                                         PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               ______________

                    No. 17-1043
                  ______________

                 JERRY REEVES,

                                Appellant

                          v.

 FAYETTE SCI; THE ATTORNEY GENERAL OF THE
   STATE OF PENNSYLVANIA; THE DISTRICT
      ATTORNEY OF DAUPHIN COUNTY
                  ______________

       APPEAL FROM THE UNITED STATES
             DISTRICT COURT FOR THE
      MIDDLE DISTRICT OF PENNSYLVANIA
                (D.C. No. 3-14-cv-01500)
       District Judge: Hon. Malachy E. Mannion
                    ______________

                Argued May 16, 2018
                  ______________

Before: MCKEE, SHWARTZ, and COWEN, Circuit Judge.

                (Filed: July 23, 2018)
Matthew Stiegler, Esq. [ARGUED]
Law Office of Matthew Stiegler
7145 Germantown Avenue, Suite 2
Philadelphia, PA 19119

David R. Fine, Esq.
K&L Gates LLP
17 North Second Street, 18th Floor
Harrisburg, PA 17101

             Counsel for Appellant


Francis T. Chardo, Esq.
Ryan H. Lysaght, Esq. [ARGUED]
Dauphin County Office of the District Attorney
101 Market Street, 2nd Floor
Harrisburg, PA 17101

             Counsel for Appellee


Stephen Fogdall, Esq.
Schnader Harrison Segal & Lewis LLP
1600 Market Street
Suite 3600
Philadelphia, PA 19103

             Counsel for Amicus Curiae Former
             Prosecutors, Members of the Judiciary, and
             Law Enforcement Officers




                             2
Ronald F. Wick, Esq.
Erica C. Lai, Esq.
Danielle Morello, Esq.
Melissa H. Maxman, Esq.
Cohen & Gresser LLP
2001 Pennsylvania Avenue NW, Suite 300
Washington, DC 20001

             Counsel for Amicus Curiae the Innocence
             Network and the Pennsylvania Innocence
             Project


David Rudovsky, Esq.
Jonathan H. Feinberg, Esq.
Jules Epstein, Esq.
Kairys, Rudovsky, Messing, Feinberg & Lin LLP
The Cast Iron Building
718 Arch Street, Suite 501 South
Philadelphia, PA 19106

             Counsel for Amicus Curiae Scholars of Habeas
             Corpus Law

                     ______________

                OPINION OF THE COURT
                    ______________

SHWARTZ, Circuit Judge.

       Jerry Reeves was convicted of robbery, carrying a
firearm without a license, and second degree murder relating




                             3
to an armed robbery of a gas station convenience store that
resulted in the death of the store clerk. Reeves was sentenced
to life imprisonment without the possibility of parole. He filed
a four-months-late habeas petition in federal court asserting
ineffective assistance of counsel and seeking to excuse his
petition’s untimeliness based on the actual innocence
exception to procedural default recognized in Schlup v. Delo,
513 U.S. 298 (1995), and extended to include time-barred
petitions in McQuiggin v. Perkins, 569 U.S. 383 (2013). To
qualify for this exception, the petitioner must present new,
reliable evidence showing it is more likely than not that no
reasonable juror would have voted to convict him. Schlup, 513
U.S. at 324, 329. Because we conclude that Reeves has
identified evidence that may show actual innocence that was
not presented to the jury, we will vacate and remand for further
proceedings.

                               I

       On May 25, 2006, a man robbed a City Gas and Diesel
convenience store in Harrisburg, Pennsylvania and shot and
killed the store’s clerk. The robbery and shooting were
captured on the store’s silent, black-and-white surveillance
video. The video shows that a single robber entered the store
and pointed a gun at the clerk. The clerk tried to close a
bulletproof glass window, but the robber’s arm blocked the
window from closing. The robber fired a shot, causing the
clerk to fall back. The clerk got up, made a surrendering
gesture, and began emptying the cash register. The clerk then
fell to the floor, and the robber jumped over the counter
through the open bulletproof glass window and collected the
remaining money. He then left the store on foot. A local
newspaper published a story about the crime the next day.




                               4
        A few days after the shooting, Reeves, then eighteen
years old, was in jail for conduct unrelated to the robbery. A
police officer asked him about the convenience store robbery
and Reeves claimed that he had witnessed the crime and
identified a robber by name. Reeves was subsequently
released and attended his family’s Memorial Day cookout a
few days later. On May 30, 2006, the police interviewed
Reeves, who ultimately admitted that he had lied about
witnessing the robbery to gain release and attend his family’s
cookout. He was charged with and pleaded guilty to hindering
apprehension.

       Around this time, the police had received information
about other potential suspects. The same day the robbery
occurred, the police were notified that two individuals who had
previously been convicted of other crimes—Kai Anderson and
Michael Holmes—failed to show up at a work-release center
located near the City Gas and Diesel and that Anderson fit the
physical description of the robber. On May 29, 2006, the
police spoke to Danielle Ignazzito—the mother of Anderson’s
child—who stated that Anderson called her two days after the
robbery, telling her he had “a lot of money” to give her for
outstanding child support. App. 155. She further stated that
she received a call from Kenneth Marlow, who told her that
Anderson and Holmes had fled the state because police were
looking for Anderson for the robbery. On May 31, 2006,
Anderson was arrested and admitted escaping the work release
center with Holmes, talking to Marlow, and asking Marlow to
call Ignazzito. Anderson claimed that a different person
committed the robbery.
       On June 9, 2006, the police interviewed Marlow.
Marlow stated that Anderson told him that he was involved in




                              5
the robbery and asked Marlow to call Ignazzito for him. A few
weeks later, Johnathan Johnston—who had been incarcerated
with Anderson—told the police that Anderson confessed to
him that he participated in the robbery with Holmes and
Holmes’s younger brother to obtain money to repay a victim
of another robbery Anderson committed. According to
Johnston, Anderson provided specific details about the
robbery, including that the robber was not supposed to shoot
the clerk but that the gun went off, and the clerk fell, got up,
then fell again, at which point the robber jumped over the
counter to retrieve the money. Johnston also stated that
Anderson wanted Johnston’s wife to threaten Ignazzito so that
she would not talk to the police. Johnston further told the
police that Anderson said he had also confessed to Marlow and
that Marlow was not supposed to tell Ignazzito about the
robbery. On March 9, 2007, the police interviewed Michael
Holmes, who admitted to leaving the work release center with
Anderson on the day of the robbery but spent the day visiting
various people’s homes. The record does not indicate why the
Anderson leads were not pursued further, but before trial,
Reeves’s trial counsel was provided with copies of the police
reports about Anderson and Holmes.

