                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-6518


CHARLES RAY FINCH,

                     Petitioner – Appellant,

              v.

SUPERINTENDENT TIMOTHY MCKOY,

                     Respondent – Appellee.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:15-hc-02302-D)


Argued: November 15, 2018                                     Decided: January 25, 2019


Before GREGORY, Chief Judge, KEENAN, and FLOYD, Circuit Judges.


Reversed and remanded by published opinion. Chief Judge Gregory authored the
opinion, in which Judge Keenan and Judge Floyd joined.


ARGUED: James Earl Coleman, Jr., DUKE UNIVERSITY SCHOOL OF LAW,
Durham, North Carolina, for Appellant. Nicholaos G. Vlahos, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF:
Nita A. Farahany, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina,
for Appellant. Joshua H. Stein, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for Appellee.
GREGORY, Chief Judge:

       Petitioner Charles Ray Finch appeals the denial of his federal habeas petition. In

1976, a jury in Wilson, North Carolina convicted Finch of first-degree murder. Finch

originally received a death sentence, but in 1977, the North Carolina Supreme Court

commuted his sentence to life imprisonment. In 2015, Finch filed a habeas petition in the

United States District Court for the Eastern District of North Carolina. The district court

denied Finch’s petition. Because the present record meets the exacting standard for the

actual innocence gateway to consideration of a constitutional claim, we reverse the

district court’s decision and remand the petition for adjudication on the merits.


                                             I.

       In the years after his 1976 conviction, Finch filed various pro se and counseled

motions for relief with North Carolina state courts but received orders denying all of

them. On December 17, 2015, Finch filed a federal habeas petition in the United States

District Court for the Eastern District of North Carolina. The State moved for summary

judgment on August 1, 2016 on multiple grounds, including on the basis that Finch’s

claims were time barred. Without reaching the merits of the habeas petition, the district

court granted the State’s motion for summary judgment based on untimeliness and

dismissed the petition as timed barred. The district court also found that Finch did not

meet the actual innocence standard required to overcome his untimeliness. Finch filed a

notice of appeal on April 14, 2017.       On May 1, 2018, we granted a certificate of




                                             2
appealability. We have jurisdiction under 28 U.S.C. § 2253(c) on the claim of actual

innocence.


                                            II.

       This Court reviews de novo a district court’s denial of a 28 U.S.C. § 2254 petition

filed by a state prisoner. MacDonald v. Moose, 710 F.3d 154, 159 (4th Cir. 2013). The

district court dismissed Finch’s petition as untimely because, under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner normally has one year

to file a federal petition for habeas corpus, beginning at the date that a “judgment became

final by the conclusion of direct review or the expiration of the time for seeking such

review.” McQuiggin v. Perkins, 569 U.S. 383, 388 (2013). The record reflects that all of

Finch’s claims are untimely. However, Finch alleges actual innocence, which, if proven,

serves as a gateway through which a habeas petitioner may pass when AEDPA’s statute

of limitations has expired. See McQuiggin, 569 U.S. at 386; see also Schlup v. Delo, 513

U.S. 298, 329 (1995). “This rule, or fundamental 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.” McQuiggin, 569 U.S. at

392 (internal quotation marks omitted).


                                           III.

      In order to properly examine Finch’s claims of actual innocence, we must first turn

to the evidence and testimony considered at the 1976 trial. The State proffered one

eyewitness, Lester Floyd Jones, as the bedrock of its case. Jones worked for the murder


                                            3
victim, Richard Linwood Holloman, at a grocery store and gas station Holloman owned.

Jones testified that he was with Holloman at the store on February 13, 1976, the night of

the murder. Jones testified that around 9:00 p.m. he and Holloman were at the store and

in the process of locking up for the night. Holloman turned off the store’s interior lights,

collected the cash from the register, and placed a padlock on the exterior of the front

door. During this time, Jones said he heard three male voices coming from the direction

of the highway and observed three black men approaching the station. Jones testified that

two of them approached Holloman and Jones and one remained back, outside of the store

lights’ illumination.

       Jones described one of the men as wearing a long, three-quarter-length coat, a

woman’s light-colored stocking on his hair, dark pants, and a light shirt. Jones later

identified this man as Finch. Jones described the other man that approached him and

Holloman as wearing a red and white checkered shirt, dark pants, and a red toboggan.

