16‐2723‐pr
Hyman v. Brown


                              In the
           United States Court of Appeals
                     for the Second Circuit


                         AUGUST TERM 2017

                           No. 16‐2723‐pr

                          TULLIE HYMAN,
                         Petitioner‐Appellee,

                                 v.

                 WILLIAM D. BROWN, Superintendent,
                       Respondent‐Appellant,



           On Appeal from the United States District Court
                for the Eastern District of New York



                    ARGUED: NOVEMBER 29, 2017
                      DECIDED: JUNE 24, 2019



Before: JACOBS, RAGGI, and DRONEY, Circuit Judges.
                         ________________


       On appeal from a judgment of the United States District Court
for the Eastern District of New York (Dearie, J.) granting habeas
corpus relief from a state murder conviction, see 28 U.S.C. § 2254,
respondent challenges the district court’s determinations that (1)
petitioner made the gateway showing of actual innocence necessary
for merits review of his procedurally barred claim of ineffective
assistance of counsel, and (2) the state court’s rejection of that Sixth
Amendment claim was an unreasonable application of clearly
established Supreme Court precedent. For reasons stated herein, we
reject the gateway determination and, therefore, dismiss without
addressing the barred Sixth Amendment claim.

      Judgment REVERSED and Petition DISMISSED.

      Judge Jacobs concurs in a separate opinion.




                          RANJANA C. PIPLANI, Assistant District
                          Attorney (John M. Castellano, Assistant
                          District Attorney, on the brief), Kew Gardens,
                          New York, for Richard A. Brown, District
                          Attorney, Queens County, for Respondent‐
                          Appellant.

                          GLENN A. GARBER (Rebecca E. Freedman, on
                          the brief), The Exoneration Initiative, New
                          York, New York, for Petitioner‐Appellee.


REENA RAGGI, Circuit Judge:

      Respondent William Brown appeals from a judgment entered
on July 13, 2016, in the United States District Court for the Eastern
District of New York (Raymond J. Dearie, Judge), which, pursuant to
28 U.S.C. § 2254, grants petitioner Tullie Hyman relief from a New
York State judgment convicting him of, among other crimes, the
second‐degree depraved indifference murder of Maria Medina, the
innocent victim of a gunfight bullet gone astray. See Hyman v. Brown,
197 F. Supp. 3d 413 (E.D.N.Y. 2016). The district court concluded that


                                   2
Hyman’s conviction had been obtained in violation of the Sixth
Amendment right to effective assistance of counsel because, as the
result of a conflict of interest grounded in a fee dispute with a private
investigator, counsel failed to call the investigator as a witness at
Hyman’s trial, where he could have offered evidence to impeach the
prosecution’s lead identification witness. See id. at 464–66.

      When Hyman earlier presented this constitutional claim in a
collateral state challenge to conviction, a New York court rejected it
on a state procedural ground, as well as on the merits. See People v.
Hyman, No. 1787/00 (Sup. Ct. Queens Cty. Aug. 4, 2009) (reproduced
in App’x 3285–95). The independent procedural ruling erected a bar
to federal habeas review that Hyman concedes he cannot overcome
by showing good cause to excuse his procedural failure and ensuing
prejudice. See House v. Bell, 547 U.S. 518, 536 (2006) (collecting cases
discussing “cause and prejudice” exception to procedural bar).
Nevertheless, the law affords another narrow “gateway” to merits
review of defaulted claims for habeas petitioners who can make
credible and compelling showings of actual innocence. Id. at 538. The
district court found that Hyman satisfied this demanding standard
and, thus, reached the merits of his Sixth Amendment claim. See
Hyman v. Brown, 197 F. Supp. 3d at 463. Respondent here challenges
both this gateway finding and the district court’s identification of
Sixth Amendment error.

      On de novo review of petitioner’s actual innocence claim, see
Rivas v. Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (stating that actual
innocence determination presents “mixed question of law and fact”
reviewed de novo), we conclude that Hyman has not carried his
gateway burden. Accordingly, we vacate the challenged judgment
and order Hyman’s habeas petition dismissed.



                                   3
                                     BACKGROUND

        In reviewing a gateway claim of actual innocence, a court
“must consider all [record] evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily be
admitted under rules of admissibility that would govern at trial.”
House v. Bell, 547 U.S. at 538 (internal quotation marks omitted). Our
background discussion is, therefore, necessarily lengthy.

I.      Overview

        On the evening of March 10, 2000, Maria Medina was
performing volunteer “tenant patrol” duty in the lobby of 1540
Hassock Street, the Queens apartment building where she resided
within the Redfern public housing project.1 At approximately 7:00
p.m., a shootout erupted in the street in front of that building (“March
10 shootout”). Within minutes, more than thirty bullets were fired
from at least four different weapons. One of these bullets entered the
lobby and killed Ms. Medina.

        New York State charged four persons with crimes relating to
the March 10 shootout: Jonathan Whitmore and Derek Harris, who
were thought to have been shooting from the fence and walkway
adjoining 1540 Hassock Street toward the street; and Osimba Rabsatt
and petitioner Tullie Hyman, who were thought to have been
shooting from the street toward the building. Only Rabsatt and
Hyman stood trial. Whitmore and Harris each pleaded guilty to




1 Tenant patrol is a program whereby residents of public housing volunteer to provide
services, such as signing in visitors, to enhance the security of their homes. See Trial Tr. at
779–80; see also Engagement, N.Y.C. PUB. HOUS. AUTH., https://www1.nyc.gov/site/ny‐
cha/residents/getting‐involved‐as‐a‐resident.page (last visited June 21, 2019).


                                              4
criminal possession of a weapon and were sentenced to respective
prison terms of seven years and two years.

       At the Rabsatt‐Hyman trial, the prosecution’s theory was that,
on the night of March 10, these two men drove to 1540 Hassock Street
in a red Acura (Rabsatt) and a green Mazda (Hyman), double‐parked
the cars across from 1540 Hassock Street—with their passenger sides
toward the middle of the street and facing 1540—and proceeded to
engage in a gunfight with Whitmore and Harris. Rabsatt successfully
challenged this theory by offering alibi evidence placing him
elsewhere at the time of the gunfight. The jury acquitted him on all
counts. Not so Hyman, who did not dispute being at the shootout in
a green Mazda, but who maintained that he was an unarmed victim
of, rather than a participant in, the gunfight. Finding otherwise, the
jury returned a guilty verdict against Hyman for second‐degree
depraved indifference murder, see N.Y. Penal Law § 125.25(2);
criminal possession of a weapon in both the second and third degrees,
see id. §§ 265.03(1), (2); and first‐degree reckless endangerment, see id.
§ 120.25.2 Sentenced to a total prison term of 21 years to life for these
crimes,3 Hyman began serving his sentence in June 2002, and
remained incarcerated until October 2016, when he was released
pursuant to the July 2016 habeas judgment granting such relief unless
the state took substantial steps to retry Hyman within 90 days. Failing
to procure a stay of that order, the state released Hyman and timely
appealed.


2 The jury acquitted Hyman on one count: the second‐degree attempted murder of
Jonathan Whitmore. See N.Y. Penal Law §§ 110.00, 125.25.

3 The state court sentenced Hyman to concurrent prison terms of 21 years to life for second‐
degree depraved indifference murder, 15 years for criminal possession of a weapon in the
second degree, seven years for criminal possession of a weapon in the third degree, and
two to six years for reckless endangerment.


                                             5
II.       State Proceedings

           A.     Trial

                  1.    Trial Evidence

           To secure Hyman’s conviction, the state offered evidence
generally falling into three categories: (1) Hyman’s own statements to
the authorities, (2) eyewitness accounts of the shootout, and (3)
forensic evidence of the crime scene. Hyman offered no evidence in
defense.

                                 Hyman’s Statements

                                 i.     March 11, 2000

           On March 11, 2000, upon learning that police were looking for
him in connection with the prior night’s shootout, Hyman voluntarily
surrendered himself at the 113th precinct in Queens, New York.
Waiving his Miranda rights, Hyman admitted being present during
the shootout, but denied firing a weapon.                          To the contrary, he
reported being unarmed when he went to 1540 Hassock Street to pick
up his girlfriend, Shakina Harris4 and, there, was ambushed by men
shooting at him. Hyman then gave police a sworn statement, which
a detective read to the jury as follows:

           On Friday [i.e., March 10, 2000] when I [i.e., Hyman] came
           home from court Shakina called me and we were going
           to meet later 8:00 or 9:00. I would pick her up at her
           building, the last one. I drove down the street, the one
           way and pulled up behind a white civic. I put [on] my
           hazard indicators, took the car out of gear, put it in
           neutral and pulled the emergency brake up.

4   Shakina Harris is the sister of Derek Harris, one of the charged shooters in the case.


                                                6
         I looked over by the stores and the building. No one was
         there. Dark station wagon was backing across from me.
         Then I heard three or four shots. I looked in my door
         mirror and saw two guys coming up behind me from the
         sidewalk firing. I got low in the car. I tried to put the car
         in gear but it stalled out. I got it back on. I saw two guys
         get out of the wagon and they were firing in my angle. I
         got the car in reverse and went around the civic. I made
         a left at the light and went to my brother’s house and told
         him what happened. Grabbed some clothes. Called my
         girlfriend and left.

Trial Tr. at 1388–89.

                            ii.    March 12, 2000

         The following day, Hyman again waived his Miranda rights
and told police that he had driven to 1540 Hassock Street on March
10 in a red Acura. After Hyman stopped the car, two men emerged
from the car parked behind his and began shooting at him. Other
persons also fired at Hyman from the side of his car before he fled the
scene.

         Approximately two hours later, and after Hyman spoke with
his mother, he revised his account, telling police that he had not
driven to Hassock Street in a red Acura, although he had driven such
a car in the recent past. Rather, he had driven to Hassock Street in a
green Mazda that he “just recently bought.” Id. at 870.5




5Police recovered the green Mazda from Hyman’s aunt’s garage. They elsewhere located
a red Acura linked to Hyman by papers found therein, specifically, a benefits card and a
court summons in his name.


                                           7
                         iii.   June 8, 2000

      On June 8, 2000, Hyman testified before a grand jury,
maintaining that he went to 1540 Hassock Street on March 10 to pick
up his girlfriend; that he was unarmed; that after he parked, he “heard
multiple shots coming from the back of [his] car,” id. at 1725; that four
people fired at him, “two from the left side and two from the right
side,” id. at 1731; and that, in the course of the shooting, the glass from
the “passenger side window” of his car “popped in [his] face,” id. at
1734. Hyman also testified that he had driven to Hassock Street by
himself in a green Mazda MX6, not in a red Acura. He acknowledged
that, before acquiring the green Mazda, he had driven a red Acura,
but he said that car was not at the shootout scene. Hyman also denied
knowing Jonathan Whitmore, threatening him, or recognizing him at
the shootout scene.

                        Eyewitness Testimony

      While Hyman’s own statements thus established his presence
at the March 10 shootout as the sole occupant of a green Mazda, the
state relied on four eyewitnesses—Margaret Contreras, Lynn Burton,
Deborah McCoy, and Shaquana Ellis—to establish that Hyman was
not an unarmed ambush victim but a shooting participant in the
gunfire exchange. Each woman testified to seeing gunshots fired
from, or by the occupant of, the green Mazda, but only Ellis would
specifically identify Hyman as that shooter. Her recantation of that
identification is the basis for Hyman’s actual innocence claim.

