Memorandum of Points and Authorities A. Preliminary - Justice Denied

On April 16, 2004, Lisker filed a petition for a writ of habeas
corpus with the United States District Court for the Central District of
California. (Exh P (Petition).) Respondent, represented by the
California Attorney General, moved to dismiss Lisker’s petition on
grounds that it was time-barred. (Exh Q (Clerk’s Docket, Lisker v.
Knowles, No. CV 04-2687) Item # 10.) Lisker opposed the motion
arguing, inter alia, that he was actually innocent and was therefore
entitled to have his claims heard on the merits pursuant to the
“miscarriage of justice” gateway of Schlup v. Dello (1995) 513 U.S. 298,
115 S. Ct. 851, 130 L. Ed.2d 808. (Exh Q: Item # 20.)
The federal court held an evidentiary hearing on Lisker’s assertion
of actual innocence on December 1, 2, 5, 6, 7, 8 and 9, 2005. (Exh Q:
Item #s 78, 79, 80, 90, 92, 93, 94.) After the hearing, the Magistrate
Judge filed a Report and Recommendation finding that in light of the
new evidence presented at the hearing, and taking into account the
trial record, no reasonable juror would find Lisker guilty beyond a
reasonable doubt, and that Lisker had thus established his actual
innocence under Schlup. (Exh B: 51, 55.) The Magistrate Judge also
ruled that Lisker’s showing of innocence entitled him to have his
claims heard on the merits. (Exh B: 50, 57.) The District Judge
adopted the Report and Recommendation in all respects. (Exh C.)
Thereafter, Lisker filed a motion to amend his federal petition to
add two new claims, a false evidence claim and a cumulative error
claim. (Exh Q: Item # 123; Exh R (Second Amended Petition).)
Respondent maintained there were state remedies available to Lisker
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