Whether 'new evidence' under the Schlup actual innocence standard requires newly discovered evidence unavailable at trial or encompasses all evidence not previously presented to the factfinder

No question identified. : United States District Court for the Eastern District of Virginia, challenging his conviction for murder following his guilty plea. See Wolfe v. Clarke, No. 1:22-cv-00700 (E.D. Va.). Wolfe filed his petition after the expiration of the statute of limitations, and his claims were otherwise procedurally defaulted. In an attempt to take advantage of the Schlup procedural “gateway” to the merits of his otherwise defaulted claims, he presented a recently signed affidavit from a witness purporting to exculpate him. But this evidence was not new: the witness had testified against Wolfe in an earlier trial, recanted, later acknowledged that his inculpatory testimony was true, recanted again and provided exculpatory testimony in a successful habeas proceeding, and finally invoked his Fifth Amendment rights prior to Wolfe’s guilty plea. The district court dismissed Wolfe’s petition, holding that the affidavit was not new evidence of innocence because its contents were known at the time of Wolfe’s guilty plea. Wolfe v. Clarke, No. 1:22-cv-00700, 2024 WL 3732434, at *2 (E.D. Va. Aug. 8, 2024). 2. The Fourth Circuit reversed. See App., infra, 1-38. The court acknowledged a circuit split on the question whether “new evidence” under Schlup means newly discovered evidence—evidence that was not available at trial—or newly presented evidence—evidence that was not presented at trial. Id. at 29. The court applied the “newly presented” standard, holding that the affidavit was new reliable evidence and that Wolfe had shown that it is more likely than not that any reasonable jury would have reasonable doubt about his guilt. Id. at 29-33, 35, 38. The court did not address Wolfe’s handwritten confession that he offered into evidence at his plea hearing. Having held that Wolfe could take advantage of the Schlup gateway to overcome his procedural default and failure to meet the statute of limitations, the court remanded for the district court to address Wolfe’s substantive claims. Jd. at 38. 3. The Director anticipates filing a petition for a writ of certiorari regarding an issue dividing the courts of appeals: whether the “new” evidence of innocence required under Schlup includes only newly discovered evidence that was not available at the time of trial or broadly encompasses all evidence that was not presented to the factfinder during trial. The resolution of this issue is important to clarifying the actual innocence standard under Schlup. 4. In the thirty years since this Court decided Schlup, the courts of appeals have continued to disagree on how to apply that precedent. There is a well-recognized, entrenched circuit split on the question whether “new evidence” means newly discovered evidence or newly presented evidence. See, e.g., Green v. Secretary, Dep’t of Corrs., 28 F.4th 1089, 1151 n.132 (11th Cir. 2022) (“[S]ome circuits require that the evidence be newly discovered, meaning it was not available or discoverable at the time of the trial, while others require that the evidence be merely newly presented, meaning its availability or discoverability at the time of trial is irrelevant.”); Fontenot v. Crow, 4 F.4th 982, 1032 (10th Cir. 2021) (“The Schlup Court did not precisely define what it meant by new reliable evidence that was not presented at trial. As a result, there is a circuit split... .” (cleaned up)); Cleveland v. Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012) (“There is a circuit split about whether the ‘new’ evidence required under Schlup includes only newly discovered evidence that was not available at the time of trial, or broadly encompasses all evidence that was not presented to the factfinder during trial, i.e., newly presented evidence.”). The Fourth Circuit’s decision places that court on the wrong side of the circuit split. 5. The Director’s counsel respectfully requests a 60-day extension of time, to and including December 5, 2025, within which to file a petition for a writ of certiorari. Counsel has