Petition for Writ of Certiorari — Chadwick Dotson, Director, Virginia Department of Corrections, Petitioner v. Justin Michael Wolfe

No. 25 -_____

IN THE

Supreme Court of the United States

______________________________________________

CHADWICK DOTSON,

Petitioner,

v.

JUSTIN MICHAEL WOLFE,

Respondent.

_______________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

_______________________________________________

PETITION FOR WRIT OF CERTIORARI

_______________________________________________

JASON S. MIYARES

Attorney General of Virginia

THEOPHANI K. STAMOS

Deputy Attorney General

DONALD E. JEFFREY, III

Senior Assistant Attorney

General

LIAM A. CURRY

Assistant Attorney General

KEVIN M. GALLAGHER

Solicitor General

Counsel of Record

GRAHAM K. BRYANT

Principal Deputy Solicitor

General

RICK W. EBERSTADT

MEREDITH L. BAKER

Deputy Solicitors General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

kgallagher@oag.state.va.us

Counsel for Petitioner

ii

QUESTION PRESENTED

Whether the “new” evidence required to make an

actual-innocence claim under Schlup v. Delo, 513 U.S.

298 (1995), includes only newly discovered evidence

that was not available at the time of trial or broadly

includes all evidence that was not presented to the

factfinder during trial.

iii

PARTIES TO THE PROCEEDING

Petitioner is Chadwick Dotson, Director of the

Virginia Department of Corrections, whose

predecessor was the respondent in the district court

and who was the appellee in the court of appeals.

Respondent Justin Michael Wolfe, who is serving

a sentence for murder in a Virginia prison, was the

petitioner in the district court and appellant in the

court of appeals.

iv

RELATED PROCEEDINGS

Wolfe v. Dotson, No. 24-6840 (4th Cir.) (judgment

entered July 7, 2025).

Wolfe v. Clarke, No. 1:22-cv-00700 (E.D. Va.) (order

dismissing the petition for writ of habeas corpus

entered on March 28, 2024; order on motion to

reconsider entered on August 8, 2024).

Commonwealth v. Wolfe, Nos. CR05050490-01,

CR05050703-01, & CR12003736-00 (Prince William

Cir. Ct.) (entry of judgment in accordance with guilty

plea on July 20, 2016).

Wolfe v. Commonwealth, No. 2081-16-4 (Va. Ct. App.)

(petition denied on May 10, 2017; petition for appeal

denied after remand on Sept. 20, 2019; petition denied

by three-judge panel on Dec. 9, 2019).

Wolfe v. Commonwealth, No. 170780 (Va.) (petition for

appeal refused Feb. 5, 2018); No. 200205 (petition for

appeal refused after remand on Sept. 3, 2020).

Wolfe v. Virginia, No. 18-227 (U.S.) (petition for writ

of certiorari granted, judgment vacated, and case

remanded Jan. 7, 2019); No. 20-1056 (petition for writ

of certiorari denied June 21, 2021).

v

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... ii

PARTIES TO THE PROCEEDING ............................iii

RELATED PROCEEDINGS ........................................ iv

TABLE OF CONTENTS ............................................... v

TABLE OF AUTHORITIES ........................................ vi

OPINIONS BELOW ...................................................... 1

JURISDICTIONAL STATEMENT .............................. 1

RELEVANT STATUTORY PROVISION.................... 1

INTRODUCTION .......................................................... 2

STATEMENT OF THE CASE...................................... 4

A. Legal background ........................................... 4

B. Factual and procedural background ............ 7

REASONS FOR GRANTING THE PETITION ....... 16

I.

The Courts of Appeals are divided on the

question presented ....................................... 16

A. Three Courts of Appeals have issued

published opinions applying the “newly

discovered” standard .................................... 18

B. Six Circuits instead apply the “newly

presented” standard ..................................... 21

II.

The question presented is important and

recurring ........................................................ 27

III.

The Fourth Circuit is incorrect................... 30

IV.

This case is an ideal vehicle for resolving

the question presented ................................ 37

CONCLUSION ............................................................. 38

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Middlebrooks,

640 Fed. Appx. 1 (D.C. Cir. 2016) ........................ 20

Amrine v. Bowersox,

238 F.3d 1023 (8th Cir. 2001) ............................... 20

Blackledge v. Allison,

431 U.S. 63 (1977) .................................................. 28

Blanc v. United States,

No. 17-12394-A, 2017 WL 11812993

(11th Cir. July 12, 2017)........................................ 26

Bousley v. United States,

523 U.S. 614 (1998) .......................................... 27, 34

Brown v. Davenport,

596 U.S. 118 (2022) .......................................... 27, 29

Calderon v. Thompson,

523 U.S. 538 (1998) ............................................ 5, 27

Cleveland v. Bradshaw,

693 F.3d 626 (6th Cir. 2012) ............................. 2, 16

Corbitt v. New Jersey,

439 U.S. 212 (1978) ................................................ 28

Fontenot v. Crow,

4 F.4th 982 (10th Cir. 2021).................2, 16, 19, 21,

...................................................................... 24, 25, 34

Gable v. Williams,

49 F.4th 1315 (9th Cir. 2022) ............................... 23

Gomez v. Jaimet,

350 F.3d 673 (7th Cir. 2003) ........................... 23, 35

Green v. Secretary, Dep’t of Corrs.,

28 F.4th 1089 (11th Cir. 2022) ............................. 17

vii

Griffin v. Johnson,

350 F.3d 956 (9th Cir. 2003) ....................23, 24, 26,

...................................................................... 30, 32, 34

