Whether 'new' evidence, as referred to in Schlup v. Delo and McQuiggin v. Perkins, means evidence that was not available at the time of trial or, under the broad reading adopted below, encompasses any evidence, including evidence known by the defendant and/or available with due diligence, not presented at trial

QUESTION PRESENTED In 1988, an Oklahoma jury convicted Karl Fontenot in the abduction and killing of Denice Haraway. The chief evidence against Fontenot was his own confession—a confession the Oklahoma Court of Criminal Appeals found, in affirming Fontenot’s convictions, was corroborated in nine critical respects. In 2016, nearly two decades after his statute of limitations under the Antiterrorism and Effective Death Penalty Act had expired, Fontenot filed a federal habeas corpus petition. The State moved to dismiss as untimely, but the district court denied the State’s motion, finding both that Fontenot could pass through the actual-innocence gateway and that every one of Fontenot’s substantive claims entitled him to relief, without allowing a merits response by the State. The Tenth Circuit affirmed. Over a dissent, the majority held Fontenot had made a credible showing of actual innocence based on “new,” “reliable” evidence. While acknowledging a circuit split on the issue, the majority concluded that Fontenot’s evidence of alleged innocence, despite the fact that it was largely available at the time of trial, was nevertheless “new” within the meaning of this Court’s actual-innocence precedents. The question presented is whether “new” evidence, as referred to in Schlup v. Delo, 513 U.S. 298 (1995), and McQuiggin v. Perkins, 569 U.S. 383 (2018), means evidence that was not available at the time of trial or, under the broad reading adopted below, encompasses any evidence, including evidence known by the defendant and/or available with due diligence, not presented at trial. ii LIST OF PROCEEDINGS Pontotoc County District Court Case No. CRF-1984-143 State of Oklahoma v. Fontenot Judgments and Sentences entered: September 25, 1985 Oklahoma Court of Criminal Appeals Case No. F-1985-769 Fontenot v. State of Oklahoma Judgment entered: August 11, 1987 Hughes County District Court Case No. CRF-1988-43 State of Oklahoma v. Fontenot Judgments and Sentences entered: June 14, 1988 Oklahoma Court of Criminal Appeals Case No. F-1988-571 Fontenot v. State of Oklahoma Judgment entered: June 8, 1994 Oklahoma Court of Criminal Appeals Case No. PC-2015-76 Fontenot v. State of Oklahoma Judgment entered: October 29, 2015 iii United States District Court for the Eastern District of Oklahoma Case No. 16-069-JHP-KEW Fontenot v. Allbaugh Judgment entered: August 21, 2019 United States Court of Appeals for the Tenth Circuit Case No. 19-7045 Fontenot v. Crow Judgment entered: July 13, 2021