                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0283p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                            Petitioner-Appellant, -
 GREGORY LOTT,
                                                     -
                                                     -
                                                     -
                                                         Nos. 05-4336; 07-4294
         v.
                                                     ,
                                                      >
 MARGARET BAGLEY, Warden,                            -
                            Respondent-Appellee. -
                                                    N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
        Nos. 95-02642; 04-00822—Kathleen McDonald O’Malley, District Judge.
                                     Argued: June 11, 2008
                               Decided and Filed: August 8, 2008
             Before: BOGGS, Chief Judge; MERRITT and COLE, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Gregory W. Meyers, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio,
for Appellant. Sarah A. Hadacek, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee. ON BRIEF: Gregory W. Meyers, Melissa J. Callais, Robert K. Lowe, OFFICE
OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Sarah A. Hadacek, Stephen
E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Michael L. Collyer,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        MERRITT, Circuit Judge. The present question before us in this habeas corpus, murder
case, in which Ohio has imposed the death penalty, is whether the trial and post-conviction evidence
would now convince a reasonable factfinder that Lott is innocent of the crime. We agree with
District Judge O’Malley that the new evidence of prosecutorial wrongdoing does not undermine the
finding of guilt, which means that Lott may not proceed with his otherwise procedurally defaulted
claim that the State violated his due process rights by failing to turn over certain “exculpatory”
information in violation of Brady v. Maryland, 373 U.S. 83 (1963). Hence, we affirm the judgment
for the State.




                                                 1
Nos. 05-4336; 07-4294                         Lott v. Bagley                                                  Page 2


        We have written three previous opinions in this case during the last seven years. Lott v.
Coyle, 261 F.3d 594 (2001); In re: Gregory Lott, 366 F.3d 431 (2004); In re: Gregory Lott, 424 F.3d
446 (2005). The first opinion recited the gruesome facts and affirmed the denial of Lott’s habeas
corpus petition on all issues except Lott’s actual innocence, “gateway” claim brought under the legal
theory set out in Schlup v. Delo, 513 U.S. 298 (1995). According to Schlup, a petitioner may
advance a procedurally defaulted claim if he is able to show “that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Id. at 327. We did
not resolve the Schlup issue in our first opinion because we noted that “this issue may now be
pending in the state court and has not been fully briefed before us.” 261 F.3d 621. In an abundance
of caution, given that this is a death penalty case, we addressed this issue in our second opinion and
issued an “order authorizing the district court to consider [a] second [habeas] application for a
Brady, actual innocence, gateway claim.” 366 F.3d 431-34. In the third opinion, we resolved an
issue regarding the attorney-client privilege raised by Lott “in the midst of litigating his second
habeas corpus proceeding” concerning the actual innocence claim.
       The issue, as explained in earlier opinions, turns on the application of Schlup v. Delo and
§ 2244(b)(2):
         A claim presented in a second or successive habeas corpus application under section
         2254 that was not presented in a prior application shall be dismissed unless —
         ....
         (B)(i) the factual predicate for the claim could not have been discovered previously
         through the exercise of due diligence; and
         (ii) the facts underlying the claim, if proven and viewed in light of the evidence as
         a whole, would be sufficient to establish by clear and convincing evidence that, but
         for constitutional error, no reasonable factfinder would have found the applicant
         guilty of the underlying offense.
        Lott concedes that his legal counsel knew of the facts constituting his Brady exculpatory
evidence claim by February of 1992. In fact, he admits that his “counsel intentionally committed
malpractice by deciding to deliberately bypass Ohio’s courts.” He explains: “Acting under the old
school strategy of ‘deliberate bypass,’ Baich [Lott’s prior counsel] hid this evidence from state
courts for fear that he would lose in 1what was perceived as a hostile forum, hoping instead to play
this winning hand in federal court.” Petitioner’s Brief, Lott v. Bagley (filed May 5, 2008). It is
difficult to read these statements by Lott’s present counsel as anything other than an admission that
Lott’s previous post-conviction counsel failed to meet the “due diligence” requirement of § 2244.
        Even if he were able to meet the due diligence requirement of § 2244, Lott has been unable
to advance facts that establish that it is more likely than not that he is actually innocent of the
aggravated murder of his aged victim. As a result, he may not advance his procedurally defaulted
claim that the State committed a Brady violation. In her thorough and comprehensive opinion of
September 28, 2007, District Judge O’Malley rejected Lott’s gateway actual innocence claim,
leaving no stone unturned in her analysis of the facts and the application of the law of procedural
default and actual innocence. We attach her findings and conclusions on this issue as Exhibit 1 to
this opinion and incorporate them by reference as our reasons for rejecting Lott’s Schlup actual
innocence claim and for affirming the judgment of the District Court. For the full opinion see Lott
v. Bagley, No. 1:04-CV822, 2007 U.S. Dist. LEXIS 91762 (N. D. Ohio Sept. 28, 2007).