The man in the checkered shirt asked Holloman if he could buy some alka seltzer and

Holloman obliged. Holloman reopened the front door as Jones and the two black males

waited outside. Holloman opened the door with his left hand while holding a chrome-

plated .32 revolver in his other hand in plain view. Jones testified that the interior lights

were turned off but that lights from outside the store shone in through large windows and

provided illumination.

       Once inside, Holloman asked one of the men if he would like a cup, so he could

take his alka seltzer. The man replied, “Yes, sir.” Jones testified that Finch chimed in

and said, “And your money, too.” Holloman said, “Money hell,” and Finch said, “I said


                                             4
your damn money, too” and removed a sawed-off shotgun from under his coat and fired

at Holloman. Holloman returned fire at Finch with his chrome-plated .32 revolver. After

the first shot, Jones dove under a counter and hid there but recalled that Finch faced

Holloman during the shootout. Jones testified that he heard a shotgun and that he knew

how to distinguish between the sound emitted from a shotgun and the sound emitted from

a pistol. Jones recalled hearing three shots. Jones testified that he heard the shooting

stop, the door to the shop slam shut, and Holloman calling out to him to call the police.

Jones testified the entire episode lasted around five minutes. Holloman succumbed to his

injuries.

       Jones testified at trial that he recognized Finch as one of Holloman’s customers

whom he served a few days prior to Holloman’s murder. When law enforcement arrived

on the night of the crime, a patrolman asked Jones to provide a written statement

regarding what he witnessed. Jones wrote what he observed generally and stated he saw

three black males and a sawed-off shotgun and used descriptors such as “checkered shirt

tobebogging[sic].” Jones did not mention any of the suspects having beards.

       Chief Deputy Tony Owens, one of the lead law enforcement officers on the

Holloman case, interviewed Jones the night of the murder. Deputy Owens testified that

Jones described a black man in a checkered shirt, about 28-30 years old, around 5 feet 7-8

inches tall, weighing around 150-170 pounds, with a light complexion, a thin mustache,

and kinky hair. He was wearing a red-and-white toboggan, a red-and-white checkered

shirt with long sleeves and dark pants. According to Deputy Owens, Jones said he did

not get a really good look at the second man but described the man as a black male,


                                            5
around 35 years old, about 5 feet 9 inches to 6 feet tall, weighing between 150 and 165

pounds, with a dark complexion and wearing a light-colored stocking as a hat, dark pants

and a dark three-quarter-length coat.

       In addition to the eyewitness testimony of Jones and Deputy Owens’s

corroboration, there was evidence of a pretrial line-up. Deputy Owens called Jones into

the Wilson County Jail on February 14, 1976, and asked Jones to assist him in identifying

the suspect in a line-up. Finch and another suspect, Charles Lewis, were placed into a

series of three line-ups at the Wilson County Jail that same night. Finch was wearing a

three-quarter-length leather coat and a hat at the time of his arrest. Police lined up seven

black males around the same age wearing casual clothes and stood them against a wall.

The black males held signs with numbers on them. Finch and Lewis both had beards at

the time of the line-up.

       Jones selected Finch three times as the murderer in separate but consecutive line-

ups. Jones identified Finch as numbers 4, 5, and 2 of the line-ups respectively. Jones did

not identify Lewis in any of the three line-ups despite his presence in the red-and-white

checkered shirt with long sleeves that matched Jones’s earlier description of a suspect.

Deputy Owens alleged that he took Finch’s jacket and hat and put it on another man in

the line-up. The record demonstrates that in all three line-ups Finch had on the same

three-quarter length jacket. Finch was the only one wearing a hat in one of the line-ups.




                                             6
       In addition to the line-ups, the State had a witness named Noble Harris provide

testimony implicating Finch. Law enforcement interviewed Harris, * a frequent visitor to

Holloman’s store who lived about a mile from the store and went to the store around

twilight the night of Holloman’s murder. Harris purchased a beer and a quart of wine.

Harris mentioned he wanted to avoid inebriation because he had to work the next day.

Holloman explained he had a party and would be closing the shop soon. As Harris left

the gas station, he noticed Finch getting out of a blue Cadillac; they greeted each other

from afar, and Harris went home. Harris testified he saw other people in the car, but they

did not leave the vehicle. A few hours later, after receiving news of the murder, Harris

returned to the store around 10:00 p.m. Harris gave a statement to Deputy Owens about

seeing Finch at the store earlier that evening.

       The State also provided physical and medical evidence during the 1976

proceedings implicating Finch. Law enforcement searched Holloman’s store and found

various bullet fragments and gun discharges. They also discovered Holloman’s gun

containing only one spent bullet and all the remaining rounds which were lead bullets.