       On July 29, 2009, more than three years after the
shooting, Reeves and his then-girlfriend, who was pregnant,
were arrested and taken to jail for conduct unrelated to the City
Gas and Diesel robbery. Reeves again spoke to police officers
and, ten to twelve hours later, confessed to committing the City
Gas and Diesel robbery.

       At Reeves’s trial in 2010, the prosecutor presented the
testimony of the officers who had interviewed Reeves, an
audio recording of Reeves’s confession, and the store




                               6
surveillance tape of the robbery and shooting, among other
evidence. Reeves testified and denied involvement in the
robbery, stating that he was experiencing health problems on
the day of his July 29, 2009 confession and that detectives told
him they would take him to the hospital only if he confessed.
He also asserted that detectives promised to release his
girlfriend if he confessed and that the police fed him details
about the robbery for his taped confession. Reeves further
stated that he was in Baltimore at the time of the crime, which
caused the prosecution to call a rebuttal witness who testified
that while he was in jail with Reeves, Reeves discussed paying
a person to say that Reeves was in Baltimore, not Harrisburg,
when the robbery occurred. The Kai Anderson evidence was
not presented at trial.

       The jury convicted Reeves of robbery, carrying a
firearm without a license, and second degree murder. He was
sentenced to life imprisonment. The Pennsylvania Superior
Court affirmed the conviction and sentence on July 1, 2011,
and Reeves did not appeal to the Pennsylvania Supreme Court.

       On July 30, 2012, Reeves filed a Post-Conviction Relief
Act (“PCRA”) petition asserting ineffective assistance of
counsel based on his trial counsel’s failure to present the Kai
Anderson evidence, among other alleged deficiencies. On
October 10, 2012, the PCRA Court issued a memorandum
order notifying Reeves of its intent to dismiss the PCRA
petition. Reeves filed objections on October 29, 2012, and the
PCRA Court dismissed the petition on November 26, 2012
without a hearing, concluding that trial counsel’s failure to
present evidence of an alternate suspect did not prejudice
Reeves because Reeves confessed to committing the robbery




                               7
and the store surveillance video corroborated his confession.1
On November 7, 2013, the Pennsylvania Superior Court
summarily affirmed and adopted the PCRA Court’s October
10, 2012 and November 26, 2012 opinions without additional
reasoning. The Pennsylvania Supreme Court denied Reeves’s
petition for review.

       On July 31, 2014, Reeves filed a federal habeas petition
with new counsel, asserting ineffective assistance of counsel
on the grounds that Reeves’s trial counsel failed to investigate
and present certain exculpatory evidence at trial, including
evidence suggesting that Anderson and Holmes committed the
robbery.2 Reeves conceded that his federal habeas petition was
filed approximately four months late, but asserted that this

       1
          In its discussion concerning the Kai Anderson
evidence, the PCRA Court stated: “Accepting Petitioner’s
argument that all of the hearsay and non-hearsay testimony that
would have been presented at trial would have been
admissible, Petitioner fails to explain how this testimony
would have rebutted Petitioner’s own admission to the
robbery/homicide.” App. 492.
       2
         Besides the evidence concerning other alternative
suspects, Reeves pointed to trial counsel’s failures to
adequately develop and/or present (1) evidence of Reeves’s
left-handedness and the shooter’s right-handedness, (2)
inconsistencies between Reeves’s confession and the
surveillance video, (3) a news article of the robbery which
would show that Reeves’s confession contained public
information about the crime, (4) medical records showing
Reeves was hospitalized on the day of his confession for a
suicide attempt and had a history of mental health problems,
and (5) evidence of Reeves’s history of uncontrolled lying.




                               8
procedural defect was excusable because he had shown actual
innocence. The petition was referred to the Magistrate Judge
for a report and recommendation. The Magistrate Judge
opined that the actual innocence exception requires the
petitioner to present new evidence and that the evidence
Reeves claims should have been presented was available to
him and his trial counsel and thus did not qualify as new
evidence. As a result, the Magistrate Judge denied an
evidentiary hearing and recommended that the District Court
dismiss Reeves’s petition as untimely. The District Court
adopted the Magistrate Judge’s report and recommendation,
agreed that the evidence concerning alternative suspects was
not new evidence because it was available at trial, concluded
that Reeves failed to demonstrate actual innocence sufficient
to overcome the statute of limitations, and dismissed Reeves’s
petition as time-barred. The District Court also denied an
evidentiary hearing and a certificate of appealability. Reeves
sought a certificate of appealability, which we granted as to,
among other things, “(1) whether the evidence Appellant relied
on in the District Court constitutes ‘new’ evidence” and “(2)
whether Appellant’s evidence satisfied the [actual innocence]
standard.” App. 72-73.




                             II3

      3
         The District Court had jurisdiction under 28 U.S.C. §
2254. Our Court has jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. Our review is plenary where, as here, the
District Court did not conduct an evidentiary hearing. Houck




                              9
        Reeves asserts that his trial counsel was ineffective for
failing to present at trial evidence of alternative suspects for the
shooting, his left-handedness, mental condition at the time of
his confession, and history of compulsive lying. He concedes
that his petition is late but argues that this exculpatory evidence
demonstrates actual innocence and warrants excusing his
untimeliness.

                                 A

        Under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), state prisoners have one year to file
a federal habeas petition, which begins to run from “the date
on which the judgment became final.”                  28 U.S.C.
§ 2244(d)(1)(A).     However, to prevent a “fundamental
miscarriage of justice,” an untimely petition is not barred when
a petitioner makes a “credible showing of actual innocence,”
which provides a gateway to federal review of the petitioner’s
otherwise procedurally barred claim of a constitutional
violation.4 McQuiggin, 569 U.S. at 386, 392. This


v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010). In addition, we
exercise plenary review over the District Court’s determination
of a petitioner’s claim of actual innocence. Sweger v. Chesney,
294 F.3d 506, 522 (3d Cir. 2002).
        4
          In contrast to gateway (or procedural) actual innocence
claims, freestanding (or substantive) claims of actual
innocence assert innocence without any accompanying
constitutional defect in the trial resulting in the conviction. See
Schlup, 513 U.S. at 313-16 (distinguishing between the two
types of claims). The Supreme Court has not definitively
resolved whether such freestanding actual innocence claims




                                10
“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,” and it “survived
AEDPA’s passage.”5 Id. at 392-93. In this context, actual
innocence refers to factual innocence, not legal insufficiency.