         1
          For an explanation of the “old school strategy of ‘deliberate bypass,’” see Fay v. Noia, 372 U.S. 391, 433-40
(1963), overruled in part by Wainwright v. Sykes, 433 U.S. 72 (1977).
Nos. 05-4336; 07-4294                  Lott v. Bagley                                       Page 3


       Accordingly, the judgment of the District Court denying Lott’s petition for a writ of habeas
corpus is affirmed.
Nos. 05-4336; 07-4294                               Lott v. Bagley                                                        Page 4

                                                         EXHIBIT 1

    2. Schlup v. Delo                                              evidence in its actual innocence review. Id. at 2077. The
                                                                   House Court also emphasized that 'the habeas court must
                                                                   consider 'all the evidence,' old and new, incriminating and
    Out of an abundance of caution and for appellate               exculpatory, without regard to whether it would necessarily be
review, the Court will, regardless of its findings pertaining to   admitted under 'rules of admissibility that would govern at
Lott's actual innocence under the statutory standard, also
                                                                   trial.'" Id. (quoting Schlup, 513 US. at 327-38)(emphasis
subject his actual innocence claim to the standard set forth in
                                                                   supplied).
Schlup v. Delo, 513 US. 298, 115 S. Ct. 851, 130 L. Ed. 2d
808 (1995). As the Court reasoned during the evidentiary           B. Substantive Analysis
hearing, this is the standard that Lott must meet to excuse
the procedural default of his Brady claims. 14                     1.28 U.S.C. § 2244(b)
                                                                       As noted above, the Court must now apply the claim
        14 Although the issue of whether the Schlup standard       Lott raised in the successor petition to the requirements set
       survived the enactment of the AEDPA was raised              forth in § 2244(b). As Lott does not contend that the Supreme
       during the evidentiary hearing, it is a settled question    Court has created a new rule of constitutional law made
       that Schlup remains intact. See House v. Bell, 547          retroactive to him under § 2244(b)(2)(A), the Court will
       U.S. 518, 126 S.Ct. 2064, 2078, 165 L. Ed. 2d 1             review his claim pursuant to § 2244(b)(2)(B). That statute
       (2006)(finding Schlup remains the standard for              requires Lott to demonstrate both that he could not have
       determining actual innocence in first federal habeas        previously discovered the factual predicate of his claims, and
       petitions in which the petitioner seeks to excuse the       that he can establish, by clear and convincing evidence, that
       default of those claims based on a showing of actual        he would not have been convicted but for constitutional
       innocence); Williams v. Bagley, 380 F.3d 932, 973-          error. 15 The Court reviews each of these statutory prongs,
       74 (6th Cir. 2004).                                         finding that Lott can satisfy neither.
                                                                            15 Although the Court holds elsewhere in this