Police in North Carolina arrested Finch the same night that Holloman was killed. Police

apprehended Finch and his passenger Charles Lewis as they rode around in Finch’s blue

Cadillac on Nash Street in Wilson. Finch consented to a police search of his blue

Cadillac after his arrest. Law enforcement personnel found a “W W No. 1. Buck”

shotgun shell in the left rear door ash tray. At trial, Dr. Henry Haberyan, the State’s


       *
           Jones also testified that Harris was at the store earlier that evening.


                                                 7
forensic pathologist, provided testimony that Holloman died from two shotgun wounds.

The doctor used the term “slug” to describe the shotgun bullets. The doctor had also

listed in his initial report that it was a wound resulting from a shotgun.

       At trial, there was also evidence presented by Finch that provided doubt regarding

the eyewitness testimony implicating him.         For instance, Jones’s former coworker,

Bobby Taylor, testified that a week after Holloman’s murder, Jones told him that he only

thought that Finch was the one who killed Holloman. Moreover, Jones asked Taylor to

describe Finch’s appearance. Taylor stated that Jones had cognitive issues, struggled

with alcoholism, and had issues with short-term memory recall.               In addition, three

witnesses, Mr. McEachin, Mr. Artis, and Mr. Spells, each testified that Finch could not

have shot Holloman because he was playing a poker game at Tom Smith’s Shoeshine

Parlor in downtown Wilson with them on February 13, 1976, around the same time that

Holloman was murdered. Mr. McEachin mentioned that Finch left the poker game for a

few hours to run a couple of errands for him. Nonetheless, Mr. McEachin, Mr. Artis, and

Mr. Spells all testified that Finch was in their presence at the Shoeshine Parlor at the time

of Holloman’s murder.

       Evidence was proffered to call into question the physical evidence introduced at

trial as well. Finch’s son Taylor testified that his father had purchased a used car, the

blue Cadillac, four months prior to Holloman’s murder. Taylor testified that he was

cleaning out his dad’s car prior to the murder and found the shotgun shell under the seat

and placed it into the glove compartment.

       On this evidence, the jury found Finch guilty of first-degree murder.


                                              8
                                              IV.

         This Court must also take into consideration new evidence proffered since the

1976 trial that has a bearing on Finch’s actual innocence. First, Finch has offered

evidence that casts doubt on the eyewitness testimony dating back to the original

proceeding, but that was only revealed years afterwards.          For instance, in 2003,

Noble Harris provided an updated affidavit, in which he expressed doubts that he saw

Finch outside of the store the night of Holloman’s murder and that it was only a brief

encounter. He stated that he relayed his uncertainty to Deputy Owens when he returned

to the store after Holloman’s murder that night. Harris recounted in the affidavit that

Deputy Owens and the prosecutor pressured him into sticking to his original story

implicating Finch. He asserted that the prosecutor and Deputy Owens took him into a

little room in the courthouse and asked him repeatedly if he saw Finch that night.

According to Harris, the prosecutor and Deputy Owens also told him that Jones was

going to testify that Harris was at the store when the murder happened. Harris replied

that Jones was “going to testify to a lie.”

         In addition, in 2013, Deputy Owens testified at Finch’s post-conviction hearing.

He said an informant told him Finch and two others were planning on robbing a

convenience store in Wilson County. He admitted that armed robbery was not consistent

with Finch’s background but nonetheless, he still had Finch in mind even before he had

arrived at Holloman’s store.

         In 2013, there was also evidence casting doubt on the physical evidence offered at

trial.   For instance, Dr. John D. Butts, North Carolina’s Chief Medical Examiner,


                                              9
clarified that the term “slug” in Dr. Haberyan’s letter generally referred to bullets and not

only bullets coming from a shotgun. Dr. Haberyan submitted a 2002 letter where he

stated that the autopsy report should have used the term “gunshot wounds” instead of

“shotgun wounds.” Dr. Butts’ stated that based on Dr. Haberyan’s report it is unlikely

that a shotgun created the effects on Holloman’s body as observed through the autopsy.

Additionally, in 2013, Special Agent Peter Ware, the forensic scientist manager in charge

of the firearm toolmark section of the North Carolina State Crime Laboratory, provided

testimony that the bullet found at the crime scene, which was presented at trial, and the

shell found in Finch’s blue Cadillac did not come from the same firearm.

