable, properly instructed jurors would do.'" House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329).
Lee v. Lampert, 2011 U.S. App. LEXIS 15830, 20-23 (9th Cir. Or. Aug. 2, 2011) (en banc).
Further, the Supreme Court, in House v. Bell elaborates on the manner in which a district court is to determine a claim of actual innocence:
For purposes of this case several features of the Schlup standard bear emphasis. First, although "[t]o be credible" a gateway claim requires "new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial," id., at 324, 115 S. Ct. 851, 130 L. Ed. 2d 808, the habeas court's analysis is not limited to such evidence. ... In addition, ...we have no occasion to elaborate on Schlup's observation that when considering an actual-innocence claim in the context of a request for an evidentiary hearing, the District Court need not "test the new evidence by a standard appropriate for deciding a motion for summary judgment," but rather may "consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." 513 U.S., at 331-332, 115 S. Ct. 851, 130 L. Ed. 2d 808. Our review in this case addresses the merits of the Schlup inquiry, based on a fully developed record, and with respect to that inquiry Schlup makes plain that the habeas court must consider "'all the evidence,'" old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under "rules of admissibility that would govern at trial." See id., at 327-328, 115 S. Ct. 851, 130 L. Ed. 2d 808 (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). Based ...