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Larsen v. Soto

United States Court of Appeals, Ninth Circuit

September 16, 2013

Daniel Larsen, Petitioner-Appellee,
John Soto, Respondent-Appellant

Argued and Submitted July 30, 2013—Pasadena, California

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding D.C. No. 2:08-cv-04610-CAS-SS

Stephanie C. Brenan (argued), Deputy Attorney General; Xiomara Costello, Supervising Deputy Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Michael R. Johnsen, Supervising Deputy Attorney General; Richard S. Moskowitz, Deputy Attorney General; and Lance E. Winters, Senior Assistant Attorney General, Los Angeles, California, for Respondent-Appellant.

Jan Stiglitz (argued), Alissa Bjerkhoel, Justin Brooks, and Alexander Simpson, California Innocence Project, San Diego, California, for Petitioner-Appellee.

Benjamin G. Damstedt and Lori R. Mason, Cooley LLP, Palo Alto, California; Scott A. Cole, Cooley LLP, Reston, Virginia, for Amicus Curiae.

Before: William C. Canby, Jr., Stephen Reinhardt, and Kim McLane Wardlaw, Circuit Judges.


Habeas Corpus

The panel affirmed the district court's denial of a warden's motion to dismiss a facially untimely 28 U.S.C. § 2254 habeas corpus petition based on a showing of actual innocence.

After concluding that remand for consideration of the Supreme Court's recent decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), was unnecessary because the district court already undertook the analysis that Perkins prescribes, and after rejecting the warden's arguments regarding the credibility of petitioner's evidence, the panel held that petitioner satisfied the demanding standard of producing proof of innocence sufficient to undermine a court's confidence in his conviction.


WARDLAW, Circuit Judge:

Warden John Soto appeals the denial of his motion to dismiss Daniel Larsen's petition for a writ of habeas corpus. The district court held that Larsen's claims could be considered on the merits despite the facial untimeliness of his petition, on the ground that Larsen presented compelling evidence that he is actually innocent. Notwithstanding the one-year limitations period imposed on the filing of federal habeas petitions by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 28 U.S.C. § 2244(d), a habeas petitioner who convincingly demonstrates that he is innocent is entitled to present his claims for relief in federal court. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). We conclude that Larsen has made the requisite showing of innocence, and we affirm.



On the night of June 6, 1998, Los Angeles police responded to a report of an assault with a deadly weapon with shots fired at the Gold Apple bar[1] in Los Angeles's San Fernando Valley. The suspect was identified as a man wearing a green flannel shirt and his hair in a ponytail. LAPD Officers Michael Rex and Thomas Townsend responded to the scene. According to the officers, they approached the bar with their headlights and sirens turned off to avoid alerting any possible suspects of their arrival. They approached the bar through a back driveway and turned on overhead floodlamps, side spotlights, and high beams.

Officer Townsend would later testify (at Larsen's 1999 trial) that he and Officer Rex quickly noticed a man in the bar's parking lot who matched the earlier description of the suspect. Both officers would testify that the man pulled a linear object, about five or six inches long, from his waistband and threw it underneath a nearby car, and that this man, who wore a green flannel shirt, was Daniel Larsen.

That night, after seeing the man in the parking lot, the officers ordered everyone in the parking lot to get down on their knees with their hands on their heads and detained a number of them in handcuffs. They placed Larsen in the back of a police car, and Officer Townsend then set out to search for the object that he testified Larsen had thrown. Officer Townsend found a double-edged knife with a weighted handle and a finger guard underneath a pickup truck. He also found a copper cylinder ten to thirty feet from where Larsen had been standing, but in the opposite direction from where he said he had seen Larsen throw the object. Officer Rex also testified that the object Larsen threw was noticeably bigger than the copper bar. Larsen was arrested at the scene. When Rex asked for his name, Larsen falsely replied that his name was "Anthony Vant."

Larsen was charged with possession of a deadly weapon under former California Penal Code § 12020(a) and convicted after a jury trial.[2] The prosecution chose to charge the offense as a felony. Because Larsen had several prior felony convictions, he was sentenced to twenty-eight years to life imprisonment under California's Three Strikes Law. The California Court of Appeal affirmed Larsen's conviction on direct review on June 1, 2000, and the California Supreme Court denied review on August 9, 2000.


In May 2005, Larsen filed a habeas petition in Los Angeles County Superior Court. He argued that he had received ineffective assistance of counsel at his trial because his defense attorney, who has since been disbarred, failed to conduct an adequate investigation of his case, did not call several potentially exculpatory witnesses, failed to request that the knife be examined for fingerprints, and did not present a theory of third-party culpability.

Larsen attached thirteen exhibits to his petition, including several declarations from individuals who witnessed the events at the bar who declared that Larsen was not the individual who threw the knife. For example, Larsen submitted a declaration from James McNutt, a retired Army Sergeant First Class and former police chief. Mr. McNutt declared that he was in the parking lot of the bar with his wife on the night in question. There, he saw "a man nicknamed 'Bunker'" arguing with Mr. McNutt's stepson, Daniel Harrison. When the police began to arrive, Mr. McNutt "saw Bunker reach into the waistband of his pants. He took something out that looked like a knife. He threw it under a car that was parked to the left of my son's car." Mr. McNutt saw another man, who he later learned was Larsen, being detained and "wondered why he had been arrested." Mr. McNutt's wife, Elinore, who accompanied him that night, also declared that she "observed Bunker reach into the waistband of his pants and remove and throw a shiny object. He threw it under a car that was parked to the left of my son's car." She specifically declared that "Daniel Larsen had nothing in his hands, nor had he made any movements at this time." Both McNutts stated that they did not believe Larsen did anything on the night in question that warranted his arrest. They had moved to North Carolina and did not know that Larsen had been tried or convicted for any crime.

Larsen submitted another declaration from Jorji Owen, the girlfriend of a man named William Hewitt, also known as "Bunker." She declared that after the incident at the Gold Apple bar, "Hewitt told me that Larsen had been arrested for possession of his (Hewitt's) knife, and that he (Hewitt) had tossed the knife under a truck when the police arrived at the bar." According to Owen, Hewitt sold his motorcycle to bail Larsen out of jail "because the knife belonged to him, he was the individual who had thrown the knife when the police arrived, and he felt responsible for Larsen being in jail." Larsen also submitted a declaration from Hewitt himself, which stated: "I know that the knife was not [Larsen's], because it was mine." Hewitt stated that he "did not testify in the trial in which Daniel Larsen was convicted, because no one subpoenaed me."

Larsen raised similar claims in habeas petitions before the California Court of Appeal in March 2006 and before the California Supreme Court in ...

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