Hancock v. Davis,

906 F.3d 387 (5th Cir. 2018) ........................... 19, 20

Harrington v. Richter,

562 U.S. 86 (2011) ................................................ 4, 5

Herrera v. Collins,

506 U.S. 390 (1993) ................................................ 31

Hubbard v. Rewerts,

98 F.4th 736 (6th Cir. 2024).................................. 22

Kidd v. Norman,

651 F.3d 947 (8th Cir. 2011) ................................. 20

Kuhlmann v. Wilson,

477 U.S. 436 (1986) ................................................ 27

Majoy v. Roe,

296 F.3d 770 (9th Cir. 2002) ................................. 23

Marks v. United States,

430 U.S. 188 (1977) ................................................ 32

McQuiggin v. Perkins,

569 U.S. 383 (2013) .............................................. 6, 7

Moore v. Quarterman,

534 F.3d 454 (5th Cir. 2008) ................................. 19

Murray v. Carrier,

477 U.S. 478 (1986) .................................................. 5

Patterson v. Adkins,

124 F.4th 1035 (7th Cir. 2025) ............................. 23

Premo v. Moore,

562 U.S. 115 (2011) ................................................ 28

Reeves v. Fayette SCI,

897 F.3d 154 (3d Cir. 2018) ....................... 16, 19, 35

viii

Rivas v. Fischer,

687 F.3d 514 (2d Cir. 2012) ................................... 21

Rivers v. Guerrero,

605 U.S. 443 (2025) .................................................. 5

Royal v. Taylor,

188 F.3d 239 (4th Cir. 1999) ................................. 35

Samia v. United States,

599 U.S. 635 (2023) ................................................ 29

Schlup v. Delo,

513 U.S. 298 (1995) ........................ 2, 3, 6, 7, 16, 21,

............................................................... 27, 29, 32, 33

Shinn v. Ramirez,

596 U.S. 366 (2022) ............................ 3-6, 27, 31, 33

Sistrunk v. Armenakis,

292 F.3d 669 (9th Cir. 2002) ................................. 23

Sistrunk v. Rozum,

674 F.3d 181 (3d Cir. 2012) ....................... 18, 19, 22

Slinkard v. McCollum,

675 Fed. Appx. 851 (10th Cir. 2017) .................... 26

Smith v. Baldwin,

510 F.3d 1127 (9th Cir. 2007) ............................... 34

Souter v. Jones,

395 F.3d 577 (6th Cir. 2005) ................................. 22

Stimpson v. Warden,

No. 22-10190, 2025 WL 484049

(11th Cir. Feb. 13, 2025) ........................................ 17

Stutson v. United States,

516 U.S. 193 (1996) ................................................ 27

United States v. Timmreck,

441 U.S. 780 (1979) ................................................ 28

United States v. Torres,

163 F.3d 909 (5th Cir. 1999) ................................. 26

ix

Wainwright v. Sykes,

433 U.S. 72 (1977) .................................................... 3

Weeks v. Bowersox,

119 F.3d 1342 (8th Cir. 1997) ........................... 4, 25

Wolfe v. Clarke,

691 F.3d 410 (4th Cir. 2012) ................................. 11

Wolfe v. Clarke,

718 F.3d 277 (4th Cir. 2013) ........................... 12, 35

Wolfe v. Clarke,

819 F. Supp. 2d 538 (E.D. Va. 2011) .................... 11

Wolfe v. Commonwealth,

265 Va. 193 (2003) .................................................... 9

Wolfe v. Dotson,

No. 24-6840 (4th Cir. Oct. 7, 2024) .................. 7, 11

Woodford v. Garceau,

538 U.S. 202 (2003) .................................................. 4

Statutes

28 U.S.C. § 2244 ................................................... 1, 5, 19

Other Authorities

S. Ct. R. 10 ........................................................ 17, 25, 27

U.S. Courts, Statistical Tables for the

Federal Judiciary – December 2024,

Table C-2, U.S. District Courts––

Civil Cases Commenced, by Basis of

Jurisdiction and Nature of Suit,

During the 12-Month Periods Ending

December 31, 2023 and 2024 (Dec. 31,

2024), https://tinyurl.com/mr426zsv .................... 29

x

U.S. Courts, U.S. District Courts —

Judicial Business 2024, Criminal

Filings, https://tinyurl.com/33ews8fp

(last accessed Dec. 3, 2025) ................................... 30

OPINIONS BELOW

The opinion of the court of appeals (App. 1a–48a)

is reported at 144 F.4th 218. The district court’s

opinion dismissing Respondent Justin Michael

Wolfe’s habeas corpus petition is unpublished but

reproduced at App. 57a–76a. The district court’s

opinion granting in part and denying in part the

motion to reconsider is unpublished but reproduced at

App. 49a–56a.

JURISDICTIONAL STATEMENT

The court of appeals entered its judgment on July

7, 2025. On October 1, 2025, the Chief Justice

extended the time for filing a petition for a writ of

certiorari to December 4, 2025. See No. 25A368. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

28 U.S.C. § 2244(d)(1)(A): A 1-year period of

limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall

run from . . . the date on which the judgment became

final by the conclusion of direct review or the

expiration of the time for seeking such review.

2

INTRODUCTION

Justin Wolfe hired someone to murder a drug

supplier to whom he was heavily indebted, confessed

to his crimes, pleaded guilty to first-degree murder,

and was sentenced for that premeditated murder

nearly a decade ago. He then procedurally defaulted

claims challenging his guilty plea and failed to file a

federal habeas corpus petition within the statute of

limitations. But now the Fourth Circuit has ordered

the district court to allow his claims to proceed based

on a supposed showing of “actual innocence”—in other

words, a showing that Wolfe is innocent of the crime

to which he confessed and pleaded guilty.

That erroneous decision exacerbates a circuit split

on a question of critical importance to the States. In

Schlup v. Delo, 513 U.S. 298 (1995), this Court held

that a prisoner may pursue constitutional claims on

the merits notwithstanding the existence of a

procedural bar to relief if he can provide “new reliable

evidence” of his actual innocence. Id. at 324. Since

then, the circuits have deeply divided on “whether the

‘new’ evidence required under Schlup includes only

newly discovered evidence that was not available at

the time of trial, or broadly encompasses all evidence

that was not presented to the fact-finder during trial,

i.e., newly presented evidence.” Cleveland v.

Bradshaw, 693 F.3d 626, 633 (6th Cir. 2012); see also

Fontenot v. Crow, 4 F.4th 982, 1032 (10th Cir. 2021)

(joining the Second, Sixth, Seventh, and Ninth

Circuits on one side of the split, while describing the

Third, Fifth, and Eighth Circuits as being on the other

3

side). This Court’s intervention is needed to resolve

the intractable split between the Courts of Appeals.

This question of federal law is crucially important.

Allowing habeas petitioners to cure default simply by

showing newly presented evidence allows litigants to

sandbag during trials and direct appeals,

transforming these state court proceedings into

“merely a ‘tryout on the road’ to federal habeas relief.”

Shinn v. Ramirez, 596 U.S. 366, 377 (2022) (quoting

Wainwright v. Sykes, 433 U.S. 72, 90 (1977)). This

result flies in the face of this Court’s instruction in

Schlup that “new” evidence of actual innocence is

“obviously unavailable in the vast majority of cases,”

and thus “claims of actual innocence” should be

“rarely successful.” 513 U.S. at 324. Only a “newly

discovered” standard balances the important state

interest in finality of state convictions against the

individual’s interest in ensuring justice in the most

extraordinary of cases, allowing newly discovered

“exculpatory

scientific

evidence,

trustworthy

eyewitness accounts, or critical physical evidence” to

act as a gateway to a defaulted claim. Ibid.

The Fourth Circuit’s ruling was also incorrect,

joining the wrong side of the circuit split. This result

is exacerbated by the fact that Wolfe both confessed to

and pleaded guilty to the very crime he now claims he

is actually innocent of. As one judge succinctly stated,

“there is an inherent paradox in the notion that

someone who has stood in open court and declared, ‘I

am guilty,’ may turn around years later and claim

that he deserves to pass through the actual innocence

4

gateway.” Weeks v. Bowersox, 119 F.3d 1342, 1355

(8th Cir. 1997) (en banc) (Loken, J., concurring).

Without correction, any prisoner—even one who

pleaded guilty—can attempt to reopen his judgment

by merely highlighting some previously unpresented

piece of evidence—no matter how old or stale it is.