       Finally, new expert evidence proffered in 2013 called into question Finch’s

culpability based on an unduly suggestive pretrial line-up. Brian Cutler, an expert on

eyewitness identification from the University of Ontario Institute of Technology, testified

on behalf of Finch.     Dr. Cutler has multiple advanced degrees in psychology.          He

specializes in social psychology, forensic psychology, and specifically, the psychology of

social influence and eyewitness memory. The court admitted Dr. Cutler as an expert

witness.

       To form his opinion, Dr. Cutler used: (1) the voir dire and trial testimony of Jones

and Deputy Owens; (2) the handwritten statement Jones wrote on the hood of the

highway patrolman’s car on the night of Holloman’s murder; (3) photographs of the three

line-ups; and (4) photographs of the interior of Holloman’s store. The expert provided

opinions regarding how: (1) certainty in eyewitness identification is generally related to

accuracy; (2) eyewitness confidence can be affected by suggestive procedures;


                                             10
(3) distinctive clothing can make identification easier; (4) repeated attempts to recognize

or remember information can increase confidence; (5) suggestiveness is more of a

problem when memory of the perpetrator is weak; and (6) the wearing of a head covering

can make it difficult to perceive a perpetrator’s facial and physical characteristics.

       Cutler identified two critical factors that may have increased the risk of

misidentification of the in-person line-ups conducted by Deputy Owens.                   Cutler

explained there was a significant risk of witness misidentification because: (1) Finch

wore a dark three-quarter-length coat in all three line-ups in which Jones identified him

and (2) Finch was placed in three successive line-ups. Nonetheless, Cutler agreed that he

couldn’t prove that Finch was misidentified in this particular case and that sometimes an

eyewitness identifies a subject because that subject committed the crime.


                                             V.

                                             A.

       “Courts have consistently emphasized that actual innocence for the purposes of

Schlup is a procedural mechanism rather than a substantive claim.” Teleguz v. Pearson,

689 F.3d 322, 327 (4th Cir. 2012). A valid actual innocence claim “requires petitioner to

support his allegations of constitutional error with new reliable evidence — whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence — that was not presented at trial.” Schlup, 513 U.S. at 324. A petitioner must

also “demonstrate that the totality of the evidence would prevent any reasonable juror

from finding him guilty beyond a reasonable doubt, such that his incarceration is a



                                             11
miscarriage of justice. If a petitioner passes through the Schlup gateway by satisfying

this standard, the district court then considers and reaches the merits of all of the

petitioner’s procedurally defaulted claims.” Teleguz, 689 F.3d at 329 (internal citations

omitted). In evaluating the petitioner’s claim, “the district court is not bound by the rules

of admissibility that would govern at trial” and must consider “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, 513 U.S. at 327-28 (internal quotation marks

omitted).

                                             B.

       To establish an actual innocence claim Finch must support allegations of

constitutional error with new reliable evidence that was not proffered at trial. See Schlup,

513 U.S. at 324. He alleges due process violations under the Fourteenth Amendment and

relies on expert evidence proffered by Dr. Cutler.

       We find that Dr. Cutler’s evidence of impermissibly suggestive procedures

supports Finch’s allegations of a violation of the Due Process Clause of the Fourteenth

Amendment, which protects individuals from unreliable identifications that stem from

impermissibly suggestive procedures. Manson v. Brathwaite, 432 U.S. 98, 113 (1977);

Neil v. Biggers, 409 U.S. 188, 198 (1972) (finding that the “likelihood of

misidentification […] violates a defendant’s right to due process”). First, as Dr. Cutler

explained, the fact that Finch was the only suspect wearing a three-quarter-length coat in

all of the line-ups rendered the line-ups procedurally improper and may have led Jones to


                                             12
base his identification on a cue, the coat, instead of his original memory of the

perpetrator’s face or other physical characteristics. Second, Dr. Cutler explained that

when a suspect wears a hat, as Finch did in one of the line-ups, it can make it difficult to

remember a person’s physical characteristics, and it also weakens the witness’s memory.

These procedural issues support Finch’s allegations of constitutional error that he was

misidentified by Jones. No reasonable juror would likely find Finch guilty beyond a

reasonable doubt if it knew the high likelihood that he was misidentified by Jones both

outside and inside the courtroom as a murder suspect because of impermissibly

suggestive procedures.

                                            C.