                         i.     Margaret Contreras

      Margaret Contreras testified that she was on tenant patrol with
Maria Medina and Shereda Freeman on March 10, 2000, when she



                                    8
heard several gunshots, one of which struck Medina.6 As she and
Freeman pulled the injured Medina toward the elevator, Contreras
saw, through the lobby door, a “dark greenish” car parked in the
street. Id. at 1038. The car’s window was down, and Contreras there
saw “something silverish” that “looked like a gun but it was like a
flash.” Id. Contreras acknowledged that she did not mention the car
or any gunfire flash in her initial police interview, explaining that
“[n]o one ever asked” about “what happened outside of the
building.” Id. at 1096. She explained that she disclosed these facts
when prosecutors showed her a photograph of a car—Hyman’s green
Mazda—and asked if she had ever seen it. She told them it looked
like the car outside her building on March 10 and then recounted
what she had seen. Contreras testified that things were happening
“really fast” on the night of the shootout, id. at 1040, and that her focus
was on getting Medina to safety rather than on trying to “see
something” outside, id. at 1049. Nevertheless, she did not waver in
her testimony to seeing a flash of gunfire coming from the window of
the dark green car parked outside her building on March 10.

        Although Contreras had never told prosecutors that she could
identify anyone involved in the shootout, on cross‐examination she
stated for the first time that, on the evening of March 10, she had seen
Whitmore, her neighbor, enter 1540 Hassock Street carrying a gun.
Later that night, Whitmore knocked on Contreras’s door and told her
that he was “very sorry about all this stuff that happened.” Id. at 1084.
Contreras stated that she had not previously told anyone about seeing
Whitmore because she was worried for her 16‐year‐old son.




6Shereda Freeman would also testify at trial, but only to her efforts to assist Maria Medina.
She offered no evidence about the shootout.


                                             9
Contreras was, in fact, moved out of her building soon after the March
10 shootout.

                              ii.     Lynn Burton

        Lynn Burton testified that she was in the bedroom of her third‐
floor apartment at 1540 Hassock Street when she heard gunfire erupt
on the evening of March 10. From a window of her apartment facing
the street, Burton saw three cars double‐parked in front of the
Friendly market across the street: “a green jeep, a red color car with
dark tinted windows,” and “behind that . . . a dark colored car.” Id.
at 1594. Burton initially told police the last car was a black or dark
Altima, but, subsequently, and at trial, she identified the “dark
colored car” as Hyman’s green Mazda.7 Burton testified that she saw
“shots being fired” from “the red vehicle and the dark colored vehicle
that was behind the red vehicle,” but that she did not see who fired
them. Id. at 1594–95. What she saw “was some fire coming out of a
window.” Id. at 1628. Burton did not see anyone standing near or
leaning out of the cars. Nor did she see Whitmore, whom she knew
well because his mother lived at 1540 Hassock Street.

                             iii.    Deborah McCoy

        Deborah McCoy resided in a building across from 1540
Hassock Street.         She testified that after hearing gunshots on the
evening of March 10, she ran to the kitchen window of her seventh‐
floor apartment, from where she saw a red Acura parked in front of
what she initially described as a “black” car, but which she
subsequently stated looked like Hyman’s dark green Mazda as

7 Specifically, Burton was shown two photographs in evidence of the green Mazda that
Hyman admitted to driving to 1540 Hassock Street on March 10 and that police recovered
from his aunt’s garage. Burton testified that it looked like the car from which she had seen
shots fired on March 10.


                                            10
depicted in police photographs. Id. at 1783. McCoy testified that
shots “first came from the cars.” Id. at 1813. She identified one
shooter, standing near the driver’s side of the red car, as Osimba
Rabsatt, whom McCoy knew from high school. She saw another
man—whom she could not identify—get out of the dark car, fire a
gun, and then get back into the car. McCoy testified that she also saw
Whitmore and Harris shooting toward the cars as they ran along a
walkway toward the entry of 1540 Hassock Street. McCoy knew
Whitmore because she is his sister’s godmother and Whitmore’s
mother is godmother to McCoy’s son. McCoy telephoned 911 to
report the shootout, but did not then mention any participants by
name.8

                            iv.      Shaquana Ellis

        Shaquana Ellis testified that, at the time of the March 10
shootout, she was standing in the third‐floor hallway of 1540 Hassock
Street with two friends, Amanda Benitez and Shaquana Delain.
Through a hallway window, Ellis saw two cars pull up to the
building: a red Acura with tinted windows and a green Mazda. After
the cars “sat there” for a while, Ellis saw “Tullie,” i.e., Hyman,
“hanging out the . . . window, from the passenger side” of the green
car, “just fir[ing] off” gunshots. Id. at 1550–51. Ellis testified that she
never actually saw a gun; rather, she saw about five flashes of light,
which looked like “fire, like red come out of the gun,” coming from
Hyman’s direction. Id. at 1553. Ellis stated that she did not see
Whitmore, Harris, or anyone else at the shootout scene.




8The jury heard that nine 911 calls reported the shootout. Five calls did so generally. One
caller reported a man with a gun in front of the building. Two callers (one of whom placed
two calls) identified Whitmore as a shootout participant.


                                           11
      Ellis admitted not reporting these events to the police when
first interviewed. At that time, she told authorities she had not seen
the shooting at all. Ellis, nevertheless, denied telling friends or a
private investigator that she had not seen the shootout. She also
denied that Whitmore had paid her to incriminate Hyman, although
she acknowledged that Whitmore had corresponded with her from
prison.

                        Forensic Evidence

      Within twenty minutes of the March 10 shootout, police had
secured the area in front of 1540 Hassock Street and started to collect
evidence. Much of the ballistic evidence gathered indicated that
bullets were fired not only at, but also from, Hyman’s green Mazda.

      The recovery of four discharged .45 caliber shell casings and
fourteen discharged 9mm shell casings from the middle of Hassock
Street indicated gunshots fired in that vicinity, which was consistent
with the location of cars double‐parked there on March 10, including
Hyman’s green Mazda. Meanwhile, twelve discharged .380 caliber
shell casings were recovered from the fence and walkway bordering
the front of 1540 Hassock Street. This corresponded to Deborah
McCoy’s account of Whitmore and Harris firing gunshots at the
parked cars as the two men ran toward the building.

      Police matched most of these shell casings to firearms
recovered at the scene. Specifically, six of the twelve .380 caliber shell
casings—i.e., casings for bullets fired from 1540 Hassock Street—were
matched to a .380 caliber handgun found on the rear lawn of the
building. Whitmore would later admit firing that gun during the
March 10 shootout.        The other six .380 caliber casings went
unmatched. Meanwhile, all recovered .45 caliber and 9mm casings—


                                   12
i.e., casings for bullets fired from the vicinity of the double‐parked
cars—were matched to a .45 caliber handgun and an Intratech 9mm
semiautomatic pistol found inside the spare tire wheel well of
Whitmore’s Ford Taurus.9 At trial, the prosecution took the position
that the bullet that killed Ms. Medina came from one of these two
guns, which had been fired toward 1540 Hassock Street by Hyman
and Rabsatt.10 To explain how guns fired by Hyman and Rabsatt
wound up in Whitmore’s car, the prosecution suggested that
someone might have planted them there to divert attention from
Hyman and Rabsatt. Finally, no ballistic evidence was matched to
another 9mm handgun, found broken into eight parts in a trash
compactor inside 1540 Hassock Street.

           Police further discovered that bullets had penetrated the door
and rear lobby of 1540 Hassock Street. The height of some bullet
holes—1’10” and 1’5.75” above ground level—was consistent with
shots being fired toward the building from the window level of a car
in the street.           Bullet marks were also found in a second‐floor
apartment of 1540 Hassock Street, the Friendly market across the
street, and three parked cars.

           Meanwhile, when police subsequently recovered Hyman’s
green Mazda, they saw bullet damage concentrated on the vehicle’s
front hood, front passenger door, and right rear bumper, which was
consistent with bullets fired from the direction of 1540 Hassock Street.
There was no bullet damage to the car’s rear area or to its left side,




9Police had secured that car in the vicinity of 1540 Hassock Street on March 10, but did not
search it until a few weeks later.

10   Apparently, the state did not test the bullet killing Ms. Medina to confirm this theory.


                                               13
although Hyman had claimed that assailants had fired at him from
the rear and from both sides of the vehicle.

      Forensic examination also determined that the Mazda’s front
passenger window was open during the shootout—as some
eyewitnesses had reported—because the shattered window was
inside the door’s window track and there was a bullet hole in the door
below the track.

      B.    Conviction and Direct Appeal

      After the jury found Hyman guilty, and the case proceeded to
sentencing, Hyman’s counsel advised the court that a defense private
investigator, Kevin Hinkson, had procured a statement from Amanda
Benitez that impeached Shaquana Ellis’s trial testimony about
witnessing the March 10 shootout. Construing the disclosure as a
request for adjournment of sentence in anticipation of a formal
motion to vacate the verdict as required by N.Y. Crim. Proc. Law
§ 330.30, the trial court declined to grant such relief in light of two
prior adjournments of sentence. Thus, on May 15, 2002, it sentenced
Hyman to a total of 21‐years‐to‐life imprisonment.

      Hyman unsuccessfully appealed his conviction, first to the
Appellate Division, which unanimously affirmed, see People v. Hyman,
15 A.D.3d 417, 788 N.Y.S.2d 863 (2d Dep’t 2005), and then to the New
York Court of Appeals, which denied review, see People v. Hyman, 4
N.Y.3d 854 (2005).




                                  14
        C.     Collateral Challenges to Conviction

                1. First § 440 Motion

        On April 28, 2005, Hyman moved for collateral relief pursuant
to N.Y. Crim. Proc. Law § 440, seeking DNA testing of the 9mm
handgun recovered from Whitmore’s car. The state court denied the
motion, concluding that Hyman failed to show that DNA testing
would have resulted in a favorable verdict. See People v. Hyman, 51
A.D.3d 689, 863 N.Y.S.2d 240 (2d Dep’t 2008), denying leave to appeal,
10 N.Y.3d 960 (2008).

                2. Second § 440 Motion

        On July 7, 2008, Hyman filed a second § 440 motion based on
(1) newly discovered evidence, specifically, Ellis’s recantation of her
trial testimony; and (2) ineffective assistance of counsel in failing to
call investigator Hinkson as a trial witness to impeach Ellis. Various
affidavits were offered to support the motion.

                      a.    Kevin Hinkson

        Investigator Hinkson stated that, in anticipation of Hyman’s
trial, he had inspected the third‐floor hallway at 1540 Hassock Street
and determined that it would have been “impossible” for Ellis “to
observe the events of the shooting” from windows therein. Second
440, Exh. Q.        Hinkson reported providing defense counsel with
photographs and a video recording of the hallway supporting this
opinion.11 Also prior to trial, Hinkson provided counsel with an
unsigned statement from Amanda Benitez in which she admitted

11Only photocopies of Hinkson’s photographs were attached to his § 440 affidavit, the
original photos and videotape having been lost. Although the copies are dark, they appear
to show that the street area where the shootout occurred could be seen from the third‐floor
hallway window.


                                           15
that, contrary to what she had told police and to what Ellis had
testified at trial, Benitez and Ellis had not been at a third‐floor
window of 1540 Hassock Street at the time of the March 10 shootout.

       Hinkson stated that trial counsel never discussed any of this
evidence with him and never sought his testimony at Hyman’s trial.
Hinkson further stated that he has never been paid for his services on
Hyman’s case. While trial counsel told him that Hyman’s family
would pay Hinkson directly, Hyman’s father told Hinkson that he
had given counsel $2,500 to pay the investigator.12

                       b.     Amanda Benitez

       On March 21, 2002—approximately a week after the jury found
Hyman guilty—Benitez swore to the statement she had earlier given
Hinkson, and Hyman offered that sworn statement in support of his
second § 440 motion. Therein, Benitez admitted that she had not seen
the March 10 shootout from the third‐floor hallway window of 1540
Hassock Street. She stated that she arrived at the building only after
police were already at the scene. Benitez then went to “Donald’s”
third‐floor apartment, where Shaquana Ellis, Shaquana Delain, and
others had already gathered. Second 440, Exh. J. They stayed in the
apartment “all night because the police would not let us out.” Id.
When police came to speak with them the next morning,

       Shaquana Ellis pulled me [i.e., Benitez] aside and told me
       to lie to the police and tell them I saw what happened.
       Shaquana told me a story to tell the police about my
       seeing Tully [Hyman] shooting a gun at Jonathan
       [Whitmore]. Shaquana Ellis was a friend of Jonathan


12In a sworn affidavit, Hyman’s father, James Sanders, stated that he was “positive” he
had given trial counsel $2,500 to pay for a private investigator, although trial counsel
claimed never to have received that money. Second 440, Exh. P.