This Court should grant the petition.

STATEMENT OF THE CASE

A.

Legal background

Congress enacted the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) “to reduce delays

in the execution of state and federal criminal

sentences” and to “further the principles of comity,

finality, and federalism.” Woodford v. Garceau, 538

U.S. 202, 206 (2003) (quotation marks omitted). To

accomplish these purposes, AEDPA ensures that “the

availability

of

habeas

relief

is

narrowly

circumscribed.” Shinn, 596 U.S. at 375. This is

because federal habeas review “overrides the States’

core power to enforce criminal law,” id. at 376, and

“intrudes on state sovereignty to a degree matched by

few exercises of federal judicial authority,”

Harrington v. Richter, 562 U.S. 86, 103 (2011)

(quotation marks omitted). The stringent rules

governing habeas petitions reflect an understanding

of the “special costs” that federal habeas relief

imposes “on our federal system,” including that

habeas relief undermines a State’s investment in a

criminal trial and interferes with the State’s “interest

5

in punishing the guilty.” Shinn, 596 U.S. at 376–77

(quotation marks omitted). Habeas procedures thus

demonstrate “respect [for] our system of dual

sovereignty.” Id. at 375.

Accordingly, this Court repeatedly has affirmed

the importance of federal courts’ “enduring respect for

the State’s interest in the finality of convictions that

have survived direct review within the state court

system.” Calderon v. Thompson, 523 U.S. 538, 555

(1998) (cleaned up) (citation omitted). In addition to

being “essential to both the retributive and the

deterrent functions of criminal law,” finality

“enhances the quality of judging,” and serves “to

preserve the federal balance.” Ibid. Overturning state

criminal decisions on federal habeas review

undermines “both the States’ sovereign power to

punish offenders and their good-faith attempts to

honor constitutional rights[.]” Murray v. Carrier, 477

U.S. 478, 487 (1986) (cleaned up) (citation omitted).

The writ of habeas corpus is thus an

“extraordinary remedy” that guards only against

“extreme malfunctions in the state criminal justice

systems.” Harrington, 562 U.S. at 102. “To ensure

that federal habeas corpus retains its narrow role,

AEDPA imposes several limits on habeas relief.”

Shinn, 596 U.S. at 377. One of these limits is AEDPA’s

strict one-year time limit for filing a federal habeas

petition. 28 U.S.C. § 2244(d)(1)(A). This statute of

limitations “promotes exhaustion of claims and

respects state-court processes.” Rivers v. Guerrero,

605 U.S. 443, 455 (2025).

6

A similar limitation on habeas relief is the doctrine

of procedural default. A federal court “generally may

consider a state prisoner’s federal [habeas] claim only

if he has first presented that claim to the state court

in accordance with state procedures.” Shinn, 596 U.S.

at 371. “When the prisoner has failed to do so, and the

state court would dismiss the claim on that basis, the

claim is ‘procedurally defaulted.’” Ibid. The

procedural default rule “protects against ‘the

significant harm to the States that results from the

failure of federal courts to respect’ state procedural

rules.” Id. at 378–79 (quotation marks omitted). In

fact, “it would be unseemly in our dual system of

government for a federal district court to upset a state

court conviction without” giving the state courts an

opportunity “to correct a constitutional violation.” Id.

at 379 (quotation marks omitted).

When a habeas petitioner cannot “excuse his

failure” related to the statute of limitations or

procedural default, he “may obtain review of his

constitutional claims only if he falls within the

‘narrow class of cases implicating a fundamental

miscarriage of justice.’” Schlup, 513 U.S. at 314–15

(quotation marks omitted). This “miscarriage of

justice exception” applies to a “severely confined

category: cases in which new evidence shows ‘it is

more likely than not that no reasonable juror would

have convicted’” the petitioner. McQuiggin v. Perkins,

569 U.S. 383, 394–95 (2013) (quoting Schlup, 513 U.S.

at 329). Relevant here, “a credible showing of actual

innocence may allow a prisoner to pursue his

7

constitutional

claims

...

on

the

merits

notwithstanding the existence of a procedural bar to

relief.” Id. at 392. A “credible” showing of actual

innocence requires “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. Because such evidence is “obviously unavailable

in the vast majority of cases, claims of actual

innocence are rarely successful.” Ibid.

B.

Factual and procedural

background

In 2001, Justin Wolfe was a prolific drug dealer in

Northern Virginia. After initially selling ecstasy, he

eventually settled on selling marijuana to high school

students, earning him hundreds of thousands of

dollars. [CA.JA536, 1247].1 Still, Wolfe was heavily in

debt to Daniel Petrole, from whom Wolfe had been

buying his marijuana for resale. [CA.JA1417–18]. So

Wolfe decided to enlist help to rob and murder Petrole.

[CA.JA1418–19].

Wolfe’s friend Owen Barber, a fellow drug dealer,

owed Wolfe a drug-related debt, but Wolfe decided to

forgive that debt and give Barber an additional

$10,000 in exchange for Barber carrying out the

robbery and the murder. [CA.JA1418–19, 1340].

Wolfe believed that Petrole would not recognize

1 References to CA.JA___ are to pages in the Joint Appendix,

Wolfe v. Dotson, No. 24-6840 (4th Cir. Oct. 7, 2024).

8

Barber, allowing the latter to follow Petrole to his

house without raising suspicions. [CA.JA1419]. Wolfe

and Barber agreed that Wolfe would keep Barber

informed about Petrole’s whereabouts, Barber would

stalk and murder Petrole, and then Wolfe and Barber

would split Petrole’s drugs and cash. Ibid.

This agreement in place, Wolfe arranged for

Petrole to bring the drugs to another friend’s home for

a drug deal, and Wolfe then told Barber where he

would find Petrole. [CA.JA1419]. On the night of the

murder, Wolfe called Barber with an update on

Petrole’s location. [CA.JA1420]. Barber then drove to

the site of the drug deal. [CA.JA1420]. After the deal

was completed, Wolfe and Barber spoke on the phone

while Barber followed Petrole home. [CA.JA1404–05,

1420].

When Petrole arrived at his apartment complex,

Barber shot Petrole nine times while he sat in his

vehicle, killing him. [CA.JA1400–01, 1405]. Barber

then met Wolfe at a nightclub, where they “ordered a

round of drinks” to celebrate the “rack of money” that

they had both just made from Petrole’s murder.

[CA.JA1249, 1420]. The next day, Wolfe and Barber

bought new clothes and celebrated Wolfe’s birthday by

purchasing expensive bottles of champagne at a

Washington, D.C. nightclub. [CA.JA1406–07, 1249].

Soon, however, Wolfe became concerned that the

police suspected his involvement in Petrole’s murder,

and he fled to Florida. [CA.JA188–89, 1249]. Barber

went on the run himself, first flushing marijuana

9

down his toilet and then fleeing to California.

[CA.JA1409–10]. Barber’s girlfriend met him there,

and Barber told her that he and Wolfe had been

planning to kill Petrole for at least a week before they

murdered him. [CA.JA1409].

