Since the beginning of his federal action, Kuenzel has argued that he is actually innocent. But despite having expressly addressed, in its series of rulings, Kuenzel’s other arguments for equitable tolling, the district court has never addressed Kuenzel’s actual innocence claim. The phrase, “actual innocence,” does not appear in any of the district court’s relevant orders. While we do not hint that Kuenzel’s claim of actual innocence has real merit – or that he is even entitled to an evidentiary hearing on this claim – our view is that Kuenzel’s persistent reliance on this argument warrants the district court’s express acknowledgment, especially because the district court examined or mentioned Kuenzel’s other equitable tolling arguments. We cannot dispose of this case without dealing, in some way, with Kuenzel’s claim of innocence; and we are uncomfortable with ruling on this argument when the district court has made no findings or conclusions and has not even mentioned the argument.
As many may know from their own work, its important to not only look at what a court says in its opinion/order, but what it does not say. I find it curious that the district court did not even mention the actual innocence claim, since many times it is the only claim courts are remotely interested in! If anyone has more information on this claim, particularly out of evidence that was discovered post-conviction, I would appreciate it. Comments are open.