Whether petitioner established actual innocence to overcome the untimeliness of his habeas corpus petition

QUESTIONS PRESENTED Petitioner, Saul Cervantes, is serving multiple consecutive life sentences, plus an additional 35 years to life for sentence enhancements, for his convictions on three counts of attempted premeditated murder. He has always maintained that he is innocent of the crimes and that, contrary to the state’s arguments and the decision of the California Court of Appeal, it was the driver of a different vehicle who shot the victims without his prior knowledge, and that he (Cervantes) did not have a gun. Although petitioner’s convictions were affirmed in 2005, his pro se federal habeas corpus petition was not filed until 2013. In order to overcome the statute of limitations bar, he presented evidence to show he is “actually innocent” of the crimes of which he was convicted. Specifically, petitioner submitted a sworn declaration from one of the victims of the shooting, whose testimony was most heavily relied on by the California Court of Appeal in affirming Cervantes’s convictions—and who is now an attorney—indicating that Cervantes did not shoot him or anyone and did not have a gun. Nevertheless, the district court refused to hold an evidentiary hearing and concluded that Cervantes failed to demonstrate that he was entitled to pass through the actual innocence gateway. It dismissed the petition as untimely and denied a certificate of appealability (COA). The Ninth Circuit also denied a COA. Thus, the questions presented are: 1. Whether it was at least debatable among jurists of reasons that petitioner established actual innocence, or at least warranted an evidentiary hearing on the claim, to overcome the untimeliness of his habeas corpus petition, for purposes of granting a certificate of appealability. 2. Whether the Ninth Circuit’s decision to deny a certificate of appealability without any analysis or explanation for its decision at all was so arbitrary and capricious that it deprived Petitioner of his right to due process under the Fifth Amendment or of his right to meaningful review in this Court. 1