are cognizable, McQuiggin, 569 U.S. at 392, but to the extent
they are, they are assessed under a more demanding standard,
since the petitioner’s claim is that his conviction is
constitutionally impermissible “even if his conviction was the
product of a fair trial,” Schlup, 513 U.S. at 316. See House v.
Bell, 547 U.S. 518, 555 (2006) (concluding that the petition
satisfied the gateway innocence standard announced in Schlup
but not the higher standard for freestanding innocence
discussed in Herrera v. Collins, 506 U.S. 390, 417 (1993)).
Gateway innocence claims, on the other hand, assert a claim of
actual 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 free of nonharmless constitutional error.” Schlup,
513 U.S. at 316.
        5
            Although AEDPA explicitly provides actual
innocence exceptions to some of its procedural provisions, and
these exceptions incorporate a newly discovered evidence
standard, see 28 U.S.C. §§ 2244(b)(2)(B) and 2254(e)(2), the
Supreme Court has explained that the actual innocence
miscarriage of justice exception is separate from AEDPA’s
statutory provisions, and the exception survived AEDPA’s
passage. McQuiggin, 569 U.S. at 393-98. Thus, AEDPA’s
actual innocence provisions are not dispositive of the scope of
new evidence under the actual innocence miscarriage of justice
exception recognized by the Supreme Court in Schlup, House,
and McQuiggin.




                                11
Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir. 2012) (citation
omitted).

        To satisfy this standard, first, “a petitioner must present
new, reliable evidence” and second, “show by a preponderance
of the evidence ‘that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence,’” Houck v. Stickman, 625 F.3d 88, 93 (3d Cir.
2010) (citing and quoting Schlup, 513 U.S. at 324, 327), or
stated differently, that it is “more likely than not any reasonable
juror would have reasonable doubt,” House v. Bell, 547 U.S.
518, 538 (2006). As part of the reliability assessment of the
first step, the court “may consider how the timing of [the
petitioner’s] submission and the likely credibility of the
[witnesses] bear on the probable reliability of that evidence,”
as well as the circumstances surrounding the evidence and any
supporting corroboration. Id. at 537, 551 (internal quotation
marks and citation omitted); see also McQuiggin, 569 U.S. at
399.

        In evaluating the second step—whether it is more likely
than not no reasonable juror would convict the petitioner—the
court “must consider all the 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, 547 U.S. at 538 (internal
quotation marks and citation omitted). “[M]ere impeachment
evidence is generally not sufficient to satisfy the [actual
innocence gateway] standard.” Munchinski v. Wilson, 694
F.3d 308, 338 (3d Cir. 2012). However, new, reliable evidence
that “undermine[s] the [trial] evidence pointing to the identity
of the [perpetrator] and the motive for the [crime]” can suffice
to show actual innocence. Goldblum v. Klem, 510 F.3d 204,




                                12
233 (3d Cir. 2007); see also Munchinski, 694 F.3d at 336-37
(explaining that actual innocence was demonstrated where new
evidence both showed that the crime could not have happened
in the way the Commonwealth presented at trial and provided
an alternative theory that was more appropriate and better fit
the facts of the case). In weighing the evidence, “[t]he 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”; the actual
innocence standard “does not require absolute certainty about
the petitioner’s guilt or innocence.” House, 547 U.S. at 538.

        The gateway actual innocence standard is “demanding”
and satisfied only in the “rare” and “extraordinary” case where
“a petition presents 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 free of nonharmless
constitutional error.” McQuiggin, 569 U.S. at 386, 392, 401
(internal quotation marks and citations omitted).

                               B

         The threshold requirement for applying the actual
innocence standard is new evidence supporting the petitioner’s
innocence. The Supreme Court opinions addressing the actual
innocence gateway do not explicitly define “new evidence,”
and our sister circuit courts are split on whether the evidence
must be newly discovered or whether it is sufficient that the
evidence was not presented to the fact-finder at trial. The Court
of Appeals for the Eighth Circuit—the first to address the
issue—held that “evidence is new only if it was not available
at trial and could not have been discovered earlier through the
exercise of due diligence.” Amrine v. Bowersox, 238 F.3d




                               13
1023, 1028 (8th Cir. 2001) (internal citation and quotation
marks omitted). Thereafter, the Courts of Appeals for the
Seventh and Ninth Circuits concluded otherwise: petitioners
can satisfy the actual innocence standard’s new evidence
requirement by offering “newly presented” exculpatory
evidence, meaning evidence not presented to the jury at trial.
See Gomez v. Jaimet, 350 F.3d 673, 679-80 (7th Cir. 2003);
Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003). More
recently, the Courts of Appeals for the First, Second, and Sixth
Circuits have similarly suggested that actual innocence can be
shown by relying on newly presented—not just newly
discovered—evidence of innocence. See Riva v. Ficco, 803
F.3d 77, 84 (1st Cir. 2015); Cleveland v. Bradshaw, 693 F.3d
626, 633 (6th Cir. 2012); Rivas v. Fisher, 687 F.3d 514, 543,
546-47 (2d Cir. 2012). The Court of Appeals for the Fifth
Circuit has acknowledged but not weighed in on the circuit
split.6 Fratta v. Davis, 889 F.3d 225, 232 (5th Cir. 2018); see
also Rozzelle v. Sec’y, Fla Dep’t of Corr., 672 F.3d 1000, 1018


       6
        Recent Fifth Circuit decisions, however, have included
language arguably suggesting an inclination toward a newly
discovered standard. See Fratta, 889 F.3d at 232 n.21 (citing
Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008), with
a parenthetical stating that “evidence was not ‘new’ where ‘it
was always within the reach of [petitioner’s] personal
knowledge or reasonable investigation”); Floyd v. Vannoy, __
F.3d __, No. 17-30421, 2018 WL 3115935, at *7-9 (5th Cir.
June 25, 2018) (using the phrase “newly-discovered evidence”
in discussing fingerprint comparison evidence that existed at
the time of trial but was neither known to the petitioner nor
presented at trial, and holding that the evidence met the Schlup
standard).




                              14
n.21 (11th Cir. 2012) (refraining from reaching issue of whether
petitioner’s evidence that was available at trial but was not
presented should be considered “new” for purposes of Schlup).

