                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-7441


JOHN R. HAYES, III,

                    Plaintiff – Appellant,

             v.

MARK CARVER,

                    Defendant – Appellee.


Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:16-cv-01100-TDS-LPA)


Argued: January 30, 2019                                        Decided: April 22, 2019


Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and DUNCAN, Senior
Circuit Judge.


Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which
Judge Richardson and Judge Duncan joined.


ARGUED: Raquel A. Macgregor, WAKE FOREST UNIVERSITY SCHOOL OF
LAW, Winston-Salem, North Carolina, for Appellant. Peter Andrew Regulski, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
BRIEF: S. Mark Rabil, Associate Clinical Professor of Law, WAKE FOREST
UNIVERSITY SCHOOL OF LAW, Winston-Salem, 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 John R. Hayes, III, convicted of two counts of second-degree murder

and sentenced to two consecutive life terms, appeals the district court’s dismissal of his

petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. We granted a certificate

of appealability on his claim that he has made a showing of actual innocence such that the

district court erred in dismissing his petition as untimely. Because Hayes has failed to

meet the exacting standard for the procedural gateway claim of actual innocence, we

affirm the district court’s dismissal of the petition.



                                               I.

       On October 11, 1993, Hayes was arrested in Winston-Salem, North Carolina for

the murders of Waddell Lynn Bitting and Stephen Joel Samuels. At trial, the State

presented evidence that the shootings of Bitting and Samuels occurred on July 25, 1993,

outside of an illegal “drink house” at 910 East 22nd Street in Winston-Salem. In the

early morning hours, people who were in the drink house heard gunshots and ran outside

to investigate. There were a large number of people outside, and numerous shots were

fired. Samuels died in front of his yellow Nissan Maxima, which was parked by the

driveway of 914 East 22nd Street, and Bitting’s body was found on the porch of 922 East

22nd Street. Id. at 694, 730. A resident of that address called the police, and shots

continued to be fired even after the police arrived.

       The Winston-Salem Police Department investigated the shootings with Detective

R.L. Barren as lead detective. At trial, the State presented the testimony of: Mary Geter,

                                               2
Anita Jeter, Cynthia Coleman, Officer C.Y. Singletary, Detective T.E. Craven, I.D.

Technician Lana Perry, Dr. Patrick Lantz, Anthony Samuels, and Detective Barren.

Geter and Jeter testified that they were inside the drink house with Hayes when they

heard shots coming from outside. The two women waited for a minute or two while

everyone else, including Hayes, ran outside. They testified that they then walked outside

and stood on the front porch of the drink house. According to Geter’s and Jeter’s

testimony, Hayes was standing behind a blue car parked on the street in front of the house

and then fired a gun multiple times down the street into a crowd. Coleman, a third

eyewitness, testified that she saw a black male wearing a light-colored shirt standing next

to the blue car in front of the drink house and that he fired a gun in the air and then

lowered his arm to fire into a crowd on 22nd street. Detective Craven testified that

twelve 9-millimeter shell casings and two .32 caliber shell casings were found at the

scene. Dr. Lantz, a forensic pathologist testified as an expert witness that Bitting and

Samuels were killed by medium caliber bullets.          The murder weapon was never

recovered.

       The defense did not present any evidence. Hayes pleaded not guilty and was

represented at trial by court-appointed attorney Warren Sparrow. On July 19, 1994, after

a two-day trial, a jury in Forsyth County, North Carolina convicted Hayes of two counts

of second-degree murder, and the trial court sentenced him to two consecutive life terms.

       Hayes appealed the conviction to the North Carolina Court of Appeals, which

affirmed his conviction and sentence on September 5, 1995. Hayes did not file any post-

conviction motions between 1995 and 2013.

                                            3
       Between 2011 and 2012, the Forsyth District Attorney’s Office provided over 100

pages of police and lab reports to the Innocence and Justice Clinic of the Wake Forest

University School of Law. The Clinic then filed a motion to compel discovery on behalf

of Hayes on February 12, 2013, which the state Superior Court denied. A few weeks

later, Hayes filed a motion for appropriate relief and another motion for discovery. On

March 27, 2013, the District Attorney disclosed over 1,000 pages of documents,

seventeen audio recordings, photographs, and a crime scene video.          Based on this

discovery, Hayes filed an amended motion for appropriate relief on August 30, 2013.