                                          16
      Whitmore and Jonathan’s friends. I never did see Tully
      that night because I was not there when everything
      happened. . . . I told the police I was not there when it
      happened and that I did not know anything. The police
      kept telling me that I did see what happened and if I did
      not tell them, I would be arrested. . . . I told them the story
      Shaquana had told me to say and they wrote it down.

Id.

                  c.     Stacey Manning

      In another affidavit, Ellis’s friend, Stacey Manning, recounted
that, in the summer of 2002, Ellis told Manning that “she [i.e., Ellis]
didn’t see who was shooting” during the March 10 gunfight, but she
falsely testified in order “to help her cousin’s baby’s father, a guy
named Jonathan Whitmore.” Second 440, Exh. T. Manning said Ellis
professed fear that authorities “w[ould] lock her up” if she now said
that she had lied. Id.

                  d.     Irwin Blye

      Irwin Blye, a private investigator retained in connection with
Hyman’s § 440 motion, submitted an affidavit stating that, on
September 7, 2005, he conducted an audiotaped interview with
Shaquana Ellis who admitted that she had not seen the March 10
shootout. Ellis said she was inside an apartment when she heard—
but did not see—the shooting occur. Ellis stated that she testified to
seeing Hyman firing a gun because she had been threatened by
“people from the neighborhood.” Second 440, Exh. U. She said that
someone called her home, told her what had happened, and what she
should tell police. See Hyman v. Brown, 197 F. Supp. 3d at 439. Ellis
told Blye that she had admitted not seeing the shootout to Amanda



                                      17
Benitez.13 She did not withdraw her statement to the police for fear
of prosecution, but she felt “‘real bad’ because Mr. Hyman does not
deserve to be in jail.” Second 440, Exh. U.

                         e.    Robert DiDio

        Hyman’s § 440 counsel, Robert DiDio, filed an affirmation
stating that Ellis had confirmed to him what she had told Blye, i.e.,
that she had not witnessed the March 10 shootout. Ellis refused,
however, to sign an affidavit to that effect and was evading a private
detective trying to locate her.

                         f.    Ruling

        The state court denied Hyman’s second § 440 motion, rejecting
his newly discovered evidence claim on the ground that Ellis had not
provided a sworn recantation of her trial testimony as required by
N.Y. Crim. Proc. Law § 440.30(1)(a). The court declined to pursue the
matter at a hearing because Ellis then resided outside the court’s
jurisdiction and, thus, could not be compelled to appear. As for
Hyman’s ineffective assistance claim, the court concluded that
Hyman had defaulted the point by not raising it on direct appeal
despite a record basis to do so. See id. § 440.10(2)(c). In any event,
the court rejected the claim on the merits, finding that Hinkson’s
affidavit did not convincingly establish that he had viewed the correct




13Ellis’s claim that it was in a threatening phone call to her home that she was told what to
tell police is at odds with Benitez’s claim that Ellis told her falsely to report seeing the
shooting on the morning of March 11 before these women had been able to leave 1540
Hassock Street. See supra at 16. Ellis’s claim that she lied because she was threatened is
also at odds with Manning’s report that Ellis told her she did so because Whitmore was
the father of her cousin’s baby. See supra at 17.



                                            18
locations in challenging Ellis’s viewpoint, and that counsel’s decision
to forgo Hinkson’s testimony may have been strategic in any event.

            3.   Coram Nobis Motion

       Hyman thereafter moved for coram nobis relief, claiming the
ineffective assistance of appellate counsel. The state court rejected the
claim on the merits. See People v. Hyman, 73 A.D.3d 1211, 900 N.Y.S.2d
918 (2d Dep’t 2010), denying leave to appeal, 15 N.Y.3d 806 (2010).

III.   Federal Habeas Proceeding

       On August 26, 2010, Hyman filed the instant § 2254 petition pro
se, raising eight grounds for vacating his state conviction. The district
court appointed counsel, who pursued only two claims: the
ineffectiveness of trial counsel and actual innocence.          Counsel
maintained that Hyman’s conviction had been obtained in violation
of the Sixth Amendment because his trial attorney had operated
under a conflict of interest grounded in a fee dispute with investigator
Hinkson, which resulted in the attorney not calling Hinkson as a trial
witness to impeach Shaquana Ellis’s identification. Recognizing that
this Sixth Amendment claim was barred from federal review because
the state court had rejected it, in the first instance, on a state
procedural ground, and conceding that Hyman could not excuse the
default through a showing of good cause and prejudice, counsel
attempted to lift the bar by making a gateway showing of Hyman’s
actual innocence. See Schlup v. Delo, 513 U.S. 298, 314–15 (1995).

       To make this gateway showing, and to demonstrate a Sixth
Amendment violation, Hyman relied both on evidence proffered in
support of his second § 440 motion (already discussed supra at 15–18)
and on evidence developed at a three‐day hearing conducted by the
district court in December 2015 and January 2016.

                                   19
      A.     Hyman’s Habeas Hearing Evidence

             1.   Shaquana Ellis

      With the benefit of both court‐appointed counsel and a promise
from the Queens District Attorney not to prosecute her for perjury at
Hyman’s trial, Ellis testified in the district court that she did not
witness the March 10 shootout and, thus, lied in testifying that she
had at Hyman’s trial. Ellis stated that, on March 10, she was outside
1540 Hassock Street when she saw Hyman pull up to that building in
a green car, but she did not see him carrying or firing a gun. When
she heard gunshots, Ellis ran into the building, going to Apartment
3A, where she saw Amanda Benitez and Shaquana Delain. Ellis said
that her trial testimony, professing to have been with these women at
the hallway window when the shooting occurred, was untrue. The
only thing she saw from the hallway window on the night of March
10 was the lights of emergency vehicles responding to the shooting.

      Ellis stated that she falsely testified to witnessing the shooting
because “my life and my family life was threatened.” Habeas Hearing
Tr. at 36. Ellis explained that, as she was walking home alone at
approximately 2:00 a.m. on March 11, an unknown individual, who
“had a hoodie and a bandana around [his] face,” exited a vehicle that
had pulled up beside her and pointed a gun at her face. Id. The man
told Ellis that if she “didn’t go and point Tullie out in a lineup, that
they were going to come kill [her] and [her] family.” Id. The hooded
individual, along with the car’s driver, instructed Ellis to tell police
that there were red and green cars at the shootout. Ellis said that she
herself fabricated the detail about seeing flashes coming from
Hyman’s hands to make her account “convincing.” Id. at 72.




                                   20
         The      district      court,       whose        opinion        carefully        details
inconsistencies and implausibilities in Ellis’s testimony, found her to
be a “facile liar” and observed that “several features of [her]
testimony were effectively undermined on cross‐examination,”
notably, her account of the threat she claimed to have received the
night of the shooting. Hyman v. Brown, 197 F. Supp. 3d at 445, 461.
Nevertheless, the court concluded that the “critical admission” that
she had not seen the shootout or Hyman firing a weapon, “rings very
true,” a conclusion reinforced by “other” corroborating evidence and
by the state’s failure to “impugn[] Ellis’s motive for recanting.” Id. at
461 (emphasis in original).

                 2.    Amanda Benitez

         Amanda Benitez testified that neither she nor Ellis arrived at
1540 Hassock Street until after the shooting was over and police
already had secured the crime scene. Benitez did not speak with Ellis
until the morning after the shooting, when Ellis said that her
boyfriend, Shah, wanted Ellis and Benitez to tell police “that Tullie
[Hyman] was the shooter,” Habeas Hearing Tr. at 132, that the cars
involved were green and red, and that Hyman “was hanging out the
car shooting,” id. at 136. Ellis said she was going to tell this story
because she did not want Shah to go to jail, which led Benitez to think
that Shah might have been involved in the shootout.14 Benitez told
Ellis she did not want to give this story, and when police interviewed
Benitez, she stated that she did not know anything about the shooting
because she did not see it. Only after police insisted that she must
know something, did Benitez tell the story Ellis had given her, making
clear that she had no personal knowledge of events, but was reporting

14 This is the third motive identified for Ellis’s false testimony in the state trial, Ellis herself
ascribing it to death threats and Manning reporting Ellis’s wish to help Whitmore, the
father of her cousin’s baby.


                                                21
only what she had heard. Benitez claimed that a disclaimer to this
effect was written at the top of her police statement when she signed
it, even though no such statement appeared on the signed document
offered into evidence at the hearing.

      The district court observed that while, “[i]n many respects,
Benitez exuded credibility,” her testimony was “problematic” in its
“selective disavowals” of certain prior statements and the “patent
incredibility” of her claim to have signed a statement for the police
containing a now‐missing disclaimer. Hyman v. Brown, 197 F. Supp.
3d at 462. On balance, the district court concluded that Benitez’s
“hearing testimony reliably support[ed] the narrow point for which it
was offered, [i.e.,] as independent proof that Ellis was not present
during the shooting and thus as corroboration of the basic premise of
the recant.” Id.

            3.     Shaquana Delain

      Shaquana Delain, who had grown up with Ellis and Benitez,
testified that, on the night of March 10, 2000, she was not with Ellis
and Benitez in the third‐floor hallway as Ellis had testified at trial.
Rather, Delain was inside an apartment at 1540 Hassock Street. She
heard no gunshots and learned about the shootout only when a
building resident told her about it. The district court found Delain’s
testimony wholly believable. See id. at 452.

             4.     Kevin Hinkson

      Finally, the district court heard Kevin Hinkson testify to why
he concluded it would have been impossible for anyone to have
witnessed the shootout from the third‐floor hallway.        The court
observed that this testimony “essentially track[ed] the substance of
[Hinkson’s] 440 affidavits” and did not “add materially to the actual

                                  22
innocence analysis.” Id. The court did, however, rely on Hinkson’s
testimony in addressing the merits of Hyman’s Sixth Amendment
claim.

         B.    Respondent’s Evidence

         In rebuttal, respondent offered evidence developed during the
Medina murder investigation but not introduced at trial, specifically,
statements inculpating Hyman by shooter Jonathan Whitmore and
eyewitness Joseph Howard.15

               1.     Jonathan Whitmore

         In a written statement to the police dated March 11, 2000,
Whitmore admitted firing gunshots at Hyman the prior evening, but
characterized his actions as defensive. Whitmore stated that he had
been afraid of Hyman for some weeks after a friend told him about a
note left on another friend’s car stating, “I hope you[‘re] bulletproof,”
signed, “red Ac.” Habeas Exh. G‐14a. Although Whitmore never saw
the note, he interpreted it as a threat to himself, understanding “red
Ac” to refer to Hyman’s red Acura and believing that Hyman was
upset by Whitmore “trying to talk to his girl.” Id.

         In a videotaped interview the same day, Whitmore stated that
he had never met Hyman, but knew that he had owned a red Acura
and recently acquired a green Mazda MX6. In the weeks before the
shootout, Whitmore’s friends told him that Hyman was driving
around 1540 Hassock Street looking for Whitmore. Although he
initially tried to hide whenever he saw the red Acura, Whitmore
eventually decided to protect himself and, toward that end, placed a


15Whitmore’s statements were held inadmissible at the Hyman‐Rabsatt trial pursuant to
Bruton v. United States, 391 U.S. 123 (1968).


                                         23
.380 caliber gun inside a box, inside a bag, just over the fence in front
of 1540 Hassock Street.