Wolfe and Barber were both arrested and charged

in connection with Petrole’s murder. Cellphone

records confirmed the multiple phone calls between

the men that night. [CA.JA1404]. Police found the gun

that Barber had used and a pair of gloves containing

Barber’s DNA that Barber had tossed out of the car

window as he fled the scene. [CA.JA1405]. They also

found marijuana in Barber’s toilet. [CA.JA1413]. And

they located an “owe sheet” in Petrole’s wallet

showing that “JW” owed him $66,325. [CA.JA1400].

Barber’s girlfriend told police officers that Barber

had admitted his and Wolfe’s roles in the murder:

Barber had told her that Wolfe was to pay him

$10,000, forgive Barber a $3,000 drug debt, and give

him marijuana, all in exchange for killing Petrole.

[CA.JA1409–10]. Police officers also found a letter

that Barber’s girlfriend had written to Wolfe, but had

not sent, in which she planned to ask Wolfe for the

money that Wolfe now owed Barber in accordance

with that deal. [CA.JA1409].

Officers charged Wolfe with capital murder,

murder for hire, and other crimes. Wolfe v.

Commonwealth, 265 Va. 193, 198 (2003). Barber

agreed to testify against Wolfe in exchange for not

facing a capital-murder charge. [CA.JA1863–64].

10

Barber testified at Wolfe’s trial that Wolfe had agreed

to pay him to kill Petrole. [CA.JA1916–17]. The jury

also heard testimony from J.R. Martin, a mutual

friend of Wolfe and Barber, that corroborated Barber’s

description of events. Martin testified that he saw

Barber and Wolfe speak privately later the night of

the murder, whereupon Wolfe told Martin that he was

about to “ma[k]e a lot of money.” [CA.JA1249]. Martin

also testified, and Wolfe himself corroborated, that

Martin told Wolfe soon after the murder “I know what

happened,” at which point Wolfe gave him a discount

on a drug purchase and forgave a drug debt.

[CA.JA1250, 2151]. Finally, Wolfe confirmed on the

stand that he had been the last person to speak to

Barber immediately before the murder and the first

person to speak to Barber immediately after, admitted

that he had spoken to friends about robbing a drug

dealer, and answered in the negative when asked

whether Barber had anything against Wolfe that

would have influenced his testimony. [CA.JA1250].

The jury heard all the evidence, convicted Wolfe, and

sentenced him to death. [CA.JA59].

In the years since, Barber has oscillated on this

version of events. In 2005, for example, Barber

recanted part of his testimony and contended instead

that the murder was a robbery gone wrong and that

Wolfe had not hired him to kill Petrole. [CA.JA571,

579–90, 592, 594, 596]. The next year, Barber

recanted this recantation, [CA.JA571], and a few

years after that, Barber wrote a letter to Wolfe’s

habeas counsel stating that Barber did not know why

11

counsel “insist[ed]” on “bothering” him and that he

had “nothing to say that could possibly help [Wolfe] in

any way, shape, or form,” [CA.JA620]. Later that year,

however, Barber testified for Wolfe in a habeas

proceeding and said that Wolfe had not been involved

in the murder. [CA.JA624]. Still, Barber admitted on

the stand that he had implicated Wolfe in a statement

mere weeks before the hearing. [CA.JA662].

Based in part on Barber’s latest testimony, a

divided Fourth Circuit affirmed an award of habeas

relief to Wolfe. See Wolfe v. Clarke, 691 F.3d 410, 426

(4th Cir. 2012). The Fourth Circuit accepted the

district court’s finding that the prosecution had

withheld a police report indicating that an officer had

advised Barber that he could avoid the death penalty

by implicating Wolfe. Id. at 415, 417; see Wolfe v.

Clarke, 819 F. Supp. 2d 538, 554 (E.D. Va. 2011).

Based on this report, the Fourth Circuit held that

Wolfe must be released or retried. Wolfe, 691 F.3d at

416–17.

Thereafter, in September 2012, the original

prosecution and investigation team recused

themselves from Wolfe’s retrial after they interviewed

Barber and suggested that they would charge him

with capital murder if he changed his prior testimony

that implicated Wolfe in the murder. [CA.JA691–771].

The state trial court then appointed a special

prosecutor to handle the case and decide whether to

retry Wolfe for his crimes. [CA.JA334, 1300, 2153].

12

The special prosecutor reviewed the evidence and

ultimately filed six charges against Wolfe related to

the incidents surrounding the death of Petrole,

including capital murder. [CA.JA1831, 1856]. At a

pre-trial hearing in Wolfe’s retrial proceeding, Barber

exercised his Fifth Amendment right not to testify. 2

[CA.JA876–79]. Instead, Wolfe obtained a recording of

the original prosecution and investigation team’s

September 2012 interview of Barber and sought—in

both federal and state court—to block the

Commonwealth’s retrial. [CA.JA90–106, 1830–38,

1103–18].

Wolfe’s

efforts

ultimately

were

unsuccessful. See Wolfe v. Clarke, 718 F.3d 277, 279

(4th Cir. 2013); [CA.JA1680].

Wolfe pleaded guilty to first-degree murder, use or

display of a firearm in the commission of a felony, and

conspiracy to dispense marijuana. [CA.JA381–82,

1289]. As part of the Commonwealth’s proffer, the

special prosecutor informed the court of Barber’s prior

recantations. [CA.JA1406–08]; [CA.JA1290]. The trial

court conducted a careful colloquy with Wolfe and his

counsel, in which Wolfe’s counsel entered into

evidence—and read into the record—Wolfe’s

handwritten confession. [CA.JA1416–21, 1826–29].

Wolfe confessed that he and Barber together had

planned Petrole’s murder. [CA.JA1418–19]. Wolfe

admitted that he had been heavily in debt to Petrole

2 The prosecution stated at another pretrial hearing that it

would give Barber “use and derivative use immunity” if he

testified truthfully for Wolfe. [CA.JA1338–39].

13

at the time, that he learned Petrole would receive a

large marijuana shipment, and that he and Barber

had then agreed to rob and murder Petrole.

[CA.JA1417–19]. Wolfe admitted that in exchange for

the crime he had agreed to forgive a debt that Barber

owed him. [CA.JA1418–19]. In the confession letter,

Wolfe told Petrole’s family:

Maybe it seems easy for me to say I’m

sorry, but it’s actually the hardest thing

I’ve had to do because it means I have to

admit what I did which contradicts what

I said at trial and the position that I have

taken for all these years of appeals and I

am very afraid that it will let the people

I love down. . . . I do not deserve your

forgiveness but I want you to know the

truth and that is why I am writing this.

I am sorry for what I did to your son.

[CA.JA1420–21]. Wolfe received an active sentence of

41 years’ imprisonment. The Commonwealth dropped

the remaining charges, including the charge for

capital murder. [CA.JA1426].