         Those courts that define “new evidence” to include
evidence not presented at trial find support in Schlup. In
announcing the standard for a gateway actual innocence claim,
the Schlup Court stated that a federal habeas court, after being
presented with new, reliable exculpatory evidence, must then
weigh “all of the evidence, including . . . evidence tenably
claimed to have been wrongly excluded or to have become
available only after the trial” to determine whether no
reasonable juror would have found the petitioner guilty. 513
U.S. at 327-28. The reference to “wrongly excluded” evidence
suggests that the assessment of an actual innocence claim is not
intended to be strictly limited to newly discovered evidence—
at least not in the context of reaching an ineffective assistance
of counsel claim based on counsel’s failure to investigate or
present at trial such exculpatory evidence, as was the case in
Schlup. In addition, in articulating the new, reliable evidence
requirement, the Supreme Court stated that the petitioner must
“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.”7 Id. at 324.
Moreover, the Court used the phrase “newly presented
evidence” in the context of discussing witness credibility
assessments that may occur as part of the actual innocence
gateway analysis. Id. at 330. When considered in the context

       7
         Post-Schlup, the Supreme Court clarified that credible,
actual innocence evidence was not limited to these three types
of evidence. House, 547 U.S. at 537.




                               15
of the Court’s other statement about weighing all evidence—
including not only evidence unavailable at trial but also
evidence excluded at trial—these references to evidence not
presented at trial further suggest that new evidence, solely
where counsel was ineffective for failing to discover or use
such evidence, requires only that the evidence not be presented
to the factfinder at trial. Indeed, among the new evidence
presented by the petitioner in Schlup was an affidavit
containing witness statements that were available at trial, see
id. at 310 n.21, but the Supreme Court did not discuss the
significance of the evidence’s availability nor reject the
evidence outright, which presumably it would have done if the
actual innocence gateway was strictly limited to newly
discovered evidence. Schlup therefore strongly suggests that
new evidence in the actual innocence context refers to newly
presented exculpatory evidence.8 Indeed, in a subsequent

       8
          The Schlup opinion discussed above was written by
Justice Stevens and joined by Justices O’Connor, Souter,
Ginsburg, and Breyer, while the four remaining justices
dissented. Justice O’Connor, in addition to joining Justice
Stevens’s decision, also separately concurred, stating that she
understood the majority to hold that a petitioner “‘must show
that it is more likely than not that no reasonable juror would
have convicted him’ in light of newly discovered evidence of
innocence.” 513 U.S. at 332 (citation omitted). She then
proceeded to state that the majority did not “decide whether the
fundamental miscarriage of justice exception is a discretionary
remedy.” Id. at 333. Had Justice O’Connor merely joined part
of the majority opinion, her use of “newly discovered
evidence” would have constituted Schlup’s holding. See
Marks v. United States, 430 U.S. 188, 193 (1977) (explaining
that “[w]hen a fragmented Court decides a case and no single




                              16
decision, the Supreme Court cited Schlup for this very
proposition, stating that “‘[t]o be credible,’ a claim of actual
innocence must be based on reliable evidence not presented at
trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(quoting Schlup, 513 U.S. at 324).9


rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the
narrowest grounds.”). However, Justice O’Connor joined the
majority opinion, and her separate discussion of the actual
innocence gateway test reflects agreement with that standard,
not any desire to narrow the majority’s construction of it. Nor
did Justice O’Connor discuss any problems with the majority’s
reasoning in support of the test or note any distinction between
newly presented and newly discovered evidence. Under these
circumstances, the fairest reading of Schlup is that the test
articulated by the majority opinion and its reference to
evidence not presented (at least in the context of an ineffective
assistance of counsel claim) was indeed supported by a
majority of the justices, and therefore binding. Moreover,
subsequently in Calderon, Justice O’Connor joined the
majority opinion without writing separately, and the majority
cited Schlup for the assertion that “a claim of actual innocence
must be based on reliable evidence not presented at trial” in
order to be credible. Calderon v. Thompson, 523 U.S. 538, 559
(1998).
        9
          The Calderon dissenters also stated that “as the Court
realizes, our standard dealing with innocence of an underlying
offense requires no clear and convincing proof . . . and the
Court would be satisfied with a demonstration of innocence by
evidence not presented at trial, even if it had been discovered,
let alone discoverable but unknown, that far back.” 523 U.S.




                                17
        Our Court has not yet resolved the meaning of new
evidence in the actual innocence context. In dicta, we have
suggested that new evidence generally must be newly
discovered, while at the same time recognizing an exception
may exist when a petitioner asserts ineffective assistance of
counsel based on counsel’s failure to discover the very
exculpatory evidence on which the petitioner relies to
demonstrate his actual innocence. See Houck, 625 F.3d at 94-
95 (stating that the Court was “inclined to accept the [Eight
Circuit’s] Amrine definition of new evidence with the narrow
limitation that if the evidence was not discovered for use at trial
because trial counsel was ineffective, the evidence may be
regarded as new provided that it is the very evidence that the
petitioner claims demonstrates his innocence” but deciding to
“stop short of applying a modified Amrine standard” and
instead “assum[ing] without deciding” that the petitioner’s
evidence constituted new evidence). This limited exception
avoids an inequity that could lead to the “injustice of
incarcerating an innocent individual.” McQuiggin, 569 U.S. at
393. Such an inequity could occur under the following
circumstances: say that a petitioner was convicted of a murder,
and the prosecutor had withheld a videotape depicting a
different person committing the crime. Further assume the
tape was not revealed until years after the trial. That petitioner
could invoke the actual innocence gateway to pursue this
Brady due process claim because the evidence was newly
discovered. Now, assume the same videotape was produced to
trial counsel and was available for use at trial, but counsel did
not present it to the jury. Under Amrine, that petitioner would
be forced to concede that the evidence was not new because it


at 573 (Souter, J., dissenting) (internal quotation marks and
citations omitted).




                                18
was available at trial, and he would be foreclosed from seeking
relief under the actual innocence gateway. In contrast, in the
former scenario, the same evidence, which existed but was
unknown to the petitioner, would be deemed new evidence that
could support the actual innocence gateway.

       As the Gomez court stated, “in a case where the
underlying constitutional violation claimed is ineffective
assistance of counsel premised on a failure to present [such]
evidence, a requirement that the new evidence be unknown to
the defense at the time of trial would operate as a roadblock to
the actual innocence gateway.” 350 F.3d at 679-80. To
overcome this roadblock, we now hold that when a petitioner
asserts ineffective assistance of counsel based on counsel’s
failure to discover or present to the fact-finder the very
exculpatory evidence that demonstrates his actual innocence,
such evidence constitutes new evidence for purposes of the
Schlup actual innocence gateway.