        Whitmore stated that, on the evening of March 10, 2000, he was
outside 1540 Hassock Street, talking with Shaquana Delain and
“Kim,” when he saw a red Acura and green Mazda MX6 arrive at the
building, “the green car in front and the red car [] behind it.” Habeas
Exh. K at 9. As Whitmore told the women to run inside, Hyman and
another person began firing at Whitmore through the open front
passenger window of the green car. Whitmore did not see what guns
the men were using and, therefore, “[c]ouldn’t say this was a 9mm or
that was a .45.” Id. at 23. What he did see was Hyman’s face and arm
extending out of the window, then lights and sparks. Whitmore
retrieved his own gun and “just blast[ed] back,” emptying a seven‐
shot clip. Id. at 10. Running inside the building as he fired, Whitmore
went to his mother’s apartment and threw the gun out a window.

        The district court found Whitmore’s accounts “generalized,
unsubstantiated[,] . . . [and] patently incredible.” Hyman v. Brown, 197
F. Supp. 3d at 456. It observed that Whitmore “fail[ed] to offer any
plausible basis” for interpreting the note as “a threat to him,” much
less one requiring him to arm himself for a gunfight. Id. at 458.
Further, his “self‐serving” statements were in “stark conflict” with
other evidence as well as the prosecution’s trial theory. Id. For
example, Whitmore placed himself in the company of two women
when the shooting began, making no mention of Derek Harris, whom
the prosecution had portrayed as his confederate in the shootout.16
Also, Whitmore’s placement of the green Mazda ahead of the red

16As recounted supra at 22, the district court found Shaquana Delain credible in testifying
that she was inside an apartment at 1540 Hassock Street when the March 10 shootout
occurred.



                                           24
Acura conflicted with trial testimony from Ellis, Burton, and McCoy,
which placed the cars in reverse order. And his professed sighting of
two persons in the Mazda was at odds with Ellis’s trial testimony,
which placed Hyman alone in the vehicle. Finally, the district court
thought it more than mere coincidence that Whitmore, in disavowing
knowledge of the type of guns fired from the cars, mentioned the
caliber of two guns actually used and later found in his car. Thus, the
district court concluded that “the prosecution’s resort to Whitmore’s
statement at the gateway hearing as a sort of smoking gun” rebutting
Hyman’s actual innocence claim “is difficult to explain; if introduced
to rational jurors, their reaction would have to be an even further loss
of confidence in the overall investigation.” Id.17

               2.     Joseph Howard

        On March 11, 2000, Joseph Howard told police that he was
walking out of 1540 Hassock Street shortly after 7:00 p.m. the previous
night when he saw a red, four‐door Acura with tinted windows stop
outside the building approximately 20 feet from him. Howard saw
three African‐American men in the vehicle, one of whom exited the
passenger side and began shooting what appeared to be a .45 caliber
or 9mm handgun.



17The conclusion is not ineluctable. The car‐order discrepancy seems of little import to
Whitmore’s credibility as there is no question that he viewed the shootout and Hyman
himself admits that he was at the scene in his green Mazda. Further, because Ellis now
admits that she did not see the shootout, her testimony cannot impeach Whitmore or
anyone else. Nevertheless, Hyman himself stated that he was alone in the green Mazda at
the shootout, not with another person as Whitmore recalled. But Hyman’s admission
corroborates Whitmore, at least to the extent he placed Hyman in the green Mazda at the
shootout. And if Burton’s and McCoy’s testimony as to the cars’ order casts doubt on
Whitmore’s recollection as to that fact, these witnesses support Whitmore’s identification
of Hyman as a shooter: Burton, because she saw gun flashes coming from the green car,
and McCoy because she saw gunshots fired by a person who briefly exited the green car.
See supra at 10–11.


                                           25
        In a second interview four days later, Howard stated that he
was actually at a nearby bus stop, approximately 50 feet from the red
Acura, when he saw two men exit the car. Howard heard twenty to
thirty gunshots exchanged. He then saw the two gunmen return to
the Acura, which sped away.

        From a photo array—no longer available for review at the
habeas hearing—Howard identified Hyman as one of the March 10
shooters. In neither interview did Howard mention seeing a green
car. Rather, he reported seeing a black jeep with tinted windows
following directly behind the Acura, as if the two cars were together.
But he did not state that he saw any gunshots fired from or by persons
in that car.

        The district court concluded that “no rational factfinder would
assign significant weight to” Howard’s statements because, despite
his photo‐array identification of Hyman as one of the shooters, “his
story conflicts too materially with Ellis’s for a jury to accept a
prosecutor’s decision to offer both his and her accounts.” Id. at 459.18
The court further observed that “the dark car Howard says he saw
behind the red Acura was a Jeep, which cannot plausibly be confused
with a green Mazda MX6, a sports car.” Id.19 In any event, the district
court noted that respondent could not offer “a definite reason” for not
calling Howard as a trial witness, reporting only that he was “‘very,
very difficult to find at the time of the investigation and not very
cooperative.’” Id. at 458 (quoting Habeas Hearing Tr. at 5–6).



18 Whatever concerns Howard’s account might raise, inconsistency with Ellis’s trial
testimony would not appear to be one of them once the district court credited her
testimony that she had not, in fact, seen the March 10 shootout.

19 Hyman himself reported seeing a Jeep on Hassock Street at the time of shootout, and his
statements leave no doubt as to the presence of his green Mazda.


                                           26
        C.   The District Court’s Ruling

             1.   Actual Innocence

        In a 91‐page opinion reviewing the above evidence in detail, the
district court ruled that Hyman had made the gateway showing of
actual innocence necessary to lift the procedural bar to habeas review
of his Sixth Amendment claim. Insofar as the gateway standard
required Hyman to adduce credible new evidence of innocence, the
district court ruled that he carried that burden simply through the
Manning, Blye, and Sanders affidavits offered in support of his
second § 440 motion. See id. at 461. Each of those affidavits cast doubt
on Shaquana Ellis’s trial testimony professing to have witnessed the
March 10 shootout. In any event, Hyman carried his burden through
further new evidence: the hearing testimony of Ellis, Benitez, and
Delain, the first two of whom were credible, if not in whole, at least
on the “narrow” proposition that Ellis was not present during the
shooting and, thus, could not identify Hyman as a participant. Id. at
462.

        The district court ruled that this new evidence made a
compelling showing of innocence because “unless Ellis’s [trial]
testimony was believable, there was essentially no case against
Hyman.” Id. The district court further concluded that Ellis’s recant
“would likely breathe new life into the defense theory that she and
other witnesses may have slanted their accounts to promote the
theme that Whitmore was the victim.” Id. at 463. Thus, the district
court concluded that the new evidence made it “‘more likely than
not’” that “‘any reasonable juror would have a reasonable doubt’
about Hyman’s guilt.” Id. at 462 (quoting House v. Bell, 547 U.S. at
538).



                                   27
            2.   Sixth Amendment Claim

      As to Hyman’s Sixth Amendment claim, the district court
concluded that the state court unreasonably applied both prongs of
Strickland v. Washington, 466 U.S. 668 (1984), in denying Hyman relief
from judgment.      At the objectively‐reasonable‐conduct prong of
inquiry, the district court ruled that Strickland did not permit the state
court to conclude that trial counsel’s decision not to call Hinkson
could have been reasonable strategy because “there is no articulable,
reasonable, strategic reason” for counsel not to have introduced
Hinkson’s sightline findings. Hyman v. Brown, 197 F. Supp. 3d at 464.
The district court thought that conclusion only reinforced by the fact
that counsel was then operating under an “actual conflict of interest,”
i.e., a fee dispute with the investigator. Id. at 466 (internal quotation
marks omitted). At the prejudice prong of inquiry, the district court
faulted the state court for “fail[ing] to appreciate the pivotal role
Ellis’s testimony played in the state’s case,” which meant that, “had
counsel successfully impeached Ellis” with Hinkson’s findings,
“there is a more than reasonable probability that the result of the
proceeding would have been different.” Id.

                              DISCUSSION

I.    The Actual Innocence Gateway

      As the district court recognized, Hyman’s actual innocence
claim plays a “procedural, not substantive” role in this case. Rivas v.
Fischer, 687 F.3d at 541. Even if successful, the claim cannot itself
afford Hyman habeas relief from his state conviction. It can only open
a gateway to federal review of an otherwise procedurally barred Sixth
Amendment claim that, if itself successful, could afford him relief. See
Schlup v. Delo, 513 U.S. at 314.


                                   28
        This is not to minimize the importance of an actual innocence
claim. “[C]oncern about the injustice that results from the conviction
of an innocent person has long been at the core of our criminal justice
system,” both state and federal. Id. at 325. But within that system,
“trial is the paramount event for determining the guilt or innocence”
of an accused. Herrera v. Collins, 506 U.S. 390, 416 (1993). An accused
enters trial with “a presumption of innocence” and a right to “insist
that his guilt be established beyond a reasonable doubt.” Id. at 398.
Once guilt is so established, however, a federal habeas court will not
relitigate the question of guilt for a state defendant who protests his
actual innocence. See Rivas v. Fischer, 687 F.3d at 540 & n.34 (observing
that Supreme Court “has never explicitly recognized the existence of
a freestanding actual innocence claim”). Rather, a federal habeas
court will review state convictions for constitutional error. See 28
U.S.C. § 2254.20

          The law, nevertheless, affords an actual innocence gateway
claim     because        “the     existence        of   a    concededly         meritorious
constitutional violation is not in itself sufficient . . . [to] allow a habeas
court to reach the merits of a barred claim.” Schlup v. Delo, 513 U.S. at
316. Usually, that bar will be lifted only if a petitioner demonstrates
good cause to excuse his default and ensuing prejudice. See House v.
Bell, 547 U.S. at 536 (collecting cases). Even in the absence of that
showing, however, the law recognizes that, in a “narrow class of

20Actual innocence is “‘not itself a constitutional claim’”—except perhaps when raised in
the context of an Eighth Amendment challenge to a capital sentence. Schlup v. Delo, 513
U.S. at 315 (quoting Herrera v. Collins, 506 U.S. at 404); cf. Moore v. Dempsey, 261 U.S. 86, 87–
88 (1923) (observing that issue on habeas review “is not the petitioners’ innocence or guilt
but solely the question whether their constitutional rights have been preserved”). In
Herrera, the Supreme Court presumed, without deciding, that the Eighth Amendment
prohibition of cruel and unusual punishment would preclude the execution of a defendant
who made a “truly persuasive” demonstration of actual innocence. 506 U.S. at 417
(concluding that defendant failed, in any event, to make that showing).



                                              29
cases,” there remains the risk of “a fundamental miscarriage of
justice” if the defaulted constitutional claim is not heard. Schlup v.
Delo, 513 U.S. at 315 (internal quotation marks omitted). That narrow
class of “truly extraordinary” cases consists of those presenting
credible and compelling claims of actual innocence. Id. at 338; see
Herrera v. Collins, 506 U.S. at 404 (“[F]undamental miscarriage of
justice exception[] is grounded in the ‘equitable discretion’ of habeas
courts to see that federal constitutional errors do not result in the
incarceration of innocent persons.”); Murray v. Carrier, 477 U.S. 478,
496   (1986)   (limiting   “miscarriage     of   justice”   exception   to
“extraordinary case[s], where a constitutional violation has probably
resulted in the conviction of one who is actually innocent”). Thus, a
state prisoner who “seek[s] access to a federal habeas court in the face
of a procedural obstacle,” and who cannot overcome that obstacle by
showing cause and prejudice, “must advance both a legitimate
constitutional claim and a credible and compelling claim of actual
innocence.” Rivas v. Fischer, 687 F.3d at 540 (emphases in original).

