Whether the actual innocence standard established in Schlup v. Delo requires courts to assess newly discovered evidence by asking whether reasonable jurors would likely have reasonable doubt regarding guilt, rather than applying a more stringent standard of proof

No question identified. : TO THE HONORABLE AMY CONEY BARRETT, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT: Pursuant to Rules 13.5 and 30.2 of this Court, Applicant Jerry S. Wilson respectfully applies for a 60-day extension of time, to and including November 3, 2023, within which to file any petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. The court of appeals denied Applicant’s petition for panel rehearing and rehearing en banc on June 6, 2023. See Attachment 2. Unless extended, the time for filing any petition for a writ of certiorari will expire on September 5, 2023. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 1. This case presents an important and recurring question concerning the legal standard for showing actual innocence sufficiently to overcome procedural default, which this Court established in Schlup v. Delo, 513 U.S. 298 (1995). Nearly thirty years since Schlup was decided, confusion remains in the circuit courts concerning the proper application of the actual innocence standard and the balancing of the entire evidentiary record in view of the newly discovered evidence. As evident from the two opinions issued by the Seventh Circuit in this case and by the split-panel result, courts often misunderstand that the actual innocence standard must be analyzed in the context of the constitutional requirement that a jury may not convict a criminal defendant unless it finds guilt beyond a reasonable doubt, a misunderstanding that stems from courts misreading Schlup to conclude that showing a likelihood that reasonable doubt would exist in the minds of reasonable jurors is insufficient to meet the actual innocence standard. See, e.g. Attachment 1 at 19-20, Attachment 3, at 19-20. Clarification by this Court is necessary to resolve this confusion. 2. Applicant Jerry Wilson is a federal inmate. Applicant was charged and convicted on one count of reckless homicide and two counts of reckless endangerment in connection with a shooting that took place in Milwaukee, Wisconsin, on May 23, 2009. At trial, the State’s case centered on the testimony of four eyewitnesses: Mr. SmithCurrin, Ms. King, Ms. Ross, and Ms. Coats. Of these, Mr. Smith-Currin was the State’s key witness, and he identified Applicant as the shooter on the stand. However, his testimony at trial was inconsistent in some respects with his testimony at Applicant’s preliminary hearing and he did not identify Applicant as the shooter to police until a month after the shooting despite being interviewed by the police on the night of the crime. Ms. King’s testimony at trial was likewise inconsistent with her prior account of events and she also did not identify Applicant as the shooter on the night of the crime. The State’s other two witnesses—Ms. Ross and Ms. Coats—recanted on the stand their prior identification of Applicant to police, explaining that they were previously pressured by police into identifying Applicant. The State was forced to impeach both Ms. Ross and Ms. Coats with their prior statements to police. In sum, as the court of appeals recognized, “the accounts of the trial witnesses varied” significantly, including as to the shooter’s height, clothing, and hair style. Attachment 1 at 6. Moreover, minimal physical evidence was collected at the crime scene and none linked Applicant to the shooting. The jury nonetheless convicted Applicant on all counts. 3. Several months after trial, in the fall of 2010, Applicant became aware of another potential eyewitness to the crime whom his trial counsel failed to locate and interview, although he did not learn her name until early to mid-2011. Applicant’s family thereafter was able to locate the new eyewitness, Lakisha Wallace, but his postconviction counsel also failed to investigate and interview her. In 2012, Applicant finally obtained an affidav