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LEE v. LAMPERT

No. 09-35276.

610 F.3d 1125 (2010)

Richard R. LEE, Petitioner-Appellee, v. Robert O. LAMPERT, Respondent-Appellant.

United States Court of Appeals, Ninth Circuit.

Filed July 6, 2010.

Attorney(s) appearing for the Case

Stephen R. Sady, Chief Deputy Federal Public Defender of Oregon, argued the cause for the petitioner-appellee and filed the briefs. Lynn Deffebach, Research and Writing Attorney, also was on the briefs.

Janet A. Klapstein, Senior Assistant Attorney General of Oregon, argued the cause for the respondent-appellant and filed the briefs. John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, Carolyn Alexander, Senior Assistant Attorney General, and Erin C. Lagesen, Senior Assistant Attorney General, also were on the briefs.

Concurrence by Judge N.R. SMITH.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether to recognize a judge-made exception to the statute of limitations for federal habeas relief in the case of a state prisoner who makes a showing of actual innocence in his original petition.

I

An Oregon state court jury convicted Richard Lee of two counts of first-degree sexual abuse and two counts of sodomy of a four-year-old named Matthew. Lee appealed, but his counsel filed the...

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