      The petitioner’s burden in making a gateway showing of actual
innocence is deliberately “demanding.” House v. Bell, 547 U.S. at 538;
see Schlup v. Delo, 513 U.S. at 324 (observing that actual innocence
claims are rarely successful); accord McQuiggin v. Perkins, 569 U.S. 383,
386, 401 (2013) (“stress[ing] that the Schlup standard is demanding”
and cases satisfying it “rare”). It requires, first, that petitioner adduce
“new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. at
324. In addition to being reliable, i.e., credible, the evidence must be
compelling.     This second requirement demands “evidence of
innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the trial was


                                    30
free of nonharmless constitutional error.” Id. at 316; accord Rivas v.
Fischer, 687 F.3d at 541.21

        The standard’s demand for “evidence of innocence,” Schlup v.
Delo, 513 U.S. at 316 (emphasis added), references “factual innocence,
not mere legal insufficiency,” Bousley v. United States, 523 U.S. 614, 624
(1998); accord Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also
Doe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (Sotomayor, J.) (“As
Schlup makes clear, the issue before [the] court is not legal innocence
but factual innocence.”). The new evidence need not demonstrate
factual innocence to an “absolute certainty.” House v. Bell, 547 F.3d at
538; accord Rivas v. Fischer, 687 F.3d at 542. But it must be sufficiently
credible and compelling to allow a federal court to conclude that
“more likely than not, in light of the new evidence, no reasonable
juror would find [petitioner] guilty beyond a reasonable doubt—or,
to remove the double negative, that more likely than not any
reasonable juror would have reasonable doubt.” House v. Bell, 547
U.S. at 538; see Schlup v. Delo, 513 U.S. at 327; Rivas v. Fischer, 687 F.3d
at 541.

        As this court has recognized, this standard is “somewhat
cryptic” in marrying a seemingly absolute requirement (no
reasonable juror) to a probabilistic one (more likely than not). Rivas
v. Fischer, 687 F.3d at 541 (citing Schlup v. Delo, 513 U.S. at 339
(Rehnquist, C.J., dissenting) (characterizing standard as “classic
mixing of apples and oranges”)). Nevertheless, this court has located


21While this gateway standard is demanding, it is less than what would be required to
support a free‐standing claim of actual innocence. See Schlup v. Delo, 513 U.S. at 316
(observing, by reference to Herrera v. Collins, 506 U.S. 391, that, assuming actual innocence
claim could support Eighth Amendment challenge to capital sentence, “evidence of
innocence would have had to be strong enough to make [defendant’s] execution
constitutionally intolerable even if his conviction was the product of a fair trial” (emphasis
in original) (internal quotation marks omitted)).


                                             31
some guidance for its application in contrasts that the Supreme Court
has drawn between the Schlup standard and other familiar ones. See
id.

        Notably, Schlup emphasizes that “actual innocence . . . does not
merely require a showing that a reasonable doubt exists in the light
of the new evidence, but rather that no reasonable juror would have
found the defendant guilty.” 513 U.S. at 329. Further, a “more likely
than not” showing as to what “no reasonable juror would have
found” requires “a stronger showing than that needed to establish
prejudice,” but not so strong as that demanded by the “‘clear and
convincing’ standard.” Id. at 327; see Rivas v. Fischer, 687 F.3d at 541.22

        Further, the Court has stressed that Schlup’s actual innocence
standard does not equate to the sufficiency‐of‐the‐evidence standard
in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson asks whether the
trial evidence, viewed in the light most favorable to the prosecution,
“could” allow any reasonable trier of fact to find a charged crime
proved beyond a reasonable doubt. Id. By contrast, Schlup’s actual
innocence standard considers a different “mix of evidence” from a
different “vantage point.”               Rivas v. Fischer, 687 F.3d at 542.
Specifically, a reviewing court assessing the probability of actual
innocence is not limited to the trial record. To the contrary, it “must
consider all the evidence, old and new, incriminating and
exculpatory,” House v. Bell, 547 U.S. at 538 (internal quotation marks
omitted), and, in doing so, “is not bound by the rules of admissibility


22Compare Strickland v. Washington, 466 U.S. at 694 (holding that, to demonstrate prejudice,
defendant must show “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different”), with Sawyer v. Whitley, 505 U.S.
333, 336 (1992) (holding that petitioner must show “by clear and convincing evidence that,
but for a constitutional error, no reasonable juror would have found the petitioner” guilty
(internal quotation marks omitted)).



                                            32
that would govern at trial,” Schlup v. Delo, 513 U.S. at 327. This is
because, at the gateway stage of inquiry, a habeas court’s task is not
to identify trial error or to delineate the legal parameters of a possible
new trial. It is to identify those cases in which a compelling showing
of actual innocence would make it a manifest injustice to maintain
conviction unless it was free of constitutional error.              Thus,
incriminating evidence obtained in the course of an unlawful search,
or custodial admissions made in the absence of Miranda warnings,
may well be inadmissible at trial. Nevertheless, such evidence is
properly considered in assessing factual innocence, with the manner
of procurement informing reliability and relevance and, therefore,
weight.

      The district court concluded otherwise: “all the evidence” does
not mean evidence “unquestionably . . . available” to the prosecution
at the time of trial but “clearly inadmissible” or simply not offered.
Hyman v. Brown, 197 F. Supp. 3d at 454. In support, it cited Schlup’s
quotation of the factual innocence standard proposed in a law review
article by Judge Friendly for all federal habeas review:

      The habeas court must make its determination
      concerning the petitioner’s innocence in light of all the
      evidence, including that alleged to have been illegally
      admitted (but with due regard to any unreliability of it)
      and evidence tenably claimed to have been wrongly excluded
      or to have become available only after the trial.

Schlup v. Delo, 513 U.S. at 328 (quoting Henry J. Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV.
142, 160 (1970)) (emphasis added). The district court construed the
highlighted phrase to limit a habeas court’s consideration of evidence
known, but not offered, at trial, to evidence that might have been
wrongfully excluded. See Hyman v. Brown, 197 F. Supp. 3d at 455


                                   33
(explaining why Whitmore’s confession inculpating Hyman, and
Howard’s out‐of‐court identification of Hyman, should not be
considered in assessing Hyman’s actual innocence claim—although
concluding that, even on consideration, the claim succeeded). We
cannot agree.23

        The plain language of the sentence indicates that Judge
Friendly, and in turn the Supreme Court, were emphasizing the
absence of evidentiary limits on actual innocence review by
explaining that “all evidence, includ[es]” even evidence illegally
admitted at or wrongfully excluded from trial. See, e.g., P.C. Pfeiffer
Co. v. Ford, 444 U.S. 69, 77 n.7 (1979) (construing “including” to mean
part of larger group (citing Webster’s New Collegiate Dictionary 581
(1973))). Indeed, it would make no sense to suggest that an actual
innocence assessment could be informed by illegally admitted
evidence but not by properly excluded evidence. They are opposite
sides of the same coin and equally probative of actual innocence (or
guilt). Much less does it make sense to determine actual innocence
from illegally admitted evidence but not from admissible evidence
that the prosecution chose not to offer, whether because it seemed
duplicative of, or simply less persuasive than, evidence now called
into question by petitioner’s new evidence.

        Nor do we draw—as the district court did—an inference that
Schlup was limiting its own pronouncement freeing actual innocence
inquiries from rules of admissibility by following it with the quoted
language from Judge Friendly. See Hyman v. Brown, 197 F. Supp. 3d
at 455. In Kuhlmann v. Wilson, a plurality of the Court, after quoting

23As indicated infra at 55, we accord the Whitmore/Howard evidence little weight, except
to note that it does not support Hyman’s actual innocence claim. We here clarify only that
a court is not barred from considering such evidence because it was properly excluded
from, or available but not offered at, petitioner’s original trial.


                                           34
the same language from Judge Friendly, followed it with the
unqualified conclusion that, “[t]hus, the question whether the
prisoner can make the requisite showing must be determined by
reference to all probative evidence of guilt or innocence.” 477 U.S. 436,
455 n.17 (1986) (emphasis added).

      Accordingly, we construe the Supreme Court’s actual
innocence precedents to mean what they say, i.e., that reviewing
courts should assess actual innocence claims in light of “all the
evidence” regardless of admissibility but with proper consideration
for the weight the evidence can bear in light of relevance and
reliability. See House v. Bell, 547 U.S. at 538; Schlup v. Delo, 513 U.S. at
328; Kuhlmann v. Wilson, 477 U.S. at 455 n.17.

      Nevertheless, a challenge arises in making an actual innocence
assessment from “all the evidence” because Schlup requires adherence
to the principle, “firmly established in our legal system,” “that the line
between innocence and guilt is drawn with reference to a reasonable
doubt.” Schlup v. Delo, 513 U.S. at 328. Moreover, it is not the court’s
“independent judgment as to whether reasonable doubt exists” that
is determinative. Id. at 329. Rather, the court’s task is to “make a
probabilistic   determination     about    what    reasonable     properly
instructed jurors would do.” House v. Bell, 547 U.S. at 538 (internal
quotation marks omitted); accord Rivas v. Fischer, 687 F.3d at 542
(observing that Jackson’s use of the word “could” focuses inquiry “‘on
the power of the trier of fact to reach its conclusion,’” whereas Schlup’s
“use of the word ‘would’ . . . ‘focuses the inquiry on the likely behavior
of the trier of fact’” (quoting Schlup v. Delo, 513 U.S. at 330 (emphasis
added in Rivas))). Presumably, properly instructed jurors would be
told not to consider inadmissible evidence. Nevertheless, given the
emphasis the Supreme Court has placed on assessing actual



                                    35
innocence claims in light of “all the evidence . . . without regard to . .
. admissibility,” House v. Bell, 547 U.S. at 538, we do not interpret its
reference to “properly instructed jurors” as a limitation on the
evidence to be considered by the court. Rather, we understand the
phrase to signal that the habeas court should assume the jury has been
properly instructed as to the elements of the charged crime and the
prosecution’s burden of proof when, upon reviewing the totality of
the evidence, the court decides whether it is “more likely than not, in
light of the new evidence, [that] no reasonable juror would find [the
defendant] guilty beyond a reasonable doubt.” Id.; see Schlup v. Delo,
513 U.S. at 331 (referencing juror “conscientiously following the
judge’s instructions requiring proof beyond a reasonable doubt” in
reaching conclusion that no reasonable juror, so instructed, would be
likely to vote for guilt if new evidence there adduced were found
reliable on remand).

      Applying these principles here, we conclude that Hyman has
not made a gateway showing of actual innocence.

II.   Applying the Gateway Standard

      A.     Respondent’s Unpersuasive Challenges

      In applying the gateway standard here, we begin by explaining
why two of respondent’s challenges to the district court judgment do
not persuade.

             1.    There Are No Categorical Limits on the Types of
                   Evidence that Can Support a Claim of Actual
                   Innocence

      The district court found credible and compelling new evidence
that effectively impeached Shaquana Ellis’s trial identification of



                                   36
Hyman as a participant in the March 10 shootout. At the habeas
hearing, Ellis herself recanted her trial testimony, admitting under
oath that she did not see the shootout.          That admission was
corroborated by the sworn testimony or affidavits of six persons.

      Respondent argues that, even if credible, impeachment
evidence cannot be compelling because it does not fall within any of
the three categories of “new reliable evidence” identified in Schlup.
513 U.S. at 324 (stating that petitioner must present “new reliable
evidence—whether it be [1] exculpatory scientific evidence, [2]
trustworthy eyewitness accounts, or [3] critical physical evidence”).
Respondent’s argument is defeated by House v. Bell, which instructs
that Schlup’s list is illustrative, not exhaustive. See 547 U.S. at 537
(quoting Schlup list, but observing that “habeas court’s analysis is not
limited to such evidence”); accord Munchinski v. Wilson, 694 F.3d 308,
338 (3d Cir. 2012) (observing that Schlup’s list is not exhaustive of
evidence that can be reliable); Wolfe v. Johnson, 565 F.3d 140, 164 n.32
(4th Cir. 2009) (same); Souter v. Jones, 395 F.3d 577, 593 n.8 (6th Cir.
2005) (same).

      Thus, we conclude that while certain evidence may bear more
weight than other evidence in demonstrating factual innocence, there
are no categorical limits on the types of evidence that can be offered
to do so.