The proffered new material included witness statements regarding other shooters at the

scene, evidence of a third shooting victim, and shell casings reportedly found on the drink

house porch. It also included statements to the police by Geter, Jeter, and Coleman,

which Hayes argued contradicted their testimony at trial. After conducting a hearing, the

Superior Court denied Hayes’s motion for appropriate relief on November 21, 2014.

Hayes filed a petition for certiorari with the North Carolina Court of Appeals, which was

denied on August 24, 2016.

       Hayes filed a federal petition for writ of habeas corpus on September 2, 2016. The

State moved to dismiss the petition as untimely and thus procedurally barred. Hayes

argued that equitable tolling per the actual innocence gateway for procedurally defaulted

claims should apply. The magistrate judge recommended that the petition be dismissed

as untimely, and the district court agreed, entering an order and judgment granting the

State’s motion on September 30, 2017. The district court also denied a certificate of



                                            4
appealability. Hayes filed a notice of appeal on October 27, 2017. We granted a

certificate of appealability on Hayes’s claim of actual innocence.



                                             II.

       A federal court ordinarily may not consider claims that a petitioner failed to raise

at the time and in the manner required under state law unless “the prisoner demonstrates

cause for the default and prejudice from the asserted error.” House v. Bell, 547 U.S. 518,

536 (2006). However, in Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court

recognized that in certain exceptional cases, a compelling showing of actual innocence

would enable a federal court to consider the merits of a petitioner’s otherwise defaulted

claims. In such a case, the Court held, new evidence “establish[es] sufficient doubt about

[the petitioner’s] guilt to justify the conclusion that his execution would be a miscarriage

of justice unless his conviction was the product of a fair trial.” Id. at 861–62 (emphasis

in original).

       New reliable evidence of actual innocence creates a gateway for a habeas

petitioner to present procedurally defaulted federal constitutional claims by allowing an

equitable exception to the limitations provisions of 28 U.S.C. § 2244(d)(1) to prevent a

fundamental miscarriage of justice. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). A

petitioner meets the threshold requirement if he “persuades the district court that, in light

of the new evidence, no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.”       Schlup, 513 U.S. at 329.       “Courts have consistently

emphasized that actual innocence for the purposes of Schlup is a procedural mechanism

                                             5
rather than a substantive claim.” Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012)

(internal citation omitted). “In other words, although a petitioner claims actual innocence

for the purposes of asserting a Schlup claim, this innocence claim does not by itself

provide a basis for relief. Instead, his claim for relief relies critically on the validity of

his procedurally defaulted claims.” Id. (internal citation and quotation marks omitted).

       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 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).

       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, 547 U.S. at 539. (internal citation and quotation marks omitted). Based on the

                                              6
total evidentiary record, the 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.” Id. at 538 (internal citations and

quotation marks omitted). If the court finds that “more likely than not any reasonable

juror would have reasonable doubt as to the petitioner’s guilt, then the petitioner has

satisfied the Schlup standard, and the district court must review the petitioner’s

procedurally defaulted claims.” Teleguz, 689 F.3d at 328. This Court reviews de novo a

district court’s denial of relief in habeas corpus proceedings. Id. at 327.



                                             III.

       To enable a federal court to consider the merits of Hayes’s otherwise defaulted

claims, Hayes must support allegations of constitutional error with new, reliable evidence

that was not proffered at trial. Finch v. McKoy, 914 F.3d 292, 298–299 (4th Cir. 2019)

(internal citation omitted). He must also prove that in light of all the evidence, old and

new, it is more likely than not that no reasonable juror would have voted to find him

guilty beyond a reasonable doubt. Id. (internal citation omitted).

       As to constitutional error, Hayes argues that the new disclosures by the State give

rise to claims for violations of his constitutional rights under the Sixth and Fourteenth

Amendments due to the State’s presentation of or failure to correct misleading or

incomplete evidence, the State’s failure to disclose exculpatory and impeaching evidence,

and ineffective assistance of counsel. The State is correct that the district court did not

                                              7
address the merits of Hayes’s constitutional claims, nor do we address the merits here.

Rather, in reviewing Hayes’s claim of actual innocence, our task is limited to simply

determining whether Hayes has supported allegations of constitutional error–not whether

he would ultimately prevail on those claims. See Finch, 914 F.3d at 299. Here, even

assuming Hayes sufficiently supported allegations of constitutional error, he fails to

prevail on his claim of actual innocence, because the totality of the evidence fails to meet

the second prong of the exacting standard set forth in Schlup.