       The approach we adopt is consistent with Schlup and
the rulings of many of our sister circuits. Moreover, it
recognizes that “the injustice that results from the conviction
of an innocent person has long been at the core of our criminal
justice system.” Schlup, 513 U.S. at 325. Indeed, “the
conviction of an innocent person [is] perhaps the most grievous
mistake our judicial system can commit,” and thus, the
contours of the actual innocence gateway must be determined
with consideration for correcting “such an affront to liberty.”
Satterfield v. Dist. Att’y Phila., 872 F.3d 152, 154 (3d Cir.
2017). The limited approach we adopt to evaluate new
evidence to support an actual innocence gateway claim, where
that claim is made in pursuit of an underlying claim of
ineffective assistance of counsel: (1) ensures that reliable,




                              19
compelling evidence of innocence will not be rejected on the
basis that it should have been discovered or presented by
counsel when the very constitutional violation asserted is that
counsel failed to take appropriate actions with respect to that
specific evidence; and (2) is consistent with the Supreme
Court’s command that a petitioner will pass through the actual
innocence gateway only in rare and extraordinary cases.
Schlup, 513 U.S. at 324.10

                              C

       Here,    the   Magistrate   Judge’s    report   and
recommendation and the District Court’s decision adopting
that report both understandably concluded that exculpatory
evidence available to, but not presented by, Reeves’s trial
counsel—such as the evidence concerning alternative
suspects—was not new evidence for purposes of the actual
innocence gateway.11 They therefore did not proceed to

       10
          The Eighth Circuit’s approach in Amrine and the
Fifth Circuit’s seemingly contrary approach in Floyd and
Fratta are unpersuasive, as those courts provided no reasoning
to support their narrower constructions of “new evidence.”
       11
          The Magistrate Judge relied on three Third Circuit
opinions, Hubbard, Goldblum, and Sistrunk, as support for this
conclusion that exculpatory evidence available to trial counsel
but which counsel failed to present at trial did not constitute
new evidence. However, “[t]he ‘new’ evidence Hubbard puts
forth in alleging actual innocence is nothing more than a
repackaging of the record as presented at trial.” Hubbard v.
Pinchak, 378 F.3d 333, 341 (3d Cir. 2004). As the Magistrate
Judge acknowledged, we assumed for purposes of the appeal
in Goldblum that the pathologist’s report was new, reliable




                              20
determine the reliability of the evidence or consider whether
such evidence, assessed with all the rest of the evidence
adduced at trial, would more likely than not convince any
reasonable juror not to convict Reeves. In light of their view
that Reeves failed to satisfy the actual innocence gateway
standard, they also did not reach the merits of Reeves’s
ineffective assistance of counsel claim. Because we hold that
under the circumstances presented here, the Kai Anderson
evidence is “new,” given that it was known but not presented
allegedly due to his counsel’s ineffective assistance, we will
vacate the District Court’s order and remand. If on remand the
District Court concludes that this new evidence is reliable, then
it should proceed to undertake a holistic assessment of the new,
reliable evidence and the evidence presented at trial to
determine whether Reeves has shown it is more likely than not
that no reasonable juror would have convicted him. If Reeves
makes this showing, then the District Court should review his
ineffective assistance of counsel claim on the merits under the
applicable AEDPA standard of review.



                               III
       For the reasons above, we will vacate the District
Court’s order and remand for further proceedings consistent
with this opinion.


evidence, Goldblum, 510 F.3d at 226. Finally, Sistrunk did not
characterize the petitioner’s federal habeas claims as based on
the alleged ineffective assistance of counsel who failed to
discover or present to the fact-finder the exculpatory evidence
demonstrating his actual innocence. See Sistrunk, 674 F.3d at
185-87.




                               21
Reeves v. Superintendent SCI Fayette, No. 17-1043
McKEE, Circuit Judge, Concurring.

       I agree with my colleagues’ conclusion that evidence
defense counsel was aware of, but failed to present, can
satisfy the new evidence requirement of Schlup v. Delo.1
However, I write separately to emphasize the weight of the
evidence that supports Reeves’s claim of actual innocence,
and the questionable nature of the investigation that resulted
in the conviction of someone who may well have languished
in a prison cell for eight years for a murder that was most
probably committed by someone else.

       The circumstances leading to Reeves’s conviction are
summarized in my colleagues’ thoughtful opinion along with
much of the evidence that supports his claim of actual
innocence. Indeed, the case in support of Reeves’s claim of
actual innocence is so substantial that a group consisting of
retired federal judges, former federal prosecutors, and a
former member of the Office of the Pennsylvania Attorney
General’s Office, has filed an amicus brief on his behalf.2
Yet, as I shall discuss, for some inexplicable reason, police
simply refused to follow even the most obvious leads that did
not confirm their suspicion that Reeves was the killer. They
did eventually obtain a confession from Reeves. However,
given the totality of the circumstances here, that confession
does not negate his claim of actual innocence.

                              I.

      Shortly after the May 25th, 2006 robbery of the City
Gas & Diesel described in the majority opinion, Jerry Reeves,
who was then just eighteen years old, was arrested at a city
park in Harrisburg, Pennsylvania. He was not arrested
because police suspected him of being involved in the fatal
robbery of City Gas & Diesel. Rather, he was arrested for
throwing a rock onto a miniature golf course and hitting
someone in the leg. While in his jail cell, Reeves was
approached by Officer Derek Fenton. Fenton did not

      1
        513 U.S. 298, 324 (1995).
      2
       See Brief for Former Prosecutors, et al. as
Amici Curiae Supporting Reeves 1.
                              1
approach Reeves based on any suspicion that Reeves was
involved in the fatal shooting. Rather, Fenton fancied himself
a bit of a sleuth and prided himself on his ability to ferret out
information. He testified that he went to Reeves in his jail
cell because he, Fenton, believed himself to have “an
excellent rapport with our detective division for the
intelligence [he was] able to gather.”3 In Fenton’s words, he
approached Reeves because: “You don’t know until you try
and anyone you encounter on the street, you just strike them a
conversation.”4 Reeves, who had been adopted out of foster
care, and had a history of lying, was eager to get out of jail
and go home for a family cookout the next day. Thus,
Fenton’s instincts appeared to pay off.

        Reeves told Officer Fenton that he had witnessed the
robbery from across the street. He even identified the robber.
Reeves told Fenton that the robber was a man named
Jermaine Taylor, who was six feet tall with brown skin.
Reeves would later testify at his trial that that was a lie. The
police had apparently told Reeves that if he “had info they
would let [him] out,” and Reeves wanted to be released so he
could get home in time for the aforementioned cookout.5 He
testified: “I ha[d] not seen my family in a while, so I wanted
to see them.” “That is why I lied.”6 As promised, the police
released him after the conversation with Officer Fenton and
he attended his family’s cookout.

