Philip Noel Cain v. State of Oregon

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP NOEL CAIN,
Petitioner - Appellant,
v.
STATE OF OREGON,
Respondent - Appellee.
No. 10-35366
D.C. No. 6:03-cv-00228-HO
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted October 8, 2013
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Philip Noel Cain appeals from the district court’s dismissal of his habeas
petition. The district court determined that despite the victim’s unequivocal
recantation, Cain had failed to show the requisite actual innocence required by the
FILED
NOV 05 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Supreme Court’s opinion in Schlup v. Delo, 513 U.S. 298 (1995), to excuse the
untimeliness of his habeas petition. We hold that the district court failed to apply
the legal standard set forth in Schlup, and applying that standard, determine that
Cain has made a sufficient showing of actual innocence to excuse the untimeliness
of his habeas petition. 1 Accordingly, we vacate the district court’s order and
remand the case for consideration of Cain’s habeas petition on its merits.
In Schlup, the Supreme Court established an exception to the timeliness
requirement for habeas petitions holding that a petitioner could avoid the
procedural bar if he showed “a constitutional violation has probably resulted in the
conviction of one who is innocent.” 513 U.S. at 327 (quoting Murray v. Carrier,
477 U.S. 478, 496 (1986)). The Court explained: “To establish the requisite
probability, the petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence. The
petitioner thus is required to make a stronger showing than that needed to establish
prejudice.” Id.
1 Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2

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In House v. Bell, 547 U.S. 518 (2006), the Supreme Court offered further
guidance on the actual innocence standard. First, while recognizing that the Schlup
standard permits review in only extraordinary cases, it noted that:
the Schlup standard does not require absolute certainty about the
petitioner’s guilt or innocence. A petitioner’s burden at the gateway
stage is to demonstrate that more likely than not, in light of the new
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt – or, to remove the double negative, that more likely
than not any reasonable juror would have reasonable doubt.
Id. at 538. Second, the Court noted that “[b]ecause a Schlup claim involves
evidence the trial jury did not have before it, the inquiry requires the federal court
to assess how reasonable jurors would react to the overall, newly supplemented
record.” Id. Third, in response to the state’s argument for deference to the district
court’s findings, the Court stated:
Deference is given to a trial court’s assessment of evidence presented
to it in the first instance. Yet the Schlup inquiry, we repeat, requires a
holistic judgment about all the evidence, and its likely effect on
reasonable jurors applying the reasonable-doubt standard. As a
general rule, the inquiry does not turn on discrete findings regarding
disputed points of fact, and it is not the district court’s independent
judgment as to whether reasonable doubt exists that the standard
addresses. Here, although the District Court attentively managed
complex proceedings, carefully reviewed the extensive record, and
drew certain conclusions about the evidence, the court did not clearly
apply Schlup’s predictive standard regarding whether reasonable
jurors would have reasonable doubt.
Id. at 539-40 (quotation marks and citations omitted).
3

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We adhere to the spirit and holding of Schlup. Lee v. Lampert, 653 F.3d
929, 932 (9th Cir. 2011) (en banc) (holding that “a credible claim of actual
innocence constitutes an equitable exception to AEDPA’s limitations period, and a
petitioner who makes such a showing may pass through the Schlup gateway and
have his otherwise time-barred claims heard on the merits”).
Here, the district court recognized that the victim’s recantation if true would
meet the Schlup gateway test. However, after holding an evidentiary hearing, the
district court concluded that Cain had not made the requisite showing to pass
through the gateway because despite the victim’s “current lack of equivocation, the
court finds her recantation now to lack credibility.”
We review the district court’s credibility determination pursuant to the two-
step test set forth in United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)
(en banc). We first “determine de novo whether the trial court identified the
correct legal rule to apply to the relief requested.” Id. If the court applied the
correct legal ruling we “determine whether the trial court’s application of the
correct legal standard was (1) illogical, (2) implausible, or (3) without support in
inferences that may be drawn from the facts in the record.” Id. (quotation marks
and citations omitted).
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Applying the first step, we conclude that the district court failed to apply the
correct legal rule. The court failed to make the “probabilistic determination about
what reasonable, properly instructed jurors would do” as required by the Supreme
Court. House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 329). Instead, it
inappropriately made “an independent factual determination about what likely
occurred.” Id. As in House, the district court “did not clearly apply Schlup’s
predictive standard regarding whether reasonable jurors would have reasonable
doubt.” Id. at 540. Accordingly, we vacate the district court’s order denying
Cain’s habeas petition.
Reviewing the record, including the evidentiary hearing held by the district
court, we conclude that Cain has made the requisite showing of actual innocence to
pass through the Schlup gateway. In doing so we express no opinion about “what
likely occurred” and remand the case to the district court to consider the merits of
the habeas petition, such as they may be.
VACATED and REMANDED. Costs should be taxed against the
appellee. Fed R. P. 39 (a) (3).
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