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JOHNSON v. KNOWLES

No. 07-15221.

541 F.3d 933 (2008)

Lamerle R. JOHNSON, Petitioner-Appellant, v. Mike KNOWLES, Warden, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed September 2, 2008.

Attorney(s) appearing for the Case

Mark D. Eibert, Half Moon Bay, CA, argued the cause for the petitioner-appellant and filed briefs.

Peggy S. Ruffra, Supervising Deputy Attorney General of the State of California, San Francisco, CA, argued the cause for the respondent-appellant and filed a brief; Edmund G. Brown, Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, and Gregory A. Ott, Deputy Attorney General, San Francisco, CA, were on the brief.

Before: DIARMUID F. O'SCANNLAIN, HAWKINS, and M. MARGARET McKEOWN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a claim of miscarriage of justice excuses an untimely filed habeas petition where the petitioner does not allege actual innocence.

I

A

LaMerle R. Johnson was charged in California state court with kidnap for ransom, robbery, assault with a deadly weapon, and use of a firearm. While incarcerated and awaiting trial, he learned of a murder plot between two fellow inmates. Johnson informed...

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