       In the meantime, a “very excited” Officer Fenton
notified the detective bureau.7       Fenton told Detective
Christopher Krokos, the lead detective on the City Gas &
Diesel homicide, about Reeves’s story.               Krokos
understandably followed up by contacting Reeves who agreed
to come to the police station to be interviewed on May 30th,
five days after the robbery. Once more, Reeves repeated that
a six-foot-tall, brown-skinned, Black male named Jermaine
Taylor had been the robber. This time he added a detail that
police knew was not true. Even though the surveillance video

       3
         App. 307.
       4
         Id. at 306.
       5
         Id. at 318.
       6
         Id. at 318.
       7
         Id. at 307-08.
                               2
depicted the shooter leaving the scene alone and on foot,
Reeves stated that he had seen the robber run out of the store
and get into a dark-colored Buick with lightly tinted windows
and three other passengers.

       Detective Krokos would later write in his daily report
that Reeves’s adoptive father, Terrie Reeves, had informed
the detective that Reeves had admitted to lying about
witnessing the robbery. Krokos also noted in his report that
Reeves’s father had cautioned Reeves not to lie again to the
police.8

       Nevertheless, at this point, Krokos confronted Reeves
about his untruthfulness. Reeves then revised his story and
said that he had heard the shooting but had not actually seen
it. To make things worse for Reeves, he admitted that
Jermaine Taylor, the man he claimed had been the robber,
“was someone he made up,” and that “none of the
information he gave [Krokos] was true.” Reeves’s admission
that he had been lying clearly gave police reason to suspect
that he might have been involved. As a result of that
admission, Reeves was charged with hindering apprehension,
and the investigation continued.

       Police had already received a number of leads pointing
in a different direction that should have, at the very least,
cautioned against myopically focusing on Reeves. The very
same day of the robbery, staff at the county work-release
center in Harrisburg had informed police that two work-
release clients—Kai Anderson and Michael Holmes—had
escaped the night of the robbery. Anderson fit the description
of the robbery suspect, and the work-release staff told police
that it was “very coincidental” that Anderson and Holmes
escaped the same night the robbery occurred. The work-
release staff also provided police with photos and information
about Anderson to aid in pursuing him.

      8
        Officer Fenton, Detective Krokos and Terrie
Reeves were not the only individuals to have
witnessed Reeves lying. His foster care reports
described him as “deliberately untruthful” as a child
and “often untruthful . . . to avoid what would be
minimal consequences.”
                              3
       Next, Kimberly Clark, the grandmother of Anderson’s
child, had independently called police to tell them that
Anderson had been making minute-long calls to her daughter,
Danielle Ignazzito, several times a day and had been “act[ing]
mysterious[ly].”9 Clark also reported that Anderson had told
Ignazzito that “he’s on the run and or is wanted.”10

        Then came a third tip about Anderson. Ignazzito,
Clark’s daughter and the mother of Anderson’s son, had
initially been “afraid” to give police information about
Anderson’s whereabouts.11 But on May 29th, just four days
after the robbery, Ignazzito told police that Anderson had
called her several times to say that he had a lot of money to
give her for their child. Ignazzito said she had also spoken to
Kenneth Marlow, a friend of Anderson’s. Marlow told her
that Anderson was in trouble, that Anderson had fled to Ohio
with Michael Holmes (who had escaped from the work-
release center with Anderson), and that Anderson was being
sought by police in connection with the City Gas & Diesel
homicide.

        Six days after the robbery, police arrested Anderson
for escaping from the work-release center. Detective Krokos
took the opportunity to interview Anderson, just as he had
interviewed Reeves a few days earlier. The interview was
unfruitful. Anderson confirmed that he had escaped from the
work-release center but denied any involvement in the
robbery. He did, however, confirm that he had asked Marlow
to call Ignazzito, just as Ignazzito had told Krokos. Yet it is
not clear if he also confirmed that he had expressed concern
about being connected to the robbery, as Ignazzito had
reported. Anderson did admit that he had been “in the area of
Linden St[.] and Walnut St.”—just a few blocks away from
the City Gas & Diesel—on the night of the robbery.12 He
also said that he had encountered the real robber there and
actually heard that person confess to the crime. Despite
information placing him near the crime scene, and the three

      9
        App. 137.
      10
         Id.
      11
         Id.
      12
         Id. at 159.
                              4
independent tips at least suggesting that further investigation
into Anderson was warranted, it does not appear that
suspicion ever turned from Reeves to Anderson (or to anyone
else).

       Then came a fourth tip. A week after interviewing
Anderson, Detective Krokos interviewed Marlow. Marlow
admitted calling Ignazzito on Anderson’s behalf, as Ignazzito
had reported, and to telling Ignazzito that Anderson was on
the run. Marlow also said that Anderson was “involved in the
robbery/homicide at the City Gas & Diesel on State St.”13
Marlow even told Krokos that he heard Anderson admit his
involvement. According to Marlow, Anderson had said that
he (Anderson) “got a gun[,] went to the gas station[,] and shot
the dude and robbed him.”14

       Thus, Detective Krokos now had information
implicating Anderson from not two, not three, but four
sources—the work-release center staff, Clark, Ignazzito, and
now Marlow. Yet, for reasons that are not at all clear on this
record, the investigation continued to focus on Reeves. There
is more.

       Approximately a month after the robbery, another
witness, Johnathan Johnston, came forward. Johnston and
Anderson had known each other for over fifteen years and
had reunited at Dauphin County Prison after Anderson’s
arrest for escaping from the work-release center. Johnston
told Krokos that Anderson had admitted involvement in the
City Gas & Diesel robbery while they were in the County
Prison. Johnston’s statement about Anderson’s confession
should have been taken particularly seriously because, unlike
the stories that Reeves gave Krokos, Anderson’s purported
statements to Johnston included subtle details about the
robbery, many of which were unknown to the public.15

       13
          Id. at 165.
       14
          Id. at 82.
       15
          According to Johnston’s statement, Anderson
said he was “show[n]” the surveillance tape of the
robbery during his interview with police. App. 93-94.
The police report of Anderson’s interview does not
confirm that claim, nor does it suggest that any such
                              5
Specifically, Johnston said that Anderson had told him that
(1) the shooter needed to be small enough to fit through the
gap in the bullet-proof glass window to get to the other side
of the counter; (2) the shooter was wearing all black; and (3)
the shooter left the store on foot heading west. Johnston’s
statements to Krokos contained other indicia of reliability:
Johnston knew that Anderson had admitted his involvement
to Marlow, and that Marlow had repeated Johnston’s
inculpatory statement to Ignazzito.