       Finch must also demonstrate that it is more likely than not that “the totality of the

evidence would prevent any reasonable juror from finding him guilty beyond a

reasonable doubt.” Teleguz, 689 F.3d at 329. An actual innocence finding “requires a

holistic judgment about all the evidence and its likely effect on reasonable jurors

applying the reasonable-doubt standard.”      House v. Bell, 547 U.S. 518, 539 (2006)

(internal citations and quotation marks omitted). Based on the total evidentiary record,

this Court must “make a probabilistic determination about what reasonable, properly

instructed jurors would do. The court’s function is not to make an independent factual

determination about what likely occurred, but rather to assess the likely impact of the

evidence on reasonable jurors.” Bell, 547 U.S. at 538 (internal citations and quotations

omitted). Looking at the record as a whole, we find that Finch satisfies this exacting

standard.


                                            13
       As an initial matter, this is a case where there is no physical evidence implicating

Finch. The theory at trial was that Jones witnessed Finch murder Holloman with a

sawed-off shotgun. However, new evidence demonstrates that it was a pistol and not a

shotgun that killed Holloman. Furthermore, there is new expert testimony finding that

the shells recovered from the crime scene cannot be matched with the shotgun shell found

in Finch’s blue Cadillac. This new evidence not only undercuts the State’s physical

evidence, but it also discredits the reliability of Jones, who testified that he saw Finch use

a sawed-off shotgun to kill Holloman. The medical and the ballistic evidence would

likely cause any reasonable juror to lend credence to Finch’s son’s assertion that he had

found a shotgun shell in his father’s car months before Holloman’s murder.              Even

Deputy Owens admits in new evidence that this sort of armed robbery would have been

atypical for Finch.

       The Government argues that because its theory of liability relies on the felony-

murder rule it does not matter what type of firearm Finch allegedly used or who among

the three black males even murdered Holloman. The record reflects that the trial court

provided inconsistent instructions to the jury regarding felony murder but ultimately

required the jury to find that Finch fired the fatal shot in order to convict him of first-

degree murder. Consistent with this instruction, the state had argued to the jury that

“Finch was the trigger man who shot and who killed Richard Holloman” because Jones

testified that he saw Finch use a sawed-off shotgun. The new evidence showing that

Holloman’s wounds were not in fact caused by a shotgun significantly undermines this




                                             14
crucial factual determination that Finch was the shooter, which the jury was instructed to

make before convicting Finch of first-degree murder.

       Moreover, arguments about felony-murder rule liability are non-responsive to

Finch’s arguments that Jones misidentified him. If Jones lacks credibility to identify a

murder weapon, any reasonable juror would likely question his credibility to accurately

relay what he saw the night of Holloman’s murder. If Jones’s account of the murder

weapon cannot be trusted, then any reasonable juror likely would not credit his

recollection that Finch was at the store. Harris has already provided new evidence that he

most likely did not see Finch at the store that night, further calling into question Jones’s

recollection. Criminal liability under any theory, including the felony-murder rule, would

not attach to Finch if there is no evidence that he was at Holloman’s store during the

murder.

       Next, given the lack of physical evidence, Jones’s eyewitness testimony forms the

crux of the State’s case against Finch, and it is more likely than not that any reasonable

juror would find that Jones’s account lacks credibility.         For example, given the

impermissibly suggestive line-up, a reasonable juror would likely doubt Jones’s pretrial

out-of-court identification of Finch and his in-court identification of Finch as well. Even

though Jones expressed certainty about his identification, the line-up procedures would

reasonably be seen to taint his credibility. In addition, there is older evidence from

Taylor, also confirmed in a 2002 affidavit, that described Jones as an alcoholic and

explained how Jones had cognitive issues, memory trouble, and problems with short-term

recall. The evidence of Jones expressing his uncertainty to Taylor, coupled with Jones’s


                                            15
memory issues, would cause any reasonable juror to doubt his credibility as a key

eyewitness.

       Jones’s credibility is further weakened because he did not identify key physical

descriptions of Finch and Charles Lewis. Finch and Lewis both had beards the night of

their arrest, and Jones did not mention this type of facial hair in his description to the

police officer at the crime scene or in his statement to Deputy Owens. Any reasonable

juror would look at this evidence and likely question whether Jones actually saw Finch at

the store the night of the murder.

       In addition, newly proffered evidence weakens previously submitted evidence

corroborating Jones’s eyewitness account. For instance, Harris testified during the 1976

trial that he saw Finch near the gas station. This evidence buttressed Jones’s testimony

that he saw Finch at the gas station the night of Holloman’s murder. However, Harris’s

2002 affidavit expresses doubts about whether Finch was present at the gas station that

night at all. Indeed, when Deputy Owens took Harris’s statement the night of the murder,

it was Deputy Owens and not Harris who brought up Finch’s name as a suspect.

