Richard M. Arnold v. REED A. RICHARDSON, Warden

In the
United States Court of Appeals
For the Seventh Circuit
No. 20‐2701
R ICHARD M. A RNOLD ,
Petitioner‐Appellant,
v.
R EED A. R ICHARDSON, Warden,
Respondent‐Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:15‐cv‐01524‐NJ — Nancy Joseph, Magistrate Judge.
A RGUED A PRIL 15, 2021 — D ECIDED OCTOBER 6, 2021
Before KANNE , R OVNER , and HAMILTON, Circuit Judges.
R OVNER , Circuit Judge. This case returns to us after we
remanded to the district court for an evidentiary hearing on
whether the petitioner could overcome the one‐year time bar
to filing his petition for a writ of habeas corpus, under the actual
innocence exception. After holding the hearing, the district
court determined that Arnold failed to meet the rigorous

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2 No. 20‐2701
standard for overcoming the time bar set in Schlup v. Delo, 513
U.S. 298 (1995), and dismissed the petition. We affirm.
I.
We assume familiarity with our prior opinion and focus
only on the facts and procedural history relevant to the issues
in this appeal. See Arnold v. Dittman, 901 F.3d 830 (7th Cir.
2018) (“Arnold I”). In 2008, a Wisconsin jury convicted Arnold
of repeated sexual assault of the same child, his son, M.A., who
was the principal witness against him at trial. Because Arnold
was a persistent repeater, the court was required to sentence
him to life in prison without the possibility of parole. The
judgment was entered on August 12, 2008. In October 2011, the
Wisconsin Court of Appeals affirmed both the conviction and
the denial of Arnold’s first request for post‐conviction relief.
The Wisconsin Supreme Court subsequently denied Arnold’s
petition for review.
In November 2011, after the Wisconsin Court of Appeals
had entered its ruling denying Arnold any relief, M.A. signed
a notarized affidavit in which he recanted the substance of his
trial testimony. M.A. explained that, at the time he accused his
father of sexual abuse, he had been under the supervision of a
juvenile court and was participating in a program (hereafter
“Program”) for children who sexually abused other children.
He claimed that his trial testimony had been false, and that he
had felt pressured to accuse his father in order to placate the
person running that Program. Nearly two years after M.A.
signed the affidavit, Arnold filed a pro se petition in state court
seeking a new trial on the basis of his son’s recantation. The
Wisconsin circuit court denied the petition without a hearing,

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No. 20‐2701 3
and the Wisconsin Court of Appeals affirmed. No hearing was
required, the appellate court concluded, because the motion
was legally insufficient. The appellate court held that the
affidavit was not newly discovered evidence but rather was
cumulative of evidence presented at trial that M.A. had told
others that his father had not assaulted him. The Wisconsin
Supreme Court again denied review.
On December 21, 2015, Arnold filed a federal petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254. His pro se
petition was founded on due process and a claim for actual
innocence. On the State’s motion, the district court dismissed
the petition as untimely. Under 28 U.S.C. § 2244(d)(1)(A), a
petitioner must seek habeas relief within one year of the date
that his conviction became final. Arnold’s conviction became
final on April 23, 2012, and so he had until April 24, 2013 to file
his petition, missing the deadline by more than two years. The
district court considered whether Arnold’s claim for actual
innocence could excuse the running of the limitations period,
and concluded that it did not. See Schlup, 513 U.S. at 327
(noting that a petitioner must establish that it is more likely
than not that no reasonable juror would have convicted him in
light of the new evidence of his innocence in order to overcome
the time bar). The district court reasoned that the state court
had already conducted the Schlup analysis and concluded that
the recantation affidavit would not have affected the jury’s
verdict.
On appeal, we vacated that ruling and remanded for a
hearing. We noted that Arnold had filed his petition beyond
the section 2244(d)(1) one‐year time limit, rendering his
petition untimely unless he could establish that he qualified for

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4 No. 20‐2701
an exception to the time bar. Arnold relied on his actual
innocence claim to overcome the time bar, and the framework
for evaluating that claim was established by Schlup:
A claim of actual innocence must be both credible
and founded on new evidence. Schlup, 513 U.S. at
324, 115 S.Ct. at 865. To be credible, the claim must
have the support of “reliable evidence—whether it
be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence.”
Ibid. That evidence must also be new in the sense
that it was not before the trier of fact. Ibid.; Gladney,
799 F.3d at 896, 898. The petitioner’s burden is to
show that, in light of this new evidence, it is more
likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt. Schlup,
513 U.S. at 327, 115 S.Ct. at 867; see also id. at 329, 115
S.Ct. at 868. In evaluating the claim, the court is to
conduct a comprehensive assessment that takes into
account any reliable evidence probative of peti‐
tioner’s innocence or guilt, even evidence that was
previously excluded; the court is not bound by the
rules of evidence that would govern at trial. Id. at
327–28, 115 S.Ct. at 867. It is not the court’s role to
determine independently what the petitioner likely
did or did not do; rather, its task is to assess the
likely impact of the new evidence on reasonable
jurors. Id. at 329, 115 S.Ct. at 868. Although any
delay or lack of diligence by the petitioner in pursu‐
ing his claim of actual innocence is not a bar to the
claim, it is among the factors that the court may