            2.    The District Court Did Not Clearly Err in Finding
                  Ellis’s Recantation Credible

      Alternatively, respondent faults the district court for finding
Ellis’s recantation credible. We review a district court’s credibility
assessment of witnesses who testify before it only for clear error. See
Doe v. Menefee, 391 F.3d at 163–64. Nevertheless, when, as here, a
witness is recanting prior sworn testimony supporting a conviction,

                                  37
we expect district courts to look upon the recantation “with the
utmost suspicion.” Haouari v. United States, 510 F.3d 350, 353 (2d Cir.
2007). The district court should consider not only the recantation, but
the motives that may have prompted it, the timing of the submission,
any possible motive for the original testimony, any inconsistencies in
the witness’s account or between that account and other evidence, the
plausibility or implausibility of inferences or assumptions that
crediting the recantation would require, as well as all other factors
generally considered in assessing witness credibility. See generally Doe
v. Menefee, 391 F.3d at 164–65.

      Here, respondent argues that the credibility of Ellis’s
recantation is suspect because her hearing testimony was compelled
by federal subpoena, following her earlier refusal to provide a sworn
statement. These circumstances warrant consideration in assessing
Ellis’s credibility, but they do not preclude a finding that her
recantation is credible. So too the fact that Ellis’s hearing testimony
was given under a grant of immunity from prosecution for perjury in
her trial testimony. The grant did not absolve Ellis of the duty to
testify truthfully at the habeas hearing. Thus, this circumstance was
also properly considered in determining credibility, but it did not
compel a finding that Ellis’s recantation was not credible.

      As the record shows, the district court well understood these
circumstances and others pertinent to Ellis’s credibility. It did not
hesitate to identify implausibilities and inconsistencies in Ellis’s
testimony. At the same time, the district court observed that Ellis’s
recantation was not recent; she had maintained it for more than a
decade in speaking with various persons. The district court also
noted respondent’s failure to point to any motive Ellis might have for
falsely recanting her trial testimony. In weighing the totality of these



                                  38
circumstances, the district court had a unique advantage unavailable
to this court: it heard directly from Ellis and observed her demeanor
as her recantation was offered on direct examination and tested on
cross‐examination. See id. at 164 (recognizing that “district courts are
generally best placed to evaluate testimony in light of the witnesses’
demeanor”); Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003)
(recognizing “factfinder’s unique ability to assess the witness” in
making credibility determination).

      Further, the district court heard testimony or reviewed
affidavits from various persons who reported either that they did not
witness the shootout with Ellis, as she testified at trial, or had heard
her subsequently admit to not seeing the shootout. The district court
conducted a thorough hearing to develop this evidence, proceeded
carefully to assess the extent to which it corroborated or undermined
Ellis’s own account, and ultimately concluded that Ellis’s recantation
and the corroboration supporting it were credible—but only in part.

      Specifically, the district court credited Ellis’s recantation on the
narrow point that she did not see the March 10 shootout and,
therefore, could not identify Hyman as a shooting participant.
Otherwise, the district court found Ellis to be a “facile liar” in
explaining both her motives for testifying falsely at trial and her
actual whereabouts at the time of the shootout. Hyman v. Brown, 197
F. Supp. 3d at 461. Similarly, as to corroborating witness Benitez, the
district court credited only her testimony that she and Ellis were not
in the third‐floor hallway of 1540 Hassock Street at the time of the
March 10 shootout and, thus, not in a position to see what occurred.
It found implausible Benitez’s explanation for telling the police
otherwise and problematic her inconsistent accounts of the night’s
events.



                                   39
      We are satisfied that the district court viewed Ellis’s recantation
with the appropriate high level of skepticism. But just as the law
permits a factfinder who identifies falsity in part of a witness’s
testimony to discredit the whole, see, e.g., Siewe v. Gonzales, 480 F.3d
160, 170 (2d Cir. 2007) (referencing maxim falsus in uno, falsus in
omnibus), it also affords a factfinder discretion to credit parts of a
witness’s testimony despite discrediting others, see, e.g., United States
v. Norman, 776 F.3d 67, 78 (2d Cir. 2015) (stating that factfinder is “free
to believe all, some, or none of a witness’s testimony” (internal
quotation marks omitted)). On this record of careful evidentiary
review and discernment by the district court, we identify no clear
error in its decision to credit that part of Hyman’s new evidence
indicating that Ellis did not see the March 10 shootout and, thus,
could not identify him as a shooting participant. We defer to that
finding in now assessing whether such credible new evidence made
a compelling showing of actual innocence.

      B.     Hyman Fails To Show Actual Innocence

      The fact that new evidence is credible does not necessarily
make it compelling under the Schlup standard for actual innocence.
Precisely because the gateway standard for actual innocence is
demanding and rarely met, in applying it to Hyman’s claim, we begin
by considering circumstances in which courts have found it satisfied.
See Rivas v. Fischer, 687 F.3d at 543 (being “guided by Supreme Court’s
application of [Schlup] standard in House [v. Bell]” in assessing Rivas’s
claim of actual innocence).




                                    40
                1.       Precedents Identifying Compelling Showings of
                         Actual Innocence

                         a.    Schlup v. Delo

        In Schlup, petitioner was convicted of murder based largely on
the testimony of two corrections officers who identified him as one of
three white prisoners who attacked a black inmate and stabbed him
to death.       Schlup sought federal habeas relief, maintaining his
innocence and arguing that trial counsel had been constitutionally
ineffective in failing to interview and call exculpatory witnesses. See
Schlup v. Delo, 513 U.S. at 306–07.                   In remanding the case for
application of a more‐likely‐than‐not, rather than clear‐and‐
convincing, standard of actual innocence, see id. at 327, the Supreme
Court highlighted the following new evidence: (1) sworn affidavits
from inmate eyewitnesses to the murder stating that Schlup was not
present for the crime and implicating other inmates by name;24 (2) the
sworn affidavit of a former prison lieutenant reporting a disciplinary
interaction with Schlup at and about the time of the killing, which cast
doubt on Schlup’s ability thereafter to have participated in the
murder and still arrived at the prison dining room 65 seconds before
the distress call prompted by the stabbing, as confirmed by a prison
videotape; and (3) the affidavit of an inmate‐clerk stating that there
was no delay between the stabbing and his placing the distress call,
and identifying the three men who assaulted the victim as persons
other than Schlup, see id. at 331.

        The Court acknowledged that this new evidence might be
deemed “unreliable” at an actual innocence hearing on remand. Id.

24While the district court had considered these affidavits suspect, see Schlup v. Delo, 513
U.S. at 309 n.19, the Supreme Court deemed it noteworthy that it was “black inmates
attesting to the innocence of a white defendant in a racially motivated killing,” id. at 316.



                                            41
Nevertheless, it observed that if the evidence were found credible, it
was sufficiently compelling to warrant relief. See id.

                   b.    House v. Bell

      The House petitioner was convicted of murdering a woman in
the course of what prosecutors contended was a sexual assault.
Central to the state’s largely circumstantial case were forensic
findings that House’s semen was present on the dead woman’s
clothing and her blood was present on House’s clothing. In claiming
actual innocence, House produced new test results undermining both
conclusions.    Based on this evidence, prosecutors themselves
admitted that the semen at issue was from the victim’s husband, not
House. See House v. Bell, 547 U.S. at 540. As for minute quantities of
the victim’s blood on House’s clothes, new evidence prompted even
the state’s Assistant Chief Medical Examiner to acknowledge that the
blood likely got on House’s pants, not during the murder, but while
the pants were in police custody and came into contact with
mishandled autopsy samples of the victim’s blood. See id. at 547.
Nevertheless, the Supreme Court observed that the new forensic
evidence would not, by itself, have allowed petitioner to pass through
the actual innocence gateway. See id. at 548. What tipped the balance
was further new evidence pointing to the victim’s husband as her
murderer.

      Most important, in the Court’s view, was testimony from two
sisters who stated that, at a gathering at their home after the murder
at which the victim’s husband was drinking heavily, they heard him
“rambling” about his wife’s death, “crying,” and saying he had




                                  42
“slapped” her, causing her to “hit her head and it killed her,” but “he
didn’t mean to do it.” Id. at 549–50.25

        At the habeas hearing, the husband denied killing his wife or
confessing to doing so, and the district court “did not question his
credibility.” Id. at 552. Nevertheless, the Supreme Court noted that
the husband’s hearing account of his whereabouts on the night of the
crime and his denial to ever striking his wife were both impeached by
other evidence, in the latter case by the state itself. See id.

        The Court thus characterized House’s actual innocence claim
as a “close” one. Id. at 554; see also id. at 553–54 (cataloguing evidence
that might “still support an inference of guilt”).                     Nevertheless,
because “the central forensic proof connecting House to the crime—
the blood and the semen—has been called into question, and House
has put forward substantial evidence pointing to a different suspect,”
i.e., the victim’s husband, the Court concluded that House had carried
his Schlup burden because “had the jury heard all the conflicting
testimony—it is more likely than not that no reasonable juror viewing
the record as a whole would lack reasonable doubt.” Id. at 554.

                        c.     Rivas v. Fischer

        Finally, in Rivas v. Fischer, a case in which this court ruled that
a Schlup showing of actual innocence could excuse an untimely
habeas petition, see 687 F.3d at 550, we found petitioner to have
carried that burden through new, “largely unchallenged—expert

25The Supreme Court distinguished the sisters’ testimony from an “eleventh‐hour affidavit
vouching for a defendant and incriminating a conveniently absent suspect.” House v. Bell,
547 U.S. at 552. “The confession evidence here involves an alleged spontaneous statement
recounted by two eyewitnesses with no evident motive to lie. For this reason it has more
probative value than, for example, incriminating testimony from inmates, suspects, or
friends or relations of the accused.” Id.



                                           43
testimony, which cast considerable doubt on the ‘central forensic
proof’ connecting him” to the murder of his former girlfriend, id. at
547. That proof was the medical examiner’s opinion as to the time of
death. In 1987, he estimated that the victim had died sometime
between Saturday afternoon March 28, 1987, and early Sunday
morning, March 29, 1987. Because Rivas had a “complete” and
“unchallenged” alibi for that time span, id. at 524, 543, the state “had
no case” against him unless it could prove that the victim died earlier
in the weekend, id. at 525. More than five years after the killing, the
state decided it could make that showing.         Although no further
evidence had developed, a new district attorney asked the medical
examiner to review his case file again, whereupon the examiner
revised his opinion to conclude that the victim’s death “more likely”
occurred sometime “Friday night,” March 27, 1987, or “very early
Saturday morning.” Id. at 524.

      To support his actual innocence claim, Rivas offered new
contrary evidence from a distinguished forensic pathologist, who
testified with a “reasonable degree of medical certainty” that the
condition of the victim’s body when examined by the medical
examiner at 3:30 p.m. on Monday, March 30, 1987—in “full rigor” and
without “discoloration around the abdominal wall”—meant that her
“death could not have occurred longer than 48 hours prior to the
time” of examination, i.e., could not have happened earlier than 3:30
p.m. on Saturday, March 28. Id. at 531 (internal quotation marks
omitted). The state mounted no “serious challenge” to the expert’s
“credibility or expertise.” Id. at 544. Moreover, it conceded that when
the medical examiner revised his time‐of‐death estimate, he was
under investigation for professional misconduct and, in November
1993, resigned his office, in part, to avoid criminal prosecution. See id.
at 521. On this record, this court concluded that “any reasonable juror


                                   44
would almost certainly credit” “the essentially unchallenged
testimony of a respected forensic pathologist” as “against the word of
a disgraced medical examiner,” and “would therefore, more likely
than not, harbor a reasonable doubt about Rivas’s guilt.” Id. at 543,
546.26 At the same time, the court characterized the case as “close,”
noting that it “would not expect a lesser showing of actual innocence
to satisfy the Schlup standard.” Id. at 546.