    In Schlup v. Delo, the Supreme Court held that, where a                Opinion that Lott has satisfied the diligence
petitioner seeks to utilize claims of actual innocence as a                requirement of § 2254(e)(2), it notes that the
gateway to assert he was wrongly convicted of a crime, the                 difference in that statute's language from
petitioner must demonstrate that "a constitutional violation               § 2244(b)(2)(B)(i) is significant and requires the
has probably resulted in the conviction of one who is actually             Court to perform a distinct analysis. While
innocent." Id. at 327 (quoting Murray v. Carrier, 477                      § 2254(e)(2) merely requires that the petitioner not
U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)).                  have "failed to develop" his claims in state court, a
To constitute the necessary "probability," the petitioner must             requirement Lott clearly has fulfilled by filing a second
show "that it is more likely than not that no reasonable juror             petition for post-conviction relief, § 2244(b)(2)(B)N
would have convicted him in light of the new evidence." Id.                requires that an applicant acted timely in presenting
Thus, the Schlup Court concluded, if a habeas petitioner                   newly discovered materials to the state courts.
presents evidence of his innocence that is so strong that a            a. § 2244(b)(2)(B)(1)
habeas court cannot have confidence in the trial's outcome
unless it is also of the belief that the trial was free of             Lott's failure to present his Brady and actual innocence
constitutional error, a habeas petitioner should be entitled to    claims in a timely fashion is undisputable. As Lott concedes
a merit review of his underlying claims. Id. at 316.               in the successor petition, Lott's post-conviction counsel
                                                                   obtained the City of Cleveland and Cuyahoga County
     The Supreme Court revisited the Schlup holding in House       Prosecutor's Office records that form the basis of his Brady
                                                                   and actual innocence claims by October, 1991. Although Lott
v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L. Ed. 2d 1
                                                                   could have presented these claims based on this
(2006). There, the petitioner asserted that multiple facts that
                                                                   information to the state court at that time, he failed to do
had come to light since the time of his state court
                                                                   so. Current habeas counsel concede that post-conviction
proceedings could establish his actual innocence as a
                                                                   counsel "engaged in an 'intentional bypass' of the state
gateway to excuse the procedural default of the claims raised
                                                                   courts in the hopes that the federal courts would more
in the petition. Reversing the Sixth Circuit's denial of this
                                                                   thoroughly consider the documents. (Doc. No. 1, at 24).
relief, the Supreme Court held that the petitioner had met
                                                                   Thus, there is no doubt that Lott fails
the Schlup standard.