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No. 20‐2701 5
consider in assessing the merits of the claim.
McQuiggin, 569 U.S. at 388–400, 133 S.Ct. at 1935–36.
Arnold I, 901 F.3d at 836–37. Arnold presented a plausible claim
of actual innocence because the principal witness against him
recanted; this evidence was new in the sense that it was not
before the jury that convicted him. But no court had ever
considered the credibility and reliability of M.A.’s recantation,
and then applied the Schlup analysis to assess the likely impact
of the new evidence on reasonable jurors. We therefore
remanded “the case to the district court for an evidentiary
hearing at which the credibility of M.A.’s recantation can be
assessed along with the probable impact that the recantation
would have had on reasonable jurors. As Schlup makes clear,
any reliable evidence bearing on the veracity of the recantation
and on Arnold’s guilt or innocence may be considered in
making these assessments.” Arnold I, 901 F.3d at 842.
On remand, the district court held an evidentiary hearing
over the course of two days, hearing testimony from M.A.
himself, who was twenty‐eight years old at the time of the
hearing; Dr. Mark Goldstein, a child psychologist and expert
retained by Arnold on the subject of child sexual abuse; and
Karen B., M.A.’s former counselor in the Program. Consistent
with his affidavit, M.A. denied that his father assaulted him,
and testified that he made the accusations at the time because
he believed that was what his counselor wanted to hear. He
asserted that his counselor had great power over his life and
could (and did) arrange for him to be taken into custody for
trivial reasons. He believed that she could cause revocation of
his judicial supervision and that he would then go to prison for
five years, and so he said the things that he believed she

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6 No. 20‐2701
wanted him to say. He also claimed to have felt pressure from
his father’s probation officer to accuse his father of abuse.
Finally, he was angry at his father at the time for failing to give
him attention. He did not know at the time he made the
accusations that his father might face life in prison, and after
getting his own life in order, wanted to correct what he had
done in his father’s case. He explained that his father’s ex‐wife,
Randi Shaw, drafted the affidavit based on conversations he
had with her, and that she had driven him to a notary with two
witnesses in order to sign the affidavit.
Karen B., M.A.’s former counselor in the Program, recalled
M.A.’s name but did not recall working with him. She ex‐
plained that she was a social worker and coordinator of the
Program. In that role, she provided group and individual
treatment to troubled juveniles. She did not seek out evidence
of Program rules violations but did pass on some information
about violations to the juveniles’ social workers in certain
circumstances. She testified that she did not have authority to
revoke supervision and that she worked to develop a therapeu‐
tic alliance with the juveniles in the Program. If she suspected
that a juvenile had been a victim of a sexual assault, she would
approach the subject “gingerly,” and generally waited for the
child to raise it. She testified that she would not push a child to
disclose abuse and denied that she would ever suggest to a
child that a particular person had victimized the child.
Finally, Dr. Goldstein testified generally about the statistics
for children and adolescents who make false reports of sexual
assault. Dr. Goldstein asserted that adolescents were more
likely to falsely report sexual abuse than young children. He
noted that many false accusations were tied to custody

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No. 20‐2701 7
disputes, and he listed characteristics common to false reports
as well as factors that might motivate a child to falsely report
abuse. He explained that there were no studies on adults
recanting accusations that they made when they were adoles‐
cents, and he described the reasons why people sometimes
recanted. He had not been retained to offer an opinion on
M.A.’s credibility and declined to offer an opinion. He pointed
out aspects of M.A.’s recantation that were consistent with the
research on false allegations, and also factors that could be
consistent with the truth of the initial accusations.
In an exhaustive and careful opinion, the district court
assessed all of the evidence presented at Arnold’s original trial
and at the evidentiary hearing. Applying the Schlup standard,
the court found that the evidence from the hearing was new,
and then assessed whether it was reliable and “whether it is
more likely than not that no reasonable juror would convict
Arnold in light of the totality of the evidence.” Arnold v.
Richardson, 2020 WL 4569162, *22 (E.D. Wis. August 7, 2020)
(“Arnold II”). The court began by noting several features of
M.A.’s recantation that undermined its reliability, including
that: (1) it was generated three years after the jury trial, which
itself was three or four years after the claimed abuse, far from
the time of the actual events; (2) M.A. had appeared at a court
hearing during his father’s direct appeal only eight months
before he signed the affidavit, and had opportunities to speak
to the judge, the prosecutor and defense counsel, but he did
not profess his father’s innocence to anyone and did not sign
the affidavit until after his father lost his appeal; and (3) M.A.
himself never initiated steps to exonerate his father, instead
admitting that the recantation affidavit was the product of