       In reviewing all of the evidence in support of his actual innocence gateway claim,

Hayes points to the following new evidence that was not disclosed to the jury at trial: (1)

two shell casings reportedly found on the porch of the drink house; (2) impeachment

evidence; (3) police interviews with Coleman; (4) police reports of a third shooting

victim; and (5) witness statements to police. 1 Hayes argues that this new evidence

weakens the State’s narrative at trial such that it is probable that no reasonable juror

could find him guilty of the murders beyond a reasonable doubt. Contrary to Hayes’s

arguments, however, none of this evidence contradicts, or even undermines, the essential

testimony of the identifying witnesses or the State’s other evidence such that it is more

likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.




       1
        While the parties dispute the reliability of the new evidence proffered by Hayes,
we need not resolve that issue, because even assuming the reliability of Hayes’s
evidence, he has failed to demonstrate that “no reasonable juror would have convicted
him in light of the new evidence.” McQuiggin, 569 U.S. at 399 (internal citation and
quotation marks omitted).

                                             8
       Unlike in Finch v. McKoy, where we found the actual innocence standard met,

none of the three identifying witnesses in this case have ever expressed reluctance or

uncertainty about their testimony at trial.     914 F.3d at 300.      Nor does the minor

impeachment evidence identified by Hayes cast doubt on the veracity of that testimony.

Geter’s and Jeter’s statements to police indicate that Hayes had fired a large caliber

firearm. At trial, Geter and Jeter testified that they were uncertain about the type of gun

Hayes was shooting. Jeter told a detective that she worked in the drink house but

testified at trial that she had never done so. Especially given that Geter and Jeter knew

Hayes personally, these newly revealed statements to police do not, considered along

with the totality of the evidence, cast doubt on the substance of these witnesses’

identifying testimony, much less establish actual innocence.          Nor do Coleman’s

statements to police regarding Hayes’s appearance weaken her testimony such that it is

more likely than not that no reasonable juror would have voted to convict Hayes–

especially when considered in the context of all the evidence, both old and new, including

the unchanged eyewitness, identifying testimony of Geter and Jeter.

      The police reports of a third shooting victim and witness statements identifying

additional shooters likewise do not establish Hayes’s entitlement to the procedural

gateway of actual innocence.      While Hayes argues that this evidence would have

fundamentally undermined the State’s narrative at trial, we disagree.         Indeed, the

evidence at trial already indicated that there were multiple shooters and much gunfire at

the scene (in addition to those shots fired by Hayes). None of the witness statements

identified by Hayes contradict the testimony of the witnesses at trial, and even assuming

                                            9
the third victim was shot by an additional shooter, this evidence does not demonstrate

Hayes’s innocence as to the murders of Bitting and Samuels. 2 The police reports and

witness statements simply confirm what the jury already knew–that there were multiple

shooters and shots fired at the chaotic scene of the crime.

       Finally, the additional shell casings reportedly found on the porch do not establish

actual innocence. Even assuming that the casings were indeed found on the porch, this

does not necessarily contradict the evidence at trial, much less establish reasonable doubt

as to Hayes’s guilt. Given Coleman’s testimony that the shooter initially fired into the air

before slowly lowering his arm, it would have been entirely possible for some of the

casings to fall on the porch.

       Because none of the new evidence identified by Hayes contradicts the evidence of

his guilt presented at trial, Hayes has failed to demonstrate that in light of new evidence,

“no juror, acting reasonably, would have voted to find him guilty beyond a reasonable

doubt.” McQuiggin, 569 U.S. at 386 (internal citations and quotation marks omitted).



                                            IV.

       In conclusion, “it bears repeating that the Schlup standard is demanding and

permits review only in the extraordinary case.” Bell, 547 U.S. at 538 (internal citations


       2
          As Hayes acknowledged at oral argument, the statement of Avlon Fryer
implicating someone else in the shooting of Bitting and Samuels was later recanted. See
J.A. 1533, 1536 (Fryer admitting that she lied about seeing two individuals named Demo
and Sunshine shoot Bitting and Samuels and that she was in fact at home asleep at the
time of the shootings).

                                             10
and quotation marks omitted). Hayes has failed to meet that demanding standard here.

Accordingly, we affirm the district court’s dismissal of Hayes’s petition on procedural

grounds.



                                                                           AFFIRMED




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