    Prior to applying this standard to the facts presented, the
House Court underscored several aspects of the Schlup
holding that are of particular significance here. First, the
House Court noted that, while Schlup requires the introduction
of new, credible evidence that was not presented at a
petitioner's trial, a habeas court is not limited to such
Nos. 05-4336; 07-4294                               Lott v. Bagley                                                       Page 5

to demonstrate that he could not have discovered the               departing quickly from that area holding a brown bag or
factual predicate of his claims previously, as is required under   shirt under his arm.
the statute. '6
                                                                       ii. Materials in support of actual innocence acquired
        16 Attempting to circumvent this quandary, Lott's          since trial
       counsel asserted during the evidentiary hearing, as             a. Identification Issue
       stated above, that "the degree of ineptitude by [post-
                                                                       Lott's identification claim contains several sub-parts:
       conviction and first habeas counsel] combined give
                                                                   First, he maintains that McGrath failed to identify him as the
       a legal basis to excuse ... the due diligence default."
                                                                   assailant because of his description regarding the complexion,
       (Doc. No. 85, at 8). Counsel conceded that this
                                                                   hair, and height of the assailant. Lott also notes from the
       argument currently has no legal support. Id. at 10.
                                                                   police report containing this description that McGrath
             The Court cannot forgive Lott's lack of due           believed that he recognized his assailant from his
       diligence because there is simply no authority for what     barbershop. Lott also asserts that Coleman's artist sketch
       amounts to Lott's ineffective assistance of collateral      of him and her description of him as having a "reddish"
       counsel claim. In fact, the Supreme Court has held          complexion demonstrates his innocence. Moreover, he
       explicitly that no such constitutional right exists.        contends, police suggested to Coleman that Lott altered his
       Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S Ct.        skin tone by using skin-lightening makeup.
       1990, 95 L. Ed. 2d 539 (1987); 28 U.S.C. §2254(1).
                                                                       i. McGrath identification
    b. § 2244(b)(2)(B)(11)                                             The Court finds that, while parts of McGrath's
    Even if Lott could satisfy the requirements of §               description of his assailant may support Lott's actual
2244(b)(2)(B)(i), he cannot demonstrate, by clear and              innocence, it by no means proves it by clear and convincing
convincing evidence, that no reasonable factfinder would           evidence. In his first habeas petition, the Court alternatively
have convicted him of McGrath's murder if no Brady                 held that, even if not defaulted, Lott's claim regarding
violation had occurred at his trial. The Court sets forth          McGrath's identification of him would not have been well-
below the evidence presented at trial and during the federal       taken because McGrath's "description is not so contrary to
habeas proceedings.                                                Lott's actual appearance that it would have made a material
                                                                   difference in the outcome of Lott's trial." (Case No. 95 CV
    i. Evidence presented at trial                                 2642, Doc. 109, at 60). Upon review of the evidence and
    The Court briefly reviews the most inculpatory evidence        testimony presented during the evidentiary hearing, the
the prosecution presented during Lott's trial. The Court           Court's conclusion remains unaltered. As stated above, Art
acknowledges that the majority of this evidence is                 McCoy testified during the evidentiary hearing that
circumstantial. The prosecution presented the testimony of         McGrath frequented his barbershop during the summer of
several police detectives who stated that a shoe print found       1986. He stated that McGrath would receive a haircut
in the dusty floor of McGrath's bedroom generally matched          approximately every two to three weeks. (Doc. No. 85, at
a pair of shoes found in Lott's possession. Moreover, the          54). Thus, it is fair to assume that McGrath was referring to
prosecution presented testimony that Lott's fingerprints           McCoy's barbershop when mentioning it to the police.
were on a church envelope that recently had been mailed to         McCoy also testified during cross-examination that Lott
McGrath, and another fingerprint matching Lott's was               frequented the area around the barbershop. Id. at 59. He
found in McGrath's bedroom. And, the prosecution                   conceded, moreover, that Lott actually entered the
presented uncontroverted evidence that Lott had been in            barbershop on several occasions. Id. Thus, McGrath's
McGrath's home on prior occasions and was, thus, obviously         barbershop statement only serves to undermine Lott's
familiar with the home and with the fact that the home             innocence claim.
belonged to McGrath.                                                   McGrath's physical descriptions of Lott, however, are
    The only direct evidence linking Lott to McGrath's             less clear cut. While the Court, as stated above, finds
murder was the testimony of Diedrea Coleman. Coleman               consistent with its earlier conclusion that McGrath's
identified Lott from a photo array as the man who she had          description does not depart significantly from Lott's actual
seen driving a Ford Escort, which was later determined to          appearance, particularly his description of Lott's height,
be McGrath's, in her neighborhood. She stated that her             which varied only two inches from Lott's actual height, the
suspicions became aroused when she viewed Lott around              other aspects of the identification present some discrepancies
her neighbor's home. She later observed Lott                       that are inexplicable. Lott's complexion, upon observation,
                                                                   cannot be characterized as "very light," as McGrath
                                                                   described him. Less significant was Lott's hair
Nos. 05-4336; 07-4294                                Lott v. Bagley                                                      Page 6