                2.      Hyman’s Credible New Evidence Does Not Make
                        the Compelling Showing of Actual Innocence
                        Required by Schlup

        With the benefit of these precedents, we apply the Schlup
standard here and conclude that Hyman’s new evidence, even if
credible, is not sufficiently compelling as to his actual innocence to
make it more likely than not that “no reasonable juror,” aware of the
new evidence, would return a guilty verdict on the charged crimes.
Schlup v. Delo, 569 U.S. at 329 (internal quotation marks omitted). This
is evident from (a) the substance of the evidence itself, (b) its
comparison to precedent, and (c) the totality of the evidence.

                         a.    Substance

        Plainly, the substance of credible new evidence will bear on
how compellingly it demonstrates actual innocence.                              The new
evidence established that Ellis did not see the March 10 shootout and,


26The court noted further new circumstantial evidence—“new” because not disclosed by
the prosecution to the defense at trial—that was, at least, consistent with the victim dying
on Saturday night: (1) an identified neighbor of the victim swore in an affidavit that, while
watching “Saturday Night Live” late on Saturday night March 28, she had heard a
“woman’s voice,” “shriek or scream,” “like someone was in trouble and not like anyone
kidding around,” Rivas v. Fischer, 687 F.3d at 529 (internal quotation marks omitted); and
(2) an unidentified neighbor reported hearing a dog barking and a car speeding away from
the vicinity of the victim’s home around 11:00 p.m. on Saturday night.



                                            45
thus, lied in identifying Hyman as a participant.        That is quite
different from new evidence that an eyewitness to a crime falsely
identified a person other than the one she actually saw commit it. Such
a false identification can bear on actual innocence because it is more
likely than not that an accused did not commit a crime if someone else
in fact did. But no such conclusion obtains in the circumstance here.
Ellis’s failure to see the shootout means she cannot inculpate
petitioner (or anyone else), but neither can she exonerate him. She
simply has no eyewitness evidence bearing on either petitioner’s guilt
or his innocence.    Whatever question that might raise as to the
sufficiency of the prosecution’s case absent Ellis’s testimony, it does
not indicate Hyman’s likely innocence, much less do so compellingly.
See Bousley v. United States, 523 U.S. at 623 (distinguishing factual
innocence from “legal insufficiency”); accord Dunham v. Travis, 313
F.3d at 730.

                    b.   Precedent Comparison

      The failure of Hyman’s new evidence to make a compelling
showing of innocence is further demonstrated by a comparison to
Schlup, House, and Rivas. In each of these cases, the new evidence
directly supported petitioner’s factual innocence by indicating either
that he did not commit, or could not have committed, the crimes of
conviction.

      In Schlup, inmate‐eyewitnesses to a prison stabbing swore that
petitioner was not one of the three (identified) men whom they saw
participate in that crime. If credible, this new evidence indicated that
petitioner did not commit the crime. Further, in Schlup, a former police
lieutenant swore that he was disciplining petitioner at about the time
of the stabbing. Such new evidence indicated that petitioner could not
have committed the crime within the time between the discipline


                                  46
encounter and his arrival in the prison dining room as indicated on a
timed prison video recording.

         In House, credible new tests of forensic evidence used to
identify petitioner at trial as the murderer discredited those
identifications. Further, two witnesses credibly testified to hearing
the victim’s husband admit to killing his wife.         Such evidence
indicated that the petitioner did not kill the victim, because her
husband had.

          Finally, in Rivas, credible new forensic evidence showed that
the victim died, not at the time reported by a discredited medical
examiner, but at a later time for which petitioner had an unchallenged
alibi.    Thus, the new forensic evidence together with the alibi
indicated that petitioner could not have committed the murder at
issue.

         Although the evidence in both House and Rivas was thus found
credibly to show that petitioner likely did not commit, or could not
have committed, the crimes of conviction, the courts characterized the
gateway showing in each case as “close.” House v. Bell, 547 U.S. at 554;
Rivas v. Fischer, 687 F.3d at 546. Indeed, in Rivas, this court observed
that it “would not expect a lesser showing of actual innocence” than
that made there “to satisfy the Schlup standard.” 687 F.3d at 546.

         The new evidence here makes a far “lesser showing” of actual
innocence than that in Rivas, House, or Schlup. Evidence that Ellis
failed to see the March 10 shootout leaves the trial record with no
eyewitness identification of Hyman as the person firing a gun from
the green Mazda. But the absence of such evidence does not mean
that Hyman did not, or could not, have participated in the shootout.
It means only that Ellis does not know who, if anyone, did. This is


                                   47
not to foreclose the possibility that, in some circumstances, a recanted
identification based on an admitted lack of knowledge, might so
“thoroughly undermine[] the evidence supporting the jury’s verdict”
as to support the probability determination required by Schlup. Id. at
543; see also House v. Bell, 547 U.S. at 553–54. We conclude only that
this is not such a case. To explain, we proceed to review the totality
of the evidence.

                   c.    Totality of the Evidence

       The district court concluded that without Ellis’s identification,
the prosecution effectively had no case against Hyman. See Hyman v.
Brown, 197 F. Supp. 3d at 462–63. The totality of the evidence shows
otherwise.

                        i.    Hyman Places Himself at the Shootout
                              in the Green Mazda

      To explain, Ellis’s trial testimony can be understood to consist
of two parts: (1) she saw Hyman at the scene of the shootout parked
outside 1540 Hassock Street in a green Mazda, and (2) she saw Hyman
firing a gun from the car’s passenger window. Ellis did not recant the
first statement. At the habeas hearing, she maintained that on March
10, 2000, she saw Hyman pull up to 1540 Hassock Street in a green
car. When she heard gunshots, she ran inside without seeing who
was doing the shooting. See supra at 20. But even if Ellis had recanted
the first part of her trial testimony, that would not help Hyman
because he does not dispute his presence at the shootout. The jury
heard his statements to the police and grand jury admitting that, at
the time of the shootout, he was indeed double‐parked outside 1540
Hassock Street, alone, in his green Mazda.          Moreover, Hyman
acknowledged that he was not coincidentally caught up in the



                                  48
shootout; he professed to be its unarmed target.27 In light of these
admissions, the singular focus of Hyman’s actual innocence claim is
the second part of Ellis’s testimony. Is it more likely than not that,
upon learning that Ellis did not see Hyman firing a gun during the
March 10 shootout—because she did not see the shootout at all—no
reasonable juror would find him guilty beyond a reasonable doubt of
the charged crimes? See Schlup v. Delo, 569 U.S. at 329. The totality of
the record does not admit that conclusion.

                              ii.     Eyewitnesses See Gunfire From Vicinity
                                      of Hyman’s Car

        Ellis’s recantation shows that she had no probative evidence as
to whether Hyman fired a gun during the shootout. But not so other
eyewitnesses. Three residents of the area testified at trial to seeing
flashes of gunfire coming from a green (or dark) car or its occupant
during the shootout. Each witness identified the car as resembling
Hyman’s green Mazda.

        Margaret Contreras testified that, as she was trying to move the
fatally wounded Maria Medina from the lobby of 1540 Hassock Street
to the relative safety of an elevator, she saw flashes of gunfire coming
from the passenger window of a dark green car. See supra at 9. Lynn
Burton testified that, upon hearing gunfire, she looked out a window
of her third‐floor apartment at 1540 Hassock Street and saw “shots
being fired” from both a red car and the dark car parked behind it,
which she described as “fire coming out of a window.” Trial Tr. at


27Because Hyman did not testify at trial or at the habeas hearing, his ambush claim was
not tested by cross‐examination. Nevertheless, he himself cast doubt on his credibility by
initially lying to police about driving to Hassock Street in a red Acura rather than the green
Mazda that he knew was pocked with bullet marks. See, e.g., United States v. Glenn, 312
F.3d 58, 69 (2d Cir. 2002) (observing that defendant’s “false exculpatory statements to law
enforcement officials may be circumstantial evidence of consciousness of guilt”).


                                             49
1628. Deborah McCoy, who lived across from 1540 Hassock Street,
testified that, after hearing gunfire, she looked out the kitchen
window of her apartment and saw a man she recognized as Osimba
Rabsatt firing a gun from near a red car, while another man, whom
she did not know, got out of a dark car parked behind the red one,
fired a gun, and then got back in the car. See supra at 10–11.

      The fact that none of these women could identify the occupant
of the green car is of no import because Hyman himself provided that
evidence. He stated that he was the sole occupant of the green Mazda
that was involved in the shootout. What is significant about these
three women’s testimony, then, is that each of them—viewing the
shootout separately and from different vantage points—reported
seeing gunfire coming from that car or its occupant. None testified to
seeing the car ambushed.

      Insofar as the witnesses’ recollections differed on certain
points—e.g., the exact color of the car, whether its occupant fired from
inside or outside the car—these differences are not a product of Ellis’s
recantation.   Rather, they were known to the trial jury, which
nevertheless voted to convict. Even with new evidence that Ellis had
not seen the shootout, a reasonable juror would more likely than not
attribute any car‐color confusion among other witnesses to the limited
light available at 7:00 p.m. in March for distinguishing among dark
colors. As for whether Hyman fired some shots from inside or outside
his car—or from both—a reasonable juror would more likely than not
conclude that it was not necessary to resolve differences on this point
because, in any event, the eyewitnesses all testified to seeing flashes
of gunfire coming from the direction of the green car, not only at the




                                  50
car as Hyman told police in claiming to have been ambushed.28 In
light of consistent eyewitness testimony on this point, and Hyman’s
own admissions to being the sole occupant of the green car, Ellis’s
recantation of her gunfire sighting (based on a failure to see the
shootout at all) would not likely preclude any reasonable juror from
finding Hyman’s guilt proved beyond a reasonable doubt.

        In concluding otherwise, the district court reasoned that Ellis’s
recantation might heighten juror skepticism about Contreras’s,
Burton’s, and McCoy’s testimony because these women, like Ellis,
had relationships with Whitmore or members of his family, providing
a motive for them to testify in his favor. The district court thought
such bias was evident in Contreras’s belated trial disclosure that she
saw Whitmore enter 1540 Hassock Street carrying a gun. While that
belated disclosure—known to the trial jury—could certainly inform
an assessment of Contreras’s credibility, in the end, it is not likely that
Ellis’s recantation would make every reasonable juror reject
Contreras’s testimony.

        To begin, it hardly appears likely that Contreras delayed
reporting Whitmore’s March 10 gun possession to shield him from
police suspicion. After all, on the day after the shootout, March 11,
2000, Whitmore himself told police that he had been in possession of
a gun, firing an entire seven‐shot clip at Hyman during the gunfight.
Whitmore simply attempted to minimize his culpability by saying

28There is some non‐trial evidentiary support for Hyman shooting from outside as well as
inside a car. The Howard statement summarized supra at 25–26, identifies Hyman as one
of two shooters exiting the red Acura. And a police report summarizing interviews with
1540 Hassock Street residents indicates that, although most did not see the shooting, third‐
floor resident Tiffany Weeks stated that she saw two black males exit a red Acura and a
green Mazda, fire guns, and then speed away. In sum, even without Ellis, five
eyewitnesses (six with Whitmore) reported seeing gunfire coming from, not only at, the
parked cars. No person interviewed reported seeing an ambush of the cars.



                                            51
that he acted defensively rather than offensively.       The fact that
Contreras had seen Whitmore with a gun at the conclusion of the
March 10 shootout did nothing to support or undermine Whitmore’s
defensive version of events. In any event, when questioned at trial,
Contreras admitted seeing Whitmore. This makes it more, not less,
likely that she would not lie under oath, whether about seeing
Whitmore, seeing gun flashes, or any other part of her testimony.

      Burton’s gunfire sighting also sheds no light on who was the
aggressor in the gunfire exchange.