Even though Wolfe confessed and pleaded guilty,

he still appealed, arguing that his plea had been

involuntary. And even though it was the special

prosecutor who had decided to retry Wolfe, Wolfe

alleged that the prosecution was vindictive because

the original prosecution and investigation team had

committed misconduct that deprived him of Barber’s

testimony. [CA.JA1499–1521, 1683]. He exhausted

14

his direct appeals in state court in 2020, and this

Court denied certiorari in June 2021. [CA.JA1683,

1689–90, 1736, 1822–23].

In June 2022, after the AEDPA statute of

limitations had expired, Wolfe filed a habeas petition

in federal court again alleging prosecutorial

misconduct and vindictive prosecution. [CA.JA7]. The

district court had jurisdiction over Wolfe’s petition

pursuant to 28 U.S.C. § 2254(a). The Respondent, the

director of the Virginia Department of Corrections,

moved to dismiss, arguing that the limitations period

had expired and that Wolfe’s claims were procedurally

barred. See [CA.JA1243–88].

Wolfe then obtained yet another affidavit from

Barber, this one stating again that Wolfe had not been

involved in the murder. [CA.JA570–77]. Barber said

that he had invoked the Fifth Amendment at Wolfe’s

pre-trial hearing because of pressure from the original

prosecution and investigation team that had

interviewed him before the special prosecutor took

over. Ibid. Wolfe amended his petition, seeking to use

the Schlup actual-innocence gateway to overcome

both his procedural default and his failure to file

within the statute of limitations. [CA.JA47–84].

The district court rejected Wolfe’s attempt to use

the actual-innocence gateway and dismissed Wolfe’s

habeas petition as time-barred. App. 72a, 74a–75a.

The district court held that Barber’s latest affidavit

was not new reliable evidence as required under

Schlup. App. 74a. First, the contents were not new

15

because Wolfe knew “the contents of Barber’s

potential exculpatory testimony” at the time Wolfe

pleaded guilty, and Wolfe knew that whether Barber

would testify for him was “speculative.” App. 74a. And

second, the court concluded that “it cannot be the case

that after a witness has already told two sides of the

same story, each time he vacillates between them

there is ‘new’ evidence that warrants full evaluation

of a petitioner’s actual innocence to overcome an

otherwise defaulted petition.” App. 55a (order on

motion to reconsider).

The Fourth Circuit reversed. App. 1a–48a. The

Fourth Circuit observed that there is a “circuit split”

on the question whether “new” evidence under Schlup

must be evidence that was unavailable at trial, or

whether new evidence instead includes any evidence

simply not introduced at trial even if it was available.

App. 37a. The Fourth Circuit held that Schlup

requires only the latter. App. 37a. Applying that rule,

the Fourth Circuit held that Barber’s affidavit “upset

th[e] status quo” and “converted Barber from an

unavailable witness” to a witness “willing to provide a

contemporaneous” exculpatory declaration. App. 38a.

The Fourth Circuit then discounted Wolfe’s guilty

plea as involuntary, did not address Wolfe’s

handwritten confession, and remanded the case to the

district court to consider Wolfe’s substantive claims.

App. 46a–48a.

This petition for a writ of certiorari followed.

16

REASONS FOR GRANTING THE PETITION

I.

The Courts of Appeals are divided on

the question presented

Numerous Courts of Appeals have acknowledged

the “circuit split” that has occurred in the wake of the

“Schlup Court” declining to “precisely define” what it

meant by “new reliable evidence.” Fontenot, 4 F.4th at

1032. Thirty years ago, this Court held in Schlup that

a petitioner attempting to invoke the actual-innocence

gateway must present “new reliable evidence . . . that

was not presented at trial.” 513 U.S. at 324. Since

then, Courts of Appeals have wrestled with “whether

the ‘new’ evidence required under Schlup includes

only newly discovered evidence that was not available

at the time of trial, or broadly encompasses all

evidence that was not presented to the fact-finder

during trial, i.e., newly presented evidence.”

Cleveland, 693 F.3d at 633; see also Reeves v. Fayette

SCI, 897 F.3d 154, 161 (3d Cir. 2018) (“[C]ircuit 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

decision below widens a circuit split on this critical

question.

Three decades of consideration has created no

consensus; rather, an entrenched split has only

continued to grow. Almost every circuit has now

weighed in on how the Schlup decision defines “new

evidence.” Three Circuits—the Third, Fifth, and

Eighth Circuits—have held that evidence must be

17

newly discovered to qualify as new evidence under

Schlup. See 18–21, infra. Six Circuits—the Second,

Sixth, Seventh, Ninth, Tenth, and now the Fourth

Circuit—have held instead that evidence is “new” as

long as it was never presented at trial, even when the

accused had access to that evidence at the time of

trial. See 21–27, infra. The D.C. Circuit has joined the

former group in an unpublished order, see 20, infra,

and the Eleventh Circuit has recognized the split but

declined to take a position. See, e.g., Stimpson v.

Warden, No. 22-10190, 2025 WL 484049, at *3–4 (11th

Cir. Feb. 13, 2025); Green v. Secretary, Dep’t of Corrs.,

28 F.4th 1089, 1151 n.132 (11th Cir. 2022). Very little

percolation remains.

This split means that prisoners and state

governments face a vastly different standard

depending on where they are located. In some courts,

when a prisoner claims that he is innocent but has

defaulted his claim, the court nonetheless will hear

the merits as long as his “new evidence” was not

presented at his trial, even if it was available to him

at the time of that trial, and even if he elected not to

present the evidence for strategic reasons. But in

other courts, that exact—and common—scenario

would preclude the petitioner’s claim. These

alternative outcomes on an important question of

federal law require this Court’s intervention. S. Ct. R.

10. This Court’s intervention is necessary to establish

the appropriate scope of this exception and support

the finality of convictions.

18

A.

Three Courts of Appeals have

issued published opinions applying the “newly discovered”

standard

Three federal Courts of Appeals—the Third, Fifth,

and Eighth Circuits—have issued published opinions

holding that evidence must be newly discovered to

qualify as new evidence under Schlup.

In Sistrunk v. Rozum, 674 F.3d 181 (3d Cir. 2012),

the Third Circuit explained that “evidence that is

previously known, but only newly available does not

constitute newly discovered evidence.” Id. at 189

(quotation marks omitted). In that case, the court held

that a new letter from the petitioner’s cousin

recanting prior testimony and purporting to clear the

petitioner of murder was not new evidence, because

the petitioner had long known “the vital facts

underlying” the letter—the name of the killer and the

fact that his cousin had perjured himself. Id. at 189–

90. The Third Circuit applied the same definition of

“new evidence” to the petitioner’s attempt to toll the

statute of limitations on the basis of actual innocence

as to his claim that evidence was newly discovered

under 28 U.S.C. § 2244(d)(1)(D), which provides that

the limitations provision for a habeas claim begins to

run when “the factual predicate of the claim or claims

presented could have been discovered through the

19

exercise of due diligence.” Sistrunk, 674 F.3d at 188–

89, 191 (quoting 28 U.S.C. § 2244(d)(1)(D)).3

The Fifth Circuit, although “nominally declining to

weigh in” on the debate, “also appears to endorse this

‘newly discovered’ view.” Fontenot, 4 F.4th at 1032

(citing Hancock v. Davis, 906 F.3d 387 (5th Cir.