Deputy Owens questioned Harris about Finch before Harris provided any testimony

relative to seeing Finch. The affidavit explains that Deputy Owens repeatedly questioned

Harris, attempting to elicit testimony placing Finch at the crime scene earlier that night.

However, Harris continued to express doubts, the night of the murder and as of his new

affidavit, about whether he saw Finch earlier that night at Holloman’s store. Harris

alleges that at one point during a break in the trial Deputy Owens and a prosecutor took

Harris into a room and told him that Jones was going to testify at trial that Harris was


                                            16
present during the murder. Harris replied that Jones would be testifying to a lie. These

exchanges would likely give pause to any reasonable juror. Moreover, Harris’s effective

recantation undercuts Jones’s eyewitness identification of Finch at the gas station that

night. A reasonable juror likely would decide that the State failed to prove Finch’s

presence at the gas station that night beyond a reasonable doubt. The record contains

testimony from three alibi witnesses that would likely seem more credible to any

reasonable juror given the uncertainty of whether Finch can definitively be placed at the

gas station that night.

       In addition to Jones’s testimony, Deputy Owens’s testimony provided significant

support for the State’s case against Finch, but new evidence regarding Deputy Owens

would likely cause any reasonable juror to doubt his testimony implicating Finch in the

murder. Deputy Owens was a major witness during the trial, and many of the facts

describing Finch come from his testimony about what Jones relayed to him that night.

For example, even though Jones and Harris were at trial, Deputy Owens provided hearsay

that supplemented their own testimony. Deputy Owens’s “corroborating” testimony

contains details that were never in Jones’s eyewitness account, such as height and weight

descriptions. In addition, at trial Harris could not remember a specific time he visited

Holloman’s store, but Deputy Owens testified that Harris relayed to him that night that

Harris visited Holloman’s store from 7:45 p.m. until 8:20 p.m. Deputy Owens’s hearsay

testimony provided important bolstering evidence that placed Finch at the gas station at

the time of Holloman’s murder.




                                           17
       Despite this testimony implicating Finch in the murder, new evidence has surfaced

that undermines Deputy Owens’s credibility and that would likely have impacted any

juror’s assessment of his testimony. There is record evidence that Deputy Owens worked

with the prosecutor in attempting to pressure Harris into testifying at trial that he was at

the store at the time of the murder. Harris never stated that he was there at the time of the

murder nor did Jones state that Harris was at Holloman’s store during the murder. If

Deputy Owens collaborated with the prosecution to encourage false testimony, any

reasonable juror could conclude that Deputy Owens is untrustworthy. Accordingly, any

reasonable juror would not likely rely on Deputy Owens’s testimony as evidence beyond

a reasonable doubt that Finch killed Holloman.

       Considering all of the new evidence, we hold that Finch has “demonstrate[d] that

the totality of the evidence would prevent any reasonable juror from finding him guilty

beyond a reasonable doubt, such that his incarceration is a miscarriage of justice.”

Teleguz, 689 F.3d at 329 (internal citations omitted). There is no physical evidence

implicating Finch because medical and ballistic evidence demonstrates that the shotgun

shell found in Finch’s car cannot be definitively matched to any of the crime scene

ballistic evidence. The State’s key witness, Jones, has a host of credibility issues, and

much of the evidence corroborating Jones’s testimony, including Deputy Owens, has

been undermined.

       Jones’s testimony about what the robbers wore the night of the murder and Finch’s

and Lewis’s attire that night may still buttress the State’s case, but a reasonable juror

would likely not convict a defendant in a first-degree murder case merely because of a


                                             18
non-descript outfit similarity without more corroborating evidence. This evidence would

not cause any reasonable juror to lend dispositive weight to this allegation given the

weight of the rest of Finch’s actual innocence evidence.


                                           VI.

       Finch has overcome the exacting standard for actual innocence through

sufficiently alleging and providing new evidence of a constitutional violation and through

demonstrating that the totality of the evidence, both old and new, would likely fail to

convince any reasonable juror of his guilt beyond a reasonable doubt. We therefore

reverse the district court’s decision and remand Finch’s federal habeas petition back

through the gateway of actual innocence so that he can receive a hearing on the merits of

his case.


                                                           REVERSED AND REMANDED




                                           19