        Johnston told Krokos something else that the detective
inexplicably ignored. According to Johnston, “[Anderson]
knew he could beat [the evidence in the surveillance video]
he just need somebody talk to [Ignazzito] so she can, don’t
say nothing and get scared because the cops already tried to
scare her.”16 Indeed, Johnston said that Anderson had also
asked him (Johnston) to have his wife threaten Ignazzito not
to give the police any more information about Anderson and
the City Gas & Diesel homicide. Finally, Johnston said that
Anderson told him that after “the gun went off[,] the [clerk]
fell then got back up and he fell again.”17 That detail was
visible in surveillance videos of the crime, but had not been
made public. Again, for reasons that are not at all apparent




viewing took place. However, the police reports
indicate that police also showed the video to Xavier
Henry, who had been identified as one of the City Gas
& Diesel customers on the night of the robbery. Police
did so in an attempt to identify Derrick Small, the only
customer present in the City Gas & Diesel store when
the robber entered. There is nothing in the record to
establish any similar reason for showing the video to
Anderson, who, as far as we know, had no information
to identify Small or any other customer. Nor is it clear
what portions of the video, if any, Anderson might
have seen. The video is divided into multiple parts
with footage from differing cameras both inside and
outside of the store.
       16
          App. 94.
       17
          Id. at 97.
                              6
on this record, Krokos failed to pursue Anderson as a suspect,
and the investigation began to “stall.”18

       Despite information that directly implicated
Anderson and despite the police learning that
Anderson knew subtle details about the robbery, the
investigation appears to have simply gone dormant for
three years. Then, serendipity unfortunately placed
Reeves in Detective Krokos’s crosshairs yet again. In
July of 2009, Reeves, who was now twenty-one years
old, had been arrested with his girlfriend after an
incident at a bar. Upon learning of Reeves’s arrest,
and despite all of the evidence pointing toward
Anderson, Krokos took the opportunity to speak with
Reeves once more about the City Gas & Diesel
robbery. At his trial, Reeves testified that he agreed to
be interviewed again because he wanted to keep his
pregnant girlfriend—with whom he had been
arrested—from going to prison and was told that the
officers would “see what they could do” if he talked to
them.19

       Reeves offered the same story about having witnessed
the crime that he had given Krokos three years earlier.
However, this time Reeves said that two men, not one, had
robbed the store and that Reeves’s own cousin had stood
outside as a lookout. Again, Krokos pressed Reeves on his
lack of truthfulness. The video showed that only one man
had robbed the store. Reeves responded by changing his
story yet again. This time, he stated he was not actually
across the street when he saw the shooting, but was in a
parking lot near the payphone; that he spoke to his cousin
about the imminent plan to rob the store; and that it was an
unknown male who actually went inside. The questioning
continued until Reeves finally asked, “[W]hat if I was in the

       18
          Krokos conducted an interview with Michael
Holmes in March of 2007, some nine months after the
crime, but Holmes admitted only that he and Anderson
had left the work-release center before the homicide.
Holmes denied having ever even been in the City Gas
& Diesel.
       19
          App. 387-88.
                               7
store when it happened then what[’]s that?”20 The police
report states:

              Reeves was confronted with the fact
      that if other people are involved they may talk
      to us about the incident. He was asked what
      [are Reeves’s cousin and the other individual
      Reeves named] going to say if asked about
      this incident? Reeves stated that they will say
      that it was me who did it. Reeves then began
      to become concerned that he would not see his
      unborn child if he told us what occurred.
      Reeves was further questioned.

       Reeves then began to visibly shake and tremble. He
began to cry.21 Then Reeves “confessed.” He said that he
robbed the store because he needed money; that he knew the
people in the store because he used to sweep the floors for
them; that he got a gun but that he did not know the make or
caliber; and that he had been given the gun the same day by
someone in Baltimore, Maryland.

       Reeves then provided details on the robbery, many of
which were prompted by leading questions from Krokos and
his team. They posed questions to confirm that, like the
robber in the video, Reeves had also jumped over the counter:
              Q. . . . Do you remember did you jump
       up or do anything in the store?
             A. I think I jump behind the counter.22

They asked questions to corroborate the fact that bullet-proof
plastic separated the robber from the clerk:
              Q. Okay what was separating customers
        from behind the register?
             A. Glass[.]
             Q. Was it glass or plastic or?



      20
         Id. at 198.
      21
         Id.
      22
         Id. at 106.
                              8
            A. Probably bullet proof plastic or
      something.23

They verified that Reeves’s gun matched the gun used:
              Q. And describe the gun again what
      color was it?
             A. All black[.]
             Q. And it was a semi-automatic not a
      revolver.
             A. Semi-automatic yes.24

They asked Reeves to specify that he had acted alone:
            Q. And just, just so we’re clear you
      were the only one involved in this there was
      nobody else involved in this incident?
             A. No not at all.25

And they repeatedly pressed Reeves on whether he had worn
something to disguise his face, as the robber had done in the
video:
             Q. Okay so what are you wearing when
       you go in the store?
             A. Black, black pants, black t-shirt.
           Q. Are you wearing a mask? Do you
      remember?
             A. No I don’t remember if I had a mask
      on or not probably, probably did, no I didn’t
      have a mask on.
             Q. You didn’t have a mask on?
             A. No[.]
             A. Did you have gloves?
             Q. I think so, I think so probably.
             ...



      23
         Id.
      24
         Id. at 108.
      25
         App. 113.
                               9
               Q. Q. Did [the store clerk] recognize
      you?
            A. Most likely yes. He seen me plenty
      of times before that so if I wasn’t wearing a
      mask yes.
           Q. [S]o what you’re saying is you don’t
      remember whether or not you were wearing . . .
               A. [INAUDIBLE] masks or gloves that
      night.
            Q. Okay, those are the two things you
      don’t remember whether or not you were
      wearing that night.
               A. Yes[.]
            Q. Just for the tape I’m not sure it got ah
      on there clearly, you don’t remember if you
      were wearing a mask or gloves?
               A. No[.]26


       Despite obtaining what purported to be a confession,
Krokos either ignored or did not credit some rather
remarkable discrepancies between Reeves’s account and the
actual facts of the robbery. Reeves said that he struggled with
the clerk before the shooting. Yet the surveillance video
shows that the clerk and the robber never even touched one
another.27 Reeves said he ran towards Boas Street, which is
north of the City Gas & Diesel, while the actual robber
headed in a westerly direction, according to the surveillance
video. Reeves also said he did not remember if he had gotten
anything from the store after firing the gun, though the real
robber left with a bag full of money from the cash register.
Finally, Reeves said the gun he used “looked like a []9”




      26
          Id. at 105, 112.
      27
          The clerk simply attempted to close the
bullet-proof window separating the check-out counter
from the customer area before the robber could point
the gun through the window’s opening.
                              10
millimeter,28 which is the same caliber as a .357, but the
actual gun used was a much smaller, .25 caliber.