2018)). In Hancock, the Fifth Circuit recognized that

“there is a circuit split” on this question, then held

that evidence is not new “if it was always within the

reach of petitioner’s personal knowledge or reasonable

investigation.” 906 F.3d at 389–90 (cleaned up)

(“[T]hough we have not decided what affirmatively

constitutes ‘new’ evidence, we have explained what

does not.”); see also Moore v. Quarterman, 534 F.3d

454, 465 (5th Cir. 2008). In that case, the court held

that four affidavits initially obtained by law

enforcement shortly after a murder were not new

evidence, because the petitioner had not shown that

the affidavits were unavailable to him at trial.

Hancock, 906 F.3d at 388, 390. Thus, although the

affidavits allegedly contradicted the physical

descriptions of the shooter in the affiants’ trial

testimony and were never introduced, they

The Third Circuit recognizes a narrow exception to this

rule: “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.” Reeves, 897

F.3d at 164.

3

20

nonetheless were not “new evidence” under Schlup.

Id. at 388.

The Eighth Circuit also has recognized that “the

circuits have disagreed upon what the Supreme Court

meant by the ‘new’ part of ‘new reliable evidence,’”

and joined those holding that “evidence is ‘new’ only if

it was not available at the time of trial through the

exercise of due diligence.” Kidd v. Norman, 651 F.3d

947, 952 (8th Cir. 2011); see also Amrine v. Bowersox,

238 F.3d 1023, 1030 (8th Cir. 2001). In Kidd, the

petitioner challenged his conviction based on a variety

of evidence that was not introduced in his trial,

including evidence known to the police at the time and

other “evidence which could have been discovered and

presented by his original trial counsel.” 651 F.3d at

951. The Eighth Circuit held that the Schlup standard

required him to come “forward not only with new

reliable evidence which was not presented at trial, but

to come forward with new reliable evidence which was

not available at trial through the exercise of due

diligence,” id. at 953, thus joining this side of the

acknowledged circuit split, id. at 952–53.4

4 Further, the District of Columbia Circuit has ruled the

same way in an unpublished case, holding that two affidavits

gathered years after trial were not “new evidence” under Schlup

because the petitioner “could have gathered affidavits

supporting his alibi defense following his 1995 arrest or 1996

conviction.” Adams v. Middlebrooks, 640 Fed. Appx. 1, 4 (D.C.

Cir. 2016).

21

In short, consistent with the requirement that

actual-innocence claims meritorious enough to trigger

the Schlup gateway are both “rare” and

“extraordinary,” Schlup, 513 U.S. at 321, the Third,

Fifth, and Eighth Circuits have issued binding

precedent requiring petitioners to present newly

discovered evidence to support such a claim.

B.

Six Circuits instead apply the

“newly presented” standard

In contrast, six federal Courts of Appeals have

issued binding decisions defining “new evidence” as

any evidence that is newly presented—that is,

evidence not presented at trial regardless of whether

it was available for use at trial. Specifically, the

Second, Fourth, Sixth, Seventh, Ninth, and Tenth

Circuits have held that evidence is “new” if it was

never presented at trial.

The Second Circuit, considering evidence that

might have been considered “new” under either

standard, nevertheless defined “new evidence” under

Schlup as “evidence not heard by the jury.” Rivas v.

Fischer, 687 F.3d 514, 543 (2d Cir. 2012). The court

reached this conclusion while determining whether to

accept a post-trial affidavit of a forensic pathologist as

“new evidence” under Schlup, holding that this

evidence qualified because the jury had not seen it. Id.

at 543–44. And since that ruling, other federal Courts

of Appeals have recognized the Second Circuit as

having taken a side in the circuit split as a result. See

Fontenot, 4 F.4th at 1032.

22

In the decision below, the Fourth Circuit

recognized the “circuit split” on this question and

decided to “join [its] sister circuits who have held that

new evidence includes evidence that is newly

presented.” App. 37a. The court held that “the Schlup

standard is broad, encompassing both evidence that

became available only after trial and evidence

unavailable or excluded at trial.” App. 37a (quotation

marks omitted). The court thus held below that

evidence of Barber’s recantation is new, even though

the substance of Barber’s statement already was in

the record at the time of Wolfe’s guilty plea. App. 38a–

41a; cf. Sistrunk, 674 F.3d at 189 (rejecting the same

claim where petitioner similarly had long known the

vital facts contained in the new writing).

The Sixth Circuit also has long applied the newly

presented standard. See Souter v. Jones, 395 F.3d 577,

594 n.9 (6th Cir. 2005); Hubbard v. Rewerts, 98 F.4th

736, 743 (6th Cir. 2024) (“[T]his court has held that

evidence is ‘new’ for the purposes of the actualinnocence inquiry so long as it was not presented at

trial.”). In Souter, the court held that photographs of

a murder victim’s bloody clothes were new evidence,

even if they were available at trial, because the record

did not show that the photographs had ever in fact

been presented to the jury. 395 F.3d at 595 n.9. The

Sixth Circuit held that the petitioner thus had

“demonstrated a credible claim of actual innocence,”

and it remanded for the district court to consider the

merits of his constitutional claims. Id. at 602.

23

The Seventh Circuit likewise applies the newly

presented standard. See Gomez v. Jaimet, 350 F.3d

673, 679 (7th Cir. 2003); see also Patterson v. Adkins,

124 F.4th 1035, 1046 (7th Cir. 2025) (“[The petitioner]

can succeed under [the Schlup] standard only if he

produces reliable evidence that was not presented at

trial.” (cleaned up)). In Gomez, the petitioner sought

retrial based on statements that his co-defendants

and that he himself made—all evidence of which he

was aware, but that he did not introduce at trial. 350

F.3d at 679. The court concluded that this evidence

was “new,” because “[a]ll Schlup requires is that the

new evidence is reliable and that it was not presented

at trial.” Ibid. The court expressed particular concern

that “a requirement that new evidence be unknown to

the defense at the time of trial would operate as a

roadblock to the actual innocence gateway,” especially

when the underlying claim is one of ineffective

assistance of counsel based on counsel’s failure to

present evidence. Id. at 679–80. Thus, the Seventh

Circuit considered the defendant’s own statements

that were never offered at trial as new evidence

sufficient for the purposes of Schlup.