length, a physical characteristic which was readily                        the identification, they do not render the
changeable. Kyle testified at the hearing that Lott's hair length          Ohio court's reliability determination
remained constantly short throughout the summer of 1986.                   unreasonable....
While the Court does not suspect the veracity of Kyle's
recollection, it also is mindful that Kyle's memory of Lott's
hair length, a fairly insignificant fact given the events of that   (Case No. 95 CV 2642, Doc. 109, at 65).
summer, could have been mistaken. In sum, the Court finds
                                                                        Moreover, Coleman's assertion that Lott had a
that the only evidence supporting Lott's actual innocence
                                                                    "reddish" complexion is less compelling when taken in the
based on McGrath's identification of him is McGrath's
                                                                    context of her trial testimony. When defense counsel
description of his complexion.
                                                                    questioned her on cross- examination regarding the "reddish"
    Viewing this description in light of the time and               pigment she described as Lott's skin tone, she elaborated as
condition in which it was received serves to undercut its           follows:
import, however. Although Detective Copeland testified
during the hearing that, pursuant to his typical practice and                  A: Like you have got some black people
routine, he would not interview a victim unless lucid, it is               who have a bluish tone, and some have a
undeniable that McGrath's age, and certainly his medical                   yellowish undertone, and some have - - like
condition at the time of the statement, must be considered                 tannish. You have different shades,
when assessing its significance. Along with his physical                   variations.
description of Lott, McGrath also stated during the identical
police statement that, "the suspect came back on Monday
and let him [McGrath] drive his [own] car." (Doc. No. 17,           (Trial Tr., at 136). She also admitted that her sketch of Lott
Exh. B, at 1). He thereafter stated that "he was not sure if        was not a "true rendering" of Lott's features, Id. at 131. She
this happened or not." Id. These statements hardly inspire          stated that she was not attempting to be accurate, instead
confidence that McGrath's description, supplied two                 choosing to prepare a sketch quickly so that police could
sentences later, was accurate. ''                                   apprehend the individual. She had expected that a police
                                                                    artist would subsequently enhance the drawing because
         17 Lott also raised the issue that McGrath failed to       "they [were] trained in that field," and she was not. Id.
         identify Lott from the composite sketch created by
         Coleman. A review of the police report depicting                   18 Lott also raised the issue about whether Lott used
         this display reveals, however, that McGrath merely                skin-lightening makeup to alter his skin tone. As
         was not responsive when shown the sketch. He died                 Lott observes, there is nothing in the trial record to
         several hours later. (Doc. No. 17, Exh. C). Thus, the             support the assertion that Lott ever used skin makeup
         Court does not consider this fact to be helpful to                to alter his complexion. The issue was raised as
         Lott.                                                             conjecture during the trial and deposition testimony of
    ii. Coleman identification                                             Coleman. Lott asserts the Respondent raised this
                                                                           issue to deflect the obvious discrepancy between
    Lott raised the issue of Coleman's identification of him,              McGrath's description of his assailant and Lott's
albeit pursuant to another claim, in his first federal habeas              actual skin tone.
petition. The Court found Coleman's description of Lott,
crafted after she had viewed him perusing her neighborhood,                     As Judge Boggs found in his opinion dissenting
to be credible because                                                     from the Sixth Circuit's grant of permission to file
                                                                           a second habeas petition, the skin-lightening
            she had a reason to observe him, thus                          theory "seems unlikely." In re Lott, 366 F.3d 431, 437
       suggesting that she would pay a close degree                        (6th Cir. 2004)(Boggs, J., dissenting). Given the fact
       of attention to his appearance (and would                           that the Court already has called McGrath's
       have reason to remember it). The fact that                          identification of Lott into question because of his
       she described Lott as having worn a running                         medical condition at the time he provided the
       suit which was identical to the one found in                        description, the Court declines to speculate further
       Lott's car also makes her identification more                       on this issue.
       reliable. Though there are factors, including                    b. Lamp oil issue
       the apparent differences between Coleman's
       sketch of the man she saw and Lott's actual                      During closing arguments at trial, the prosecutor argued
       appearance, which somewhat weaken the                        that Lott had brought lamp oil with him to McGrath's
       reliability of                                               home, intending to set him afire. The records
Nos. 05-4336; 07-4294                              Lott v. Bagley                                                  Page 7

