Whether the district court must determine the credibility and reliability of new evidence of actual innocence before assessing its legal effect

QUESTION PRESENTED Richard Arnold was convicted of sexually assaulting his son, M.A. The only substantive evidence against Arnold was M.A.’s accusation. Following Arnold’s conviction, M.A. recanted. . Arnold sought relief in state court, but it was fruitless. So, Arnold filed a federal habeas petition, but it was untimely under 28 U.S.C. § 2244(d)(1). However, Arnold argued that his petition’s untimeliness should be excused under the “actual innocence” standard, first announced in Schlup v. Delo, 513 U.S. 298 (1995). The district court wasn’t persuaded and dismissed Arnold’s petition without conducting factfinding. Arnold appealed and the Seventh Circuit remanded for factfinding so that “the credibility and reliability of the recantation may be assessed.” Arnold v. Dittman, 901 F.3d 830, 840 (7th Cir. 2018). However, on remand, the district court never found whether M.A.’s recantation was credible or reliable. Instead, it addressed whether a juror “could” plausibly find some fault with the recantation. Using this modal standard, the district court dismissed Arnold’s petition and the Seventh Circuit affirmed. The Question Presented Is: Whether, when assessing a claim of actual innocence” the district court must determine as a matter of fact whether the new evidence is credible and reliable, before determining as a legal matter, what effect such evidence would have on reasonable jurors? -1