The Ninth Circuit has expressed skepticism that

the newly presented standard is correct, but it

nevertheless continues to apply that standard given

its earlier precedents. See Griffin v. Johnson, 350 F.3d

956, 962–63 (9th Cir. 2003) (citing Majoy v. Roe, 296

F.3d 770 (9th Cir. 2002), and Sistrunk v. Armenakis,

292 F.3d 669 (9th Cir. 2002) (en banc)); see also Gable

v. Williams, 49 F.4th 1315, 1322 (9th Cir. 2022)

24

(“‘New’ evidence under Schlup does not actually have

to be newly discovered.”). In Griffin, the court held

that the evidence on which petitioner relied, which

included hospital records to which he had access but

which he had declined to introduce at trial, was “new”

evidence. 350 F.3d at 962–63. The court recognized

that Justice O’Connor’s concurrence in Schlup

“clearly employs the term ‘newly discovered’” and

“could constitute Schlup’s holding” because Justice

O’Connor formed part of the five-Justice majority. Id.

at 962. But based on its own circuit precedents, the

Ninth Circuit instead applied the “newly presented”

standard. Id. at 963. Accordingly, even though the

petitioner had pleaded guilty and the medical records

in question “were allegedly in [his] possession before

trial,” the court held that they constituted new

evidence of actual innocence under Schlup because

“he never offered this evidence prior to accepting the

plea bargain.” Ibid.

The Tenth Circuit also has recognized the “circuit

split” on whether Schlup’s new evidence standard

requires “newly discovered” evidence or merely “newly

presented” evidence, and it expressly joined the

“newly presented” side of that split. Fontenot, 4 F.4th

at 1032 (describing the Second, Sixth, Seventh, and

Ninth Circuits on one side of the split, and the Third,

Fifth, and Eighth Circuits on the other side). The

court observed that the Fontenot case required it to

“pick a side” of the split, and that it chose “newly

presented” for two reasons: first, it believed that the

actual-innocence gateway “works to remove

25

procedural obstacles to habeas relief in a manner that

does not depend on satisfying requirements for

standard equitable exceptions to those obstacles,” and

second, because “adding diligence to the new evidence

requirement does nothing to further its purpose,”

which the court understood as being “to lend

‘credibility’ to the claim of innocence by showing it is

not based solely on evidence a jury has already found

sufficient to convict the petitioner.” Id. at 1032–33.

Six federal Courts of Appeals have thus issued

binding decisions holding that Schlup requires only

that the new evidence be newly presented, in contrast

to the three federal Courts of Appeals that have held

that Schlup requires evidence to be newly discovered.

This broad set of “decision[s] in conflict” is precisely

the type of split that can be settled only by this Court’s

intervention. Rule 10(a). This Court should grant the

petition for this reason alone.

But even further, another wrinkle has arisen

among courts applying the “newly presented”

standard that highlights the need for this Court’s

clarification. Some of the courts on this side of the

split disagree on how to apply the “newly presented”

standard when, as here, the petitioner pleaded guilty.

Indeed, judges have observed that “there is an

inherent paradox in the notion that someone who has

stood in open court and declared, ‘I am guilty,’ may

turn around years later and claim that he deserves to

pass through the actual innocence gateway,” Weeks,

119 F.3d at 1355 (Loken, J., concurring), and that

there are no “clear guidelines as to the pleadings or

26

preliminary showing necessary to trigger an actualinnocence inquiry in a guilty plea conviction case,”

United States v. Torres, 163 F.3d 909, 914 (5th Cir.

1999) (Dennis, J., concurring).

Given this paradox, it is unsurprising that the

courts on the “newly presented” side of the circuit split

disagree about how to apply that standard to guilty

pleas. For example, the Tenth Circuit has stated that

the gateway actual-innocence “standard is even more

demanding for a habeas applicant who, like [the

petitioner], pleads guilty to the crimes for which he

stands convicted.” Slinkard v. McCollum, 675 Fed.

Appx. 851, 855 n.3 (10th Cir. 2017); see also Blanc v.

United States, No. 17-12394-A, 2017 WL 11812993, at

*2, *4 (11th Cir. July 12, 2017) (unpublished order)

(suggesting that it is impossible for someone to show

factual innocence after pleading guilty and offering “a

sworn admission to a factual proffer” that establishes

the elements of the offense). But the Ninth Circuit

concluded instead that evidence in the defendant’s

possession at the time of a guilty plea was new

because the defendant never presented it in court.

Griffin, 350 F.3d at 963. Given the inherent tension

between actual-innocence claims and the finality

generally accorded to guilty pleas, it is little wonder

that the Courts of Appeals on the newly presented

side of the split have struggled with how to apply

Schlup in the guilty-plea context.

Put simply, the Courts of Appeals are deeply

divided on how to apply Schlup. They openly recognize

a circuit split on the question whether evidence must

27

be newly discovered or merely newly presented. And

the courts’ confusion at Schlup’s application is further

highlighted by the additional disagreement on how to

apply the latter standard to guilty pleas. This Court

should settle the open split and provide clarity on the

proper meaning of “new evidence” within the Schlup

actual-innocence gateway.

II.

The question presented is important

and recurring

This acknowledged conflict among the Courts of

Appeals also concerns an “important matter.” Sup. Ct.

R. 10(a). Federal habeas review itself implicates

sensitive questions of federalism, intruding as it does

on “the States’ powerful and legitimate interest in

punishing the guilty,” Brown v. Davenport, 596 U.S.

118, 132 (2022) (quotation marks omitted), as well as

“systemic interests in finality, comity, and

conservation of judicial resources,” Schlup, 513 U.S.

at 322. The “[s]erial relitigation of final convictions

undermines the finality that ‘is essential to both the

retributive and deterrent functions of criminal law.’”

Shinn, 596 U.S. at 391 (quoting Calderon, 523 U.S. at

555). Indeed, the finality of state convictions is an

“important value[ ],” Stutson v. United States, 516

U.S. 193, 197 (1996), that serves “goals important to

our system of criminal justice and to federalism,”

Kuhlmann v. Wilson, 477 U.S. 436, 453 n.16 (1986).

Nowhere is this finality more important than in

the context of guilty pleas. See Bousley v. United

States, 523 U.S. 614, 621 (1998) (“[T]he concern with

28

finality served by the limitation on collateral attack

has special force with respect to convictions based on

guilty pleas.” (quotation marks omitted)). Indeed,

“[e]very inroad on the concept of finality undermines

confidence in the integrity of” judicial procedures, and

“by increasing the volume of judicial work, inevitably

delays and impairs the orderly administration of

justice.” United States v. Timmreck, 441 U.S. 780, 784

(1979) (quotation marks omitted). This consequence

“is greatest” in the context of guilty pleas “because the

vast majority of criminal convictions result from such

pleas.” Ibid.

This Court has “unequivocally recognized the

State’s legitimate interest in encouraging the entry of

guilty pleas and in facilitating plea bargaining, a

process mutually beneficial to both the defendant and

the State.” Corbitt v. New Jersey, 439 U.S. 212, 222

(1978). But a rule permitting petitioners to

circumvent their guilty pleas using evidence they

possessed at the time of the plea jeopardizes the pleabargaining system, with all its attendant benefits for

both States and defendants. See Premo v. Moore, 562

U.S. 115, 132 (2011) (“The plea process brings to the

criminal justice system a stability and a certainty that

must not be undermined by the prospect of collateral

challenges in cases not only where witnesses and

evidence have disappeared, but also in cases where

witnesses and evidence were not presented in the first

place.”).