       Most significantly, in the video, the shooter appears to
be right-handed. He removed the pistol from the front of his
pants with his right hand then brandished it in his right hand.
He switched the gun to his left hand only after the clerk had
been shot and he needed his right hand to finish taking money
from the register and from the floor. Once he had collected
the money, he used his right hand to jump back over the
counter. It is uncontested that Reeves is left-handed, and he
has offered affidavits from people who knew him as a child to
corroborate that.29

       Of course, police may not have noticed that Reeves
was left-handed during the numerous times they interacted
with him and it would have been understandable to simply
assume, absent a reason to suspect otherwise, that he was
right-handed. This is particularly true in light of his
confession and his prior interviews, which continuously
resulted in what can only be described as false exculpatory
statements.

        However, as I have already detailed, police had to
ignore several leads to even get to the point of Reeves’s
confession three years after the fatal robbery. These leads
included evidence that Anderson had admitted his
involvement in the crime to two people; that he had suddenly
come into a significant sum of money; that he had escaped
from the work-release center on the night of the robbery; and
that he had been in the vicinity of the robbery that night.
Anderson had also tried to have someone threaten Ignazzito
to keep her from saying anything more about his involvement
in the robbery, and he had made statements revealing a detail
about the robbery not known to the general public. Yet,
during the three-year lapse in this investigation, it does not

       28
         Id. at 108.
       29
         Reeves offered testimony at trial that he was
left-handed, but his trial counsel never offered
evidence to corroborate that fact. Given his
confession, the jury most likely simply discredited his
uncorroborated testimony.
                              11
appear that police did anything to pursue the evidence of
Anderson’s involvement before initiating the discussion with
Reeves that ultimately led to the statement that resulted in his
conviction for the fatal robbery. Given this record, as I noted
at the outset, Reeves’s apparent confession does not negate
the claim of actual innocence based on newly discovered
evidence under Schlup v. Delo.30

      Reeves would not be the first person to have falsely
confessed to a crime.31 According to the National Registry of
Exonerations, roughly half of individuals who have been
exonerated following murder convictions involving DNA
evidence in the United States since 1989, made a false
confession.32 In Pennsylvania, the rate of false confessions is

       30
           513 U.S. at 324. I do not suggest that
evidence of actual innocence must always be as strong
as we have on this record before relief is available
under Schlup v. Delo. Indeed, it can only be hoped
that the kind of investigation that led to Reeves’s
confession, despite the strong evidence of someone
else’s guilt, will be exceedingly rare. Although the bar
set by Schlup is a high one, it should not be raised so
high that it becomes impossible to clear it. Nothing in
Schlup leads me to conclude that the Court intended
the interests of justice advanced by that case to be
illusory in all but the most outrageous and extreme
cases or that the accused must be able to prove actual
innocence to a near mathematical certainty.
        31
           During oral argument, counsel for Reeves
was asked about the reported frequency of
exonerations following false confessions. He
subsequently submitted a reply pursuant to Fed. R.
App. P. 28(j). See Appellant’s May 28, 2018 Rule
28(j) Letter.
        32
           Compare Murder Exonerations in the U.S.,
The National Registry of Exonerations,
http://www.law.umich.edu/special/exoneration/Pages/
Exonerations-in-the-United-States-Map.aspx (click
“Murder” in “Crime” field; click “Present” button in
the “DNA” field) with Murder Exonerations in U.S.
with False Confessions,
http://www.law.umich.edu/special/exoneration/Pages/
                              12
comparable. Nearly half of individuals who have been
exonerated with DNA evidence following a conviction for
murder in Pennsylvania had confessed to those murders.33

Exonerations-in-the-United-States-Map.aspx (click
“Murder” in “Crime” field; click “Present” button in
“False Confession” field; click “Present” button in the
“DNA” field). As of May 28, 2018, nationally, the
Registry has recorded 195 individuals that were
convicted of murder in cases involving DNA evidence
and that have since been exonerated. Of those
exonerees, 43 percent, or 84 individuals, gave false
confessions. These statistics were supplied by counsel
in his May 28, 2018 Rule 28(j) letter. See supra note
8; Appellant’s May 28, 2018 Rule 28(j) Letter 1-2.
        33
           Compare Murder Exonerations in
Pennsylvania, The National Registry of Exonerations,
http://www.law.umich.edu/special/exoneration/Pages/
Exonerations-in-the-United-States-Map.aspx (click
“Pennsylvania” on interactive map; click “Murder” in
“Crime” field) with Murder Exonerations in
Pennsylvania with False Confessions,
http://www.law.umich.edu/special/exoneration/Pages/
Exonerations-in-the-United-States-Map.aspx (click
“Pennylvania” on interactive map; click “Murder” in
“Crime” field; click “Present” button in “False
Confession” field; click “Present” button in the
“DNA” field). The Registry has recorded 9
individuals that were convicted of murder in
Pennsylvania and have since been exonerated in cases
that involved DNA evidence. Of those exonerees, 44
percent, or 4 individuals, gave false confessions.
        As Brandon L. Garrett writes, there is a “new
awareness among scholars, legislators, courts,
prosecutors, police departments, and the public that
innocent people falsely confess, often due to
psychological pressure placed upon them during police
interrogations.” Garrett, The Substance of False
Confessions, 62 Stan. L. Rev. 1051, 1052-53 (2010).
Reeves’s “trembl[ing],” tear-filled confession certainly
bore the markings of such psychological distress.
App. 198. He even attempted suicide in his cell just
prior to having given the confession.
                              13
       In referring to this data, I do not, of course, suggest
that police should have completely ignored Reeves’s
confession. Rather, I refer to it simply to underscore that
Reeves’s confession does not negate his arguments under
Schlup. I have already noted that absent the detective’s
inexplicable failure to pursue leads pointing to Anderson and
the equally puzzling three-year gap in this investigation, there
would have been no incriminating statement from Reeves.

                              II.

      Reeves has now spent eight years in prison for this
armed robbery and murder conviction, a fact that will
hopefully inform the speed with which subsequent courts
address his now likely procedurally-cognizable habeas claim.




                              14
