Dist.Ct. erred in dismissing as untimely defendant’s habeas petition that challenged his Wisconsin conviction on sexual assault charge that involved his son, where defendant alleged that he was actually innocent of said charge. While Dist. Ct. believed that defendant could not meet standard for actual innocence under Schlup, 513 U.S. 298, because son’s recantation was cumulative evidence that was already put before jury that convicted defendant, Dist. Ct. should have conducted evidentiary hearing to test veracity of recantation in light of other evidence supporting defendant’s conviction. Moreover, while instant petition was filed beyond one-year limitations period, defendant might be able to satisfy actual innocence exception to limitations period requirement if recantation represented truth, especially where defendant’s conviction was based in large part on son’s claims made at trial. Also, determination that recantation was cumulative evidence was erroneous, where it was inaccurate to say that recantation was before jury. However, if Dist. Ct. finds that reasonable juror could still convict defendant beyond reasonable doubt notwithstanding recantation, defendant’s habeas petition must be dismissed as untimely.
