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Name: Sistrunk v. Armenakis
Case #: 99-36000
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/30/2001
Subsequent History: None

Petitioner conceded that his habeas petition was procedurally barred but for the “Schlup gateway,” i.e. that he should be able to argue the merits of the petition because he presented evidence of innocence so strong that the court could not have confidence in the outcome of the trial. (Schlup v. Delo (1995) 513 U.S. 298.) The evidence at issue in this forcible rape of a child case was testimony of a main prosecution witness, Dr. Bays, who testified that a scientific study proved that it is rare that a child lies about sex abuse. Further, the child victim testified that the perpetrator’s penis was “bumpy” and photographs proved it was not. The appellate court here held that petitioner failed to demonstrate that he could pass through the “Schlup gateway,” as there was insufficient evidence of actual innocence. The disputed evidence does not show that petitioner did not rape the child. The victim’s testimony was plausible and corroborated. Evidence that the penis was not “bumpy” did not impeach the young minor’s testimony. J. Kozinski dissented, calling the affirmance a miscarriage of justice. No reasonable jury would have convicted petitioner in a trial free of the serious errors which here affected the witness’s credibility.