Whether a state court deprives a capital defendant due process by denying a request to present new evidence to challenge the conviction without considering the defendant's reasons for delayed review

Question Presented for Review In Scott Group’s trial, the State relied on DNA evidence to bolster the identification of the surviving victim, Sandra Lozier. Ms. Lozier’s identification needed such bolstering due to its inherent unreliability on account of the fact that she survived a gunshot wound to her head. In various statements, Ms. Lozier described her assailant inconsistently with Mr. Group’s size and appearance. In some statements, Ms. Lozier said she had lost consciousness after the assailant shot her. Yet, in other statements, Ms. Lozier said she did not lose consciousness. Trial counsel recognized that DNA evidence was important to Mr. Group’s defense, and they retained a DNA expert from Lifecodes, Dr. Michael Baird. Trial counsel told the jury in opening statement that Mr. Group had a DNA expert who would testify about contaminates that would nullify the State’s DNA evidence. Trial counsel breached that promise, however, and the jury heard no testimony from a DNA expert. The State exploited the lack of a defense DNA expert to great effect. The prosecutor misleadingly told the jury that law enforcement conclusively found Robert’s DNA on Mr. Group’s shoe, based only on the frequency that Robert’s genetic profile appears in the data base once for every 220,000 Caucasians. Mr. Group was stuck with an underdeveloped record in the state courts because his post-conviction counsel failed to investigate and present any issues off the record in support of the petition. It was not until Mr. Group’s federal habeas i counsel investigated the case that he learned Dr. Baird was available to testify, and would have testified, but for his trial counsel’s incompetent handling of this expert. The lack of a DNA expert rendered Mr. Group’s trial fundamentally unfair. Mr. Group’s federal habeas counsel obtained a sworn declaration from a DNA scientist at Wright State University, Dr. Dan Crane. Dr. Krane’s declaration establishes that the population frequency statistic offered at trial—that the genetic profile appears once for every 220,000 Caucasians—does not conclusively identify Robert Lozier as the source of the blood found on Mr. Group’s shoe. The FBI threshold for using the random match statistic to identify a single contributing DNA source is “1 in 300 billion” and the random match statistic from Mr. Group’s trial falls well short of that threshold. Dr. Krane’s declaration further demonstrates the genuine possibility of another contributor of the DNA used to convict Mr. Group. Mr. Group tried in vain to take this new evidence back to the trial court, but the United States District Court and the United States Court of Appeals for the Sixth Circuit denied him the authorization to do so. As an indigent death row prisoner, Mr. Group lacked the ability to litigate DNA issues in the trial court, pro se. It was not until Mr. Group’s present, volunteer counsel entered the picture in February 2018, that Mr. Group was able to present his new evidence in the trial court. Yet, the trial court refused to consider the reasons that Mr. Group offered to justify his new trial request. This appeal involves the substantial question of whether the state court violated with basic principles of due process when it dismissed Mr. Group’s request for a new trial without considering the reasons relevant to justify that request. ii 1. Does a state court deprive a capital defendant due process of law when it denies the defendant’s request to present new evidence to challenge the capital conviction without considering the defendant’s reasons for seeking delayed review of the new evidence? iii