post-conviction counsel received in 1991 reveal that,           he and co-counsel were aware that there was no evidence
among McGrath's possessions, was a kerosene lamp that           to support the prosecutor's statement that Lott brought
would have used lamp oil to be ignited. Lott asserts that the   the lamp oil with him. (Doc. No. 85, at 43).
prosecutor's argument that there was no reason for                  Because Lott was tried before a three judge panel, this
McGrath to have lamp oil in his home was an outright            Court must assume that the panel was aware of the lack of
fabrication to prove the element of Lott's intent to kill.      evidentiary support for the prosecutor's claim. The panel
    During closing statements, the prosecutor attempted to      also was well aware that the prosecutor's argument did not
counter defense counsel's assertions that McGrath may have      constitute evidence during the trial. Thus, Lott is hard
accidentally ignited himself by arguing as follows:             pressed to demonstrate that the comment had any effect
                                                                on the outcome of the trial or has any relevance here. The
             The physical examination of his house              Court finds that the fact that a kerosene lamp was found in
       unquestionably shows aggravated burglary                 McGrath's home does not tend to demonstrate Loft's
       and aggravated robbery as stated in the                  actual innocence.
       indictment and the laws of the State of Ohio.                iii. Loft's confession
       But to consider the specific intent that the
       killer had to kill Mr. McGrath.                              As the House Court dictates, this Court must consider
                                                                all evidence, both inculpating and exculpating, when
             I'm not going to even seriously consider           reviewing an actual innocence claim. House v. Bell, 126
       those suggestions made by defense counsel                S.Ct. at 2077; Lott v. Coyle, 261 F.3d at 621. Thus, while
       concerning the bottle of lamp oil. Nothing in            this statement was suppressed before trial and the panel
       that man's house that uses kerosene or lamp              did not consider it because Lott's counsel was not present
       oil. So, with that in mind, consider the intent          when it was given, the Court now considers the statement
       of the individual who would break into an old            Lott made to Detective James Hughey after his arrest
       man's house, knowing the frailty that age has            when assessing his actual innocence. The police report
       inflicted on him, bringing with him a cord to            containing this statement reads as follows:
       tie him up and the lamp oil to burn him.
             You may argue that a person that has a                      When questioned about the above incident
       gun and kills somebody does it by accident, a                  with Mr. John McGrath he started crying. He
       knee jerk reaction or a spasm, or for some                     stated he never intended to hurt Mr.
       reason reacted to some fear instilled by the                   McGrath. He went over to Mr. McGrath's
       victim.                                                        house at 7:00 a.m. sometime in the middle of
                                                                      July and went to the back of the house and
            You cannot but look upon this act as
                                                                      broke out a basement window. He went into
       deliberate, vile and specifically intending to
                                                                      the house and found Mr. McGrath in a front
       cause the death of Mr. McGrath; that he was
                                                                      bedroom on the main floor of the house. He
       tied up and that the killer poured this
                                                                      stated that the next thing he knew Mr.
       flammable substance on him and ignited him.
                                                                      McGrath was tied up. He remembers using
                                                                      either a telephone cord or electrical wire to
Trial Tr. at 778-79.                                                  tie him up. McGrath wasn't in bed when this
                                                                      took place but he doesn't remember or
    The Court finds that, while the prosecutor's assertions           know why he wasn't.
regarding the lamp oil may be the subject of a prosecutorial               After he was tied up he took his car keys
misconduct claim, they are immaterial to Lott's claim of              which were on a dresser or table ei-
actual innocence. As Judge Boggs observed in his dissent
from the granting of the application to file a successor
petition:
            Assuming that McGrath owned the oil, it
       was available to Lott, who used it in his attack
       on the victim. Were this an argument about
       prosecutorial misconduct in the penalty
       phase of a capital trial, I would see the
       relevance. In this context, Icannot draw any
       inference from the oil that indicates Lott's
       innocence.


In re Lott, 366 F.3d 431, 437 (6th Cir. 2004). Although his
opinion is not binding on this Court, the Court finds Judge
Boggs's reasoning to be persuasive. Moreover, during the
evidentiary hearing, defense counsel Kersey admitted that
Nos. 05-4336; 07-4294                             Lott v. Bagley                                                        Page 8