      As for McCoy, she testified that she “first” saw gunfire coming
from occupants of the parked cars. Trial Tr. at 1813. But the statement
must be considered in context.         The gunshots McCoy first saw
followed the gunshots she heard, which is what prompted her to go
to the window. In short, when McCoy went to the window, the
shootout was already underway. Thus, her testimony also did not
identify either side in the shootout as the aggressor. Moreover, it
hardly appears more likely than not that McCoy’s mutual godmother
relationship with members of Whitmore’s family prompted her to
shade testimony in his favor. She is the one trial witness who, on
direct examination, specifically identified Whitmore as one of the
March 10 shooters. Meanwhile, she did not identify Hyman. At trial,
all she could state was that she saw gunfire coming from a red car and
a dark car. While she identified Rabsatt as the driver of the red car,
McCoy could not identify the driver of the dark car. It is Hyman’s
own statements that, even after Ellis’s recantation, identify him as the
sole occupant of that car.




                                  52
                             iii.     Ballistic Evidence Indicates a Gunfire
                                      Exchange, not an Ambush

        Ballistic evidence makes it unlikely that any reasonable juror
would reject eyewitness testimony about seeing flashes of gunfire
coming from Hyman’s car.                 Notably, .45 caliber and 9mm shell
casings were retrieved from the middle of Hassock Street, which was
right about where they would have been discharged from guns fired
from the passenger side window of a car double‐parked across from
1540 Hassock Street, where Hyman placed his own car. Meanwhile,
.380 caliber shell casings recovered from the walkway bordering 1540
Hassock Street were consistent with guns fired from that area toward
the car, as Whitmore himself admitted. In short, the casings retrievals
indicated gunshots fired both from and at the green car, not an
ambush of the green car’s unarmed occupant.29

        As noted supra at 13, the guns that discharged the .45 caliber
and 9mm casings retrieved from the middle of Hassock Street were
themselves recovered from the wheel well of Whitmore’s car. If
Hyman fired one of the guns that discharged some of these casings, it
is curious that the gun would wind up in Whitmore’s car. The record
offers no satisfactory explanation. At trial, the prosecution suggested
that someone planted the guns in Whitmore’s car to deflect blame


29At the habeas hearing, respondent stated that the ballistic evidence was not “probative
as to . . . the defendant’s participation.” Habeas Hearing Tr. at 45. We construe this to
concede that the ballistic evidence could not specifically identify Hyman as the person
responsible for particular ballistic evidence. We do not construe it as a concession that the
ballistic evidence was irrelevant to the chain of circumstances establishing Hyman’s guilt,
much less to Hyman’s ability to make a compelling showing of actual innocence. Indeed,
in the sentence following the “participation” statement, respondent noted the recovery of
“several rounds of shells . . . or ballistics from the car [Hyman] was purportedly driving at
the time.” Id. As noted in text, spent shells would indicate shots fired from the general
location where they were retrieved, i.e., the parked green Mazda, while bullet marks on
that car would indicate shots fired toward it. In sum, the ballistic evidence provides strong
circumstantial evidence of a gunfire exchange, not an ambush.


                                            53
from Hyman and Rabsatt.         The hypothesis is pure speculation.
Nevertheless, it was argued to the jury at Hyman’s trial, which either
accepted it or, more likely, did not find it necessary to resolve to
conclude that guilt was established beyond a reasonable doubt. The
important point for purposes of actual innocence is that Ellis’s
recantation    neither   simplifies        nor   complicates   the   puzzle.
Accordingly, we do not think it more likely than not that, with the
addition of Ellis’s recantation to the gun‐location puzzle, no
reasonable juror would find Hyman guilty beyond a reasonable
doubt based on the totality of other evidence.

        The conclusion finds further support in ballistic evidence
recovered from the 1540 Hassock Street building. The height of bullet
holes in the lobby door was consistent with gunshots fired toward the
building from a relatively low position, such as the open window of
a parked car, as Contreras and Burton witnessed. That the Mazda’s
window was open during the shootout was confirmed by shattered
glass inside the passenger door window track. The window did not
“pop” in Hyman’s face, as he told police in trying to support his
ambush story. See United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002).

        Indeed, for bullets entering 1540 Hassock Street—including the
bullet killing Ms. Medina—to have come from persons firing at the
green Mazda as Hyman asserted, rather than from it as eyewitnesses
testified, one or more shooters would have had to have been firing
toward the car’s driver’s side. Hyman told police he was shot at from
both sides of his car. See supra at 8. But that account is convincingly
belied by the complete lack of bullet marks on the Mazda’s driver’s
side.   Nor were there bullet marks on the car’s rear to support
Hyman’s story that the men who ambushed him first fired from that
direction.



                                      54
      In sum, the totality of ballistic evidence indicates a gunfire
exchange on March 10, not a one‐sided ambush.

      As for other evidence, not admitted at trial—such as the
Whitmore, Howard, and Tiffany Weeks statements—we do not here
assume a reasonable juror’s likely reliance on those statements in
finding Hyman guilty. We note only that the statements do not
support his claim of actual innocence.

      Any trial perjury is a serious matter and nothing mitigates
Ellis’s willingness to lie under oath—a willingness she appeared to
maintain, at least in part, even at the habeas hearing. Nevertheless,
where, as here, a witness recants a trial identification, not because the
witness knows the accused not to be the person firing a gun during a
shootout, but because the witness did not see the shootout at all, that
new evidence is far less compelling in demonstrating actual
innocence than that in Schlup, House, and Rivas. In light of petitioner’s
own admission that he was the sole occupant of the green car that was
the focal point of the shootout; three eyewitnesses’ testimony to
seeing flashes of gunfire coming from that car or its occupant; and
ballistic evidence indicating that bullets were fired from, not just at,
the car, we cannot conclude that, upon learning of the Ellis
recantation, it is more likely than not that “no reasonable juror”
would still find Hyman guilty beyond a reasonable doubt of the
charged crimes.

      Accordingly, we conclude that Hyman has not made the actual
innocence showing necessary to pass through the narrow gateway for




                                   55
federal habeas review of his procedurally barred Sixth Amendment
claim.30

                                       CONCLUSION

        To summarize, we conclude:

        1. There are no categorical limits on the types of evidence that
             can be offered to demonstrate actual innocence and, thus,
             the district court did not err in considering impeachment
             evidence.



30Because Hyman did not carry his gateway burden, the district court should not have
decided—and we need not review—his barred Sixth Amendment claim. We, nevertheless,
note that the merits of that claim are not apparent.

First, it is not clearly established by Supreme Court precedent that a fee dispute between a
defense attorney and a potential witness gives rise to an “actual conflict” of interest that
allows a petitioner to claim ineffective assistance of counsel without showing prejudice. In
Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980), the Court recognized multiple concurrent
representations to give rise to an actual conflict, but in Mickins v. Taylor, 535 U.S. 162 (2002),
it cautioned against an “expansive application” of Sullivan to such circumstances as when
“representation of the defendant somehow implicates counsel’s personal financial
interests,” Mickins v. Taylor, 535 U.S. at 174–75. In Tueros v. Greiner, 343 F.3d 587 (2d Cir.
2003), this court stated that “we must look to Sullivan, not . . . Mickens” for “‘clearly
established Federal law,’” id. at 593. Nevertheless, we have since expressly relied on
Mickens in refusing to extend Sullivan to circumstances involving an attorney’s ethical
obligation to correct false testimony. See Torres v. Donnelly, 554 F.3d 322, 326 (2d Cir. 2009).
Thus, no clearly established Supreme Court precedent establishes an actual conflict of
interest here.

Second, even if the circumstances indicated such a conflict, Hyman would have to show
that it “‘adversely affected his lawyer’s performance.’” Strickland v. Washington, 466 U.S.
at 692 (quoting Cuyler v. Sullivan, 446 U.S. at 350). The state court found that Hyman failed
to do so because the Hinkson and Sanders affidavits allowed only speculation as to why
trial counsel had not called Hinkson. The conclusion cannot be deemed an unreasonable
application of clearly established law because Hinkson’s own photographs seem to refute,
rather than support, his opinion that it was impossible to see the shootout from the third‐
floor hallway window of 1540 Hassock Street. In these circumstances, the decision to
forego calling a particular witness is generally a matter of strategy falling within the wide
range of reasonable professional assistance. See Greiner v. Wells, 417 F.3d 305, 323 (2d Cir.
2005); see also Bell v. Cone, 535 U.S. 685, 701–02 (2002).


                                               56
2. The district court did not clearly err in finding some of the
   new evidence Hyman offered to support his actual
   innocence claim credible.

3. Even deferring to that credibility finding, however, on de
   novo review, we conclude that Hyman has not made the
   compelling showing of actual innocence necessary for
   merits review of his procedurally barred Sixth Amendment
   claim.

      a. The credible new evidence showed only that a
            recanting trial witness did not view the shootout at
            issue in the charged crimes, not that Hyman did not
            or could not have committed those crimes as
            indicated by new evidence found compelling in
            Schlup, House, and Rivas.

      b. The totality of the evidence nevertheless showed:

               i. Hyman’s admitted presence at the crime scene
                  as the sole occupant of the dark green car that
                  was the focus of the shootout,

              ii. Three eyewitnesses, viewing the shootout from
                  difference vantage points, each saw gunshots
                  fired from the direction of that car,

              iii. Ballistic evidence strongly corroborates that
                  gunshots were fired from, not only at, Hyman’s
                  car, and

              iv. No evidence (except for Hyman’s own self‐
                  serving account) supports his ambush claim.



                              57
      On this record, we cannot conclude that, upon learning of the
recanted trial identification by a witness who had not seen the
shootout, it is more likely than not that no reasonable juror would find
Hyman guilty beyond a reasonable doubt.

      Accordingly, the judgment of the district court is REVERSED
and the petition for a writ of habeas corpus is DISMISSED.




                                  58
      DENNIS JACOBS, Circuit Judge, concurring:

      I subscribe to the meticulous opinion of the Court.

      The issue of actual innocence is an uncomfortably close question here. Since,

in my view, Hyman’s underlying claim of ineffective assistance of counsel fails,

Hyman’s inability to establish the gateway claim of actual innocence does not alter

the result. Still, it bears notice that actual innocence is a hurdle raised high by

precedents, presumptions, standards of review, and strict deference to state court

rulings that (in my view) command deference without necessarily earning assent.

      The new evidence propounded by Hyman amputates chunks of the

prosecution case presented at trial. Hyman was certainly present; but Ellis,

apparently the only witness who testified about seeing seen Hyman at the scene,

credibly recanted her testimony that she saw him fire a gun; moreover, she

testified that she was threatened with a gun to inculpate Hyman. And although

the district court was skeptical of Ellis’s account of the gunman, the thrust of her

testimony is supported by other evidence adduced by Hyman: Benitez’s testimony

that Ellis and Ellis’s boyfriend asked Benitez to lie about what she saw the night

of the shooting. These recantations raise nagging doubts when considered with

the disturbing fact that the gun supposedly used by Hyman just before he fled the
scene by car was found in the spare‐wheel well of the locked trunk of someone

else’s car parked at the scene.

      As the Court’s opinion makes plain, Hyman’s actual innocence claim is

“credible.” Op. at 41. However, the limits on our review compel the conclusion

that the evidence is insufficiently “compelling” to clear the gateway finding of

actual innocence. We are forced to this conclusion because, as the Supreme Court

has instructed, it is not enough to show that the prosecution’s case is lacking: a

petitioner must set forth evidence of “factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). This standard

defeats Hyman’s claim. But it is worth mentioning that, if Hyman were on trial

today and the prosecution’s case were critically impaired as it now is, Hyman

would not have to establish his own innocence.

      We are required to give deference and to observe these strong limitations on

our own power. But we are not required to do so without disquiet. I have a strong

doubt that the victim was killed by a bullet fired by Hyman from a gun that

unaccountably turned up hidden in a place inaccessible to him. I concede that that

doubt is not enough.

                                  *     *     *
      I commend this case to the attention of the Governor, who alone has power

to grant relief if relief is justified. See, e.g., Fox v. Johnson, 832 F.3d 978, 990 (9th

Cir. 2016) (Hurwitz, J., concurring). In making that determination, the Governor’s

inquiry would be greatly advanced by the detailed account of facts in the opinion

of the Court.
