Whether new evidence of innocence obtained by subsequent diligent counsel should be deemed new evidence, even if prior counsel provided deficient representation

QUESTIONS PRESENTED In this capital case, Ray Jefferson Cromartie was convicted of malice murder and sentenced to death as the man who shot a store clerk, Richard Slysz. The robbery was committed by two men, with a third acting as getaway driver. Mr. Cromartie was convicted largely on the testimony of his co-defendant, Corey Clark, the getaway driver, Thaddeus Lucas, and two associates who claimed Mr. Cromartie admitted the shooting. Mr. Cromartie, however, has always maintained that he did not shoot Mr. Slysz. After years of silence concerning the identity of the shooter, Thaddeus Lucas has now come forward and attested in a sworn affidavit that Corey Clark admitted committing the shooting. Mr. Cromartie sought to reopen the judgment based on this new evidence of his innocence of malice murder, and proffered evidence of his diligence both from Mr. Lucas’s affidavit and from the declaration of an investigator concerning current counsel’s repeated efforts to locate and obtain information from Mr. Lucas. The lower courts denied the request to reopen the judgment on the ground that Mr. Cromartie had not been diligent in obtaining the new evidence from Mr. Lucas, because it purportedly could have been obtained by trial counsel and/or state habeas counsel. Mr. Cromartie has alleged that prior counsel provided ineffective assistance. The questions presented are as follows: 1. If a petitioner’s prior counsel provided deficient representation by failing to obtain or present evidence of innocence, should evidence obtained by subsequent diligent counsel be deemed new evidence of innocence (an issue as to which there is a circuit split)? 2. When there are material issues of fact regarding a petitioner’s diligence with respect to the presentation of new evidence of innocence, should a federal district court hold a hearing to resolve those issues? il