Does there need to be an evidentiary hearing to determine whether a defendant is innocent?

In this case there is no need for an evidentiary hearing because petitioner fails "to show what more an evidentiary hearing might reveal of material import on his assertion of actual innocence." Gandarela v. Johnson, 286 F.3d 1080, 1087-88 (9th Cir. 2002) (the district court did not abuse its discretion in determining that an evidentiary hearing on actual innocence was unnecessary). For this reason, petitioner is not entitled to equitable tolling of the statute of limitations based on his assertion of actual innocence.

Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss be granted.