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8 No. 20‐2701
Randi Shaw’s initiative. The court also noted certain inconsis‐
tencies in M.A.’s explanation for the delay in generating the
recantation affidavit, and noted possible motives for M.A. to
falsely recant that were consistent with expert testimony at trial
and at the evidentiary hearing. In analyzing each of these
features and factors, the court noted that a reasonable juror
could credit M.A.’s original trial testimony as more accurate
than the later recantation, that a reasonable juror could
question why M.A. did not exonerate his father when he had
an opportunity to do so during the appeal process, and that a
reasonable juror could conclude that if M.A. actually fabricated
the original allegations and wanted to exonerate his father, he
would have initiated the affidavit himself and then followed
through with it instead of handing it off to his father’s ex‐wife.
The court framed the analysis in terms of what a reasonable
juror could conclude based on the evidence.
The court then considered the totality of the evidence and
found that, even in light of the new evidence, a reasonable
juror was likely to find M.A.’s original trial testimony credible.
Again, the analysis was exhaustive and included evidence both
from the original trial and the evidentiary hearing as well as
the affidavit itself. The court also acknowledged that, in light
of the entire record, it is possible that a reasonable juror could
acquit Arnold. But the court correctly noted that this possibility
was not sufficient to meet the Schlup standard, which required
Arnold to “show that it is more likely than not that no reason‐
able juror could convict him.” Arnold II, 2020 WL 4569162, *25
(E.D. Wis. August 7, 2020). Because Arnold had not met that
burden, the court dismissed the petition as untimely. Id.

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No. 20‐2701 9
II.
On appeal, Arnold faults the district court for failing to
make the credibility determinations that he claims we ordered
on remand. In particular, he contends that the district court
failed to determine whether M.A.’s recantation was reliable
and credible. He asserts that the court distorted the standard
by instead considering whether a reasonable juror could find
M.A.’s recantation credible. Arnold argues that without a
finding as to whether the court itself found M.A.’s recantation
credible, there is no way for the district court or this court to
decide the reliability of the recantation in the eyes of a reason‐
able juror. Arnold summed up his criticism of the district
court’s ruling in his Reply Brief:
[R]ather than making a credibility determination,
the lower court talked about credibility in probabil‐
istic terms, saying repeatedly that a reasonable juror
“could question why …” or “could conclude that
…” or “[i]t would not be a bridge too far to conclude
that …” or “[t]his would likely indicate to a reason‐
able juror that … .” (Id.)
And yet, to probabilistically state what a jury could
have thought about M.A.’s recantation does not tell
us whether the court found that recantation to be
credible. It is, instead, the application of the actual
innocence test to Arnold’s case with an undecided
but necessary factual predicate.
Reply Brief, at 5–6.

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10 No. 20‐2701
We review de novo the district court’s decision to dismiss
Arnold’s petition for habeas relief as untimely. Simms v.
Acevedo, 595 F.3d 774, 777 (7th Cir. 2010). When a district court
has held an evidentiary hearing in a habeas proceeding, we
review its factual findings for clear error. Pidgeon v. Smith, 785
F.3d 1165, 1171 (7th Cir. 2015). As we noted above, we re‐
manded “to the district court for an evidentiary hearing at
which the credibility of M.A.’s recantation can be assessed
along with the probable impact that the recantation would
have had on reasonable jurors.” Arnold I, 901 F.3d at 842.
Arnold’s primary complaint is that the district court failed
to state whether the court itself found M.A.’s recantation
credible and instead engaged in a probabilistic determination
of whether a jury would have found it credible. But we made
clear in our original order that “[i]t is not the court’s role to
determine independently what the petitioner likely did or did
not do[.]” Arnold I, 901 F.3d at 837. Rather, Arnold was
required to demonstrate on remand that “it is more likely than
not that no reasonable juror would have found him guilty
beyond a reasonable doubt,” an inherently probabilistic
determination. Arnold I, 901 F.3d at 837. See also Schlup, 513 U.S.
at 330 (noting that the “more likely than not” standard reflects
the probabilistic nature of the court’s inquiry). And that is
exactly what the district court did, consistent with our remand
order and with Schlup’s framework for evaluating a claim of
actual innocence as a gateway to review of a habeas claim that
would otherwise be foreclosed by untimeliness:
The meaning of actual innocence … does not merely
require a showing that a reasonable doubt exists in
the light of the new evidence, but rather that no

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No. 20‐2701 11
reasonable juror would have found the defendant
guilty. It is not the district court’s independent
judgment as to whether reasonable doubt exists that
the standard addresses; rather the standard requires
the district court to make a probabilistic determina‐
tion about what reasonable, properly instructed
jurors would do. Thus, a petitioner does not meet
the threshold requirement unless he persuades the
district court that, in light of the new evidence, no
juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.
Schlup, 513 U.S. at 329.
Our recitation of the district court’s analysis demonstrates
that the court properly applied that probabilistic standard on
remand and concluded that Arnold fell short. It was not a part
of the court’s charge on remand to independently determine
whether it found M.A.’s recantation credible or reliable. The
court employed the proper standard in viewing the new
evidence through the eyes of a reasonable juror. The court
made no error of law or fact in reaching its determination, and
correctly dismissed the petition as time‐barred.
AFFIRMED.

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