       ther in the bedroom or the room next to it and           der charges, he claims that he never even spoke to Hughey
       left the house and got into the car, which               regarding the McGrath murder. Id. at 20.
       was in the driveway and drove off with it. He
                                                                    The Court finds Lott's attack on Hughey's credibility
       described McGrath's car as being a smaller
                                                                unavailing. Not only is there no evidence in the record that
       model car, dark in color.
                                                                Hughey had any reason to fabricate the confession, the
             When asked about any type of                       confession itself undercuts any claim that it was fictionalized.
       flammable [sic] fluid or liquid being put on             First, the absence of reference to an outright admission
       Mr. McGrath and then setting it on fire he               regarding the arson is telling -- had Hughey invented Lott's
       stated that he didn't remember anything                  words, he would likely have completed the story. Second,
       about that. He was asked about why he                    details provided in the statement are itself telling -- all being
       broke into Mr. McGrath's house and why                   later corroborated by the murder investigation. Lott's
       did he tie him up he stated he didn't know               confession comports with police testimony stating that the
       why he broke into the house, he didn't want              assailant broke in through a basement window, that
       him to contact the police when he left the               McGrath was tied up with a telephone cord, and that the
       house with his car....                                   assailant left McGrath in the bedroom. Moreover, it
           When questioned about his intent in the              substantiates both Coleman's testimony and McGrath's
       McGrath incident he stated he didn't know.               statement that Lott was driving McGrath's car. For these
       He stated he didn't intent [sic] to hurt                 reasons, the Court credits Respondent's assertion that Lott,
       anyone and that he didn't know what he was               in fact, provided the above- described confession shortly
       doing. He stated that he would do anything to            after the murder.
       keep from [going] to the [electric] chair.                   c. Conclusion
                                                                    In reviewing all the evidence regarding Lott's actual
Lott v. Coyle, 261 F 3d 594, 620-21 (6th Cir. 2001).            innocence of McGrath's murder, the Court finds, for the
                                                                reasons stated above, that he falls far short of establishing,
    When reviewing Lott's actual innocence claim on             as he must to prevail on a successor petition, that he can
appeal from his first federal habeas petition, the Sixth        establish his actual innocence by clear and convincing
Circuit found Lott's confession to be significant. Although     evidence. Although McGrath's description of Lott's skin
it initially opined that it was "troubled" that Lott was        tone would tend to exculpate Lott, other evidence Lott
convicted based solely on circumstantial evidence, the Sixth    maintains proves his actual innocence does not, in fact, do
Circuit reasoned that if Lott's statement ultimately were       so. Upon further review, some of these materials, such as
found to be reliable, it would present the Court with more      McGrath's assertion that he knew his assailant from his
direct evidence of Lott's guilt. It held, "[a] more detailed    barbershop, tend to further implicate Lott. Given the
review of the circumstances than appears in this record may     circumstantial evidence presented at trial and Lott's
show that Lott's inculpatory statement, although suppressed     confession, the Court finds that Lott fails to meet the
at trial, was voluntarily made and admits of no reason to       standard set forth in § 2244(b)(2)(B)(ii). Thus, pursuant to
doubt its reliability or truthfulness." Id. at 621.             that statute, his successor petition must be dismissed.
    Although Lott now attests that this statement was a             2. Schlup v. Delo
complete fabrication, the Court observes both that Lott first
                                                                    Even if the Court were to disregard the heightened
made such an assertion in 2002, during his clemency hearing
                                                                statutory standard of actual innocence, it would find that
and that Lott presented no evidence at the hearing before
                                                                Lott could not establish his actual innocence pursuant to
this Court which supports that claim. Thus, Lott did not
contest the veracity of this statement in any of his prior      Schlup. As discussed above, Schlup and House dictate that,
proceedings and has still yet to do so in any meaningful way.   to establish actual innocence, a habeas petitioner must
    During a deposition taken during the second habeas          demonstrate that it is "more likely than not, in light of the
proceeding, Lott denied he made any statement regarding his     new evidence, no reasonable juror would find [the petitioner]
involvement in the McGrath murder. Instead, he maintained       guilty beyond a reasonable doubt-or, to remove the double
that Hughey spoke to him about someone he knew by the           negative, that more likely than not any reasonable juror
name of Freddie Robinson and his brother. (Doc. No. 69,         would have reasonable doubt." House, 126 S. at 2077.
Exh. 2, at 18). Although Lott conceded that he became               As stated above, most of the new evidence Lott
emotional after being arraigned on mur                          presents in support of his innocence does not prove it. The
                                                                Court found that only the McGrath skin tone description
Nos. 05-4336; 07-4294                          Lott v. Bagley   Page 9

would support his innocence. All other evidence Lott
presented was either neutral, neither establishing nor
undercutting his guilt, or tended to inculpate him. This
new evidence coupled with the evidence presented at
trial and Lott's confession do not establish that it is
more likely than not that any reasonable juror, hearing
all this evidence, would have reasonable doubt about
Lott's guilt. Lott cannot establish his actual innocence
pursuant to Schlup. Accordingly, the Court must also
find that Lott has failed to establish a "gateway" by
which to excuse the procedural default of his Brady
claims. Thus, Lott is not entitled to a merit review of
them.