And because “[s]olemn declarations in open court

carry a strong presumption of verity,” Blackledge v.

29

Allison, 431 U.S. 63, 74 (1977), “the States’ powerful

and legitimate interest in punishing the guilty,”

Davenport, 596 U.S. at 132, reaches its zenith when

the defendant has publicly confessed his guilt in open

court. See Samia v. United States, 599 U.S. 635, 655

(2023) (“[C]onfessions are essential to society’s

compelling interest in finding, convicting, and

punishing those who violate the law.” (quotation

marks omitted)).

As this Court noted in Schlup, these strong

governmental interests are in tension with the

“individual interest in doing justice in the

extraordinary case.” Schlup, 513 U.S. at 322

(quotation marks omitted). Nowhere is this tension

more pronounced than in the federal actual-innocence

inquiry, which if successful, overcomes failure to

comply with the very state rules that serve the

interests of finality, comity, and conservation of

resources. Cases like this one thus simultaneously

implicate substantial state interests and substantial

individual interests.

Moreover, the question regarding the proper

actual-innocence standard is frequently recurring. In

2024, inmates filed over 13,000 habeas petitions in

federal district courts.5 Because assertions of actual

5 U.S. Courts, Statistical Tables for the Federal Judiciary –

December 2024, Table C-2, U.S. District Courts––Civil Cases

Commenced, by Basis of Jurisdiction and Nature of Suit, During

the 12-Month Periods Ending December 31, 2023 and 2024 (Dec.

31, 2024), https://tinyurl.com/mr426zsv.

30

innocence provide a path around both procedural

default and the statute of limitations, such arguments

often form part of a habeas claim. Indeed, that nearly

every Court of Appeals has wrestled with how to

define “new evidence” under the Schlup actualinnocence gateway demonstrates how regularly this

problem arises—in fact, some circuits have addressed

it multiple times. See, e.g., Griffin, 350 F.3d at 962

(“We might be compelled to speculate further had our

court not already stated that actual innocence claims

require only ‘newly presented’ evidence.”). And the

sheer prevalence of guilty pleas ensures that the

question of how to handle actual-innocence claims in

that context will continue to arise. 6

The question presented is important and

recurring, and it implicates deep and conflicting

interests. Yet in thirty years of considering Schlup,

the Courts of Appeals have reached widely differing

answers to that question. This Court should resolve

that conflict.

III.

The Fourth Circuit is incorrect

This Court also should grant review because the

ruling below was incorrect and falls on the wrong side

of the acknowledged circuit split. See 22, supra. In

erroneously holding that Wolfe demonstrated his

6 Last year in federal court alone, 69,405 defendants were

convicted of crimes; of those, 67,902 pleaded guilty. See U.S.

Courts, U.S. District Courts — Judicial Business 2024, Criminal

Filings, https://tinyurl.com/33ews8fp (last accessed Dec. 3, 2025).

31

actual innocence using evidence that was not newly

discovered, the Fourth Circuit applied the wrong

definition of new evidence under Schlup. This case

thus presents an ideal opportunity for the Court to

resolve this split.

The decision below erred by holding that an actualinnocence showing requires only newly presented

evidence, regardless of whether that evidence was

available or discoverable at earlier stages of the case.

To protect the important interest in finality and give

appropriate effect to state-court judgments, this Court

should grant the petition and instead hold that Schlup

requires habeas petitioners to present newly

discovered evidence of innocence—that is, evidence

that was

previously unavailable and

not

discoverable—to establish actual innocence.

The “newly discovered” standard comports with

the nature of habeas relief. A state jury trial is not

“merely a ‘tryout on the road’ to federal habeas relief.”

Shinn, 596 U.S. at 377 (quotation marks omitted).

Rather, the state “trial is the paramount event for

determining the guilt or innocence of the defendant,”

and “[f ]ederal courts are not forums in which to

relitigate state trials.” Herrera v. Collins, 506 U.S.

390, 401, 416 (1993) (quotation marks omitted). This

Court has an “overarching responsibility to ensure

that state-court judgments are accorded the finality

and respect necessary to preserve the integrity of legal

proceedings within our system of federalism.” Shinn,

596 U.S. at 387 (quotation marks omitted). The

“newly discovered” standard, rather than the Fourth

32

Circuit’s “newly presented” one, aligns with that

interest.

It would be contrary to these principles to permit

defendants to make a tactical choice to refrain from

presenting certain evidence—including based on a

desire to avoid impeachment, rebuttal, or the

presentation of conflicting accounts—only to rely on

that same evidence in a later actual-innocence

argument to overcome state procedural bars. Yet that

is exactly what the “newly presented” standard

allows: petitioners can simply fail to follow up on leads

during their trial preparation—or even be aware of

evidence and make a strategic choice not to introduce

it—and then rely on that evidence years later to seek

retrial or release.

The “newly discovered” standard also better

comports with Schlup. Indeed, Justice O’Connor,

whose concurrence was necessary to create the Schlup

majority, understood Schlup to require “newly

discovered evidence.” 513 U.S. at 332 (O’Connor, J.,

concurring); see also Griffin, 350 F.3d at 962

(observing that, under Marks v. United States, 430

U.S. 188, 193 (1977), Justice O’Connor’s “opinion

could constitute Schlup’s holding”). And the Schlup

majority opinion counseled that new reliable

“evidence is obviously unavailable in the vast majority

of cases,” that “claims of actual innocence are rarely

successful,” and that the exception is for “the

extraordinary case.” 513 U.S. at 324. That

understanding would not comport with the “newly

presented” standard, under which petitioners

33

routinely rely on available evidence they failed or

declined to enter at trial—hardly extraordinary cases.

Besides, the “newly presented” standard allows for

evidence that is not new at all. It allows petitioners to

rely on long-existing evidence, and frequently

evidence that petitioners knew about and simply

chose not to use at trial. The “newly discovered”

standard requires evidence that actually is new for

the petitioner to reach Schlup’s actual-innocence

gateway.

Moreover, the “newly presented” standard

comparatively undermines one of the core purposes of

the actual innocence exception: avoiding a

“miscarriage of justice.” Schlup, 513 U.S. at 324.

Justice does not favor allowing petitioners to sleep on

their rights and avoid raising evidence until witnesses

have died, memories have faded, and the State’s

evidence is too stale for a retrial. In contrast, the

“newly discovered” standard helps ensure credibility

and accuracy, important components of safeguarding

justice: when a defendant knows of evidence and fails

to present it, that suggests that there was a reason

not to present it.

The newly presented rule additionally rewards

defendants for “sandba[gging] state courts,” Shinn,

596 U.S. at 391, by allowing them to choose one

evidentiary strategy at trial and reserve another for

later habeas relief. This perverse incentive is

especially apparent in the context of guilty pleas, as

here, when defendants have no incentive to put any

exculpatory evidence in the initial record. Under some

34

articulations of the “newly presented” side of the

circuit split, the Ninth Circuit’s for example, any

evidence the defendant actually possessed and could

have presented at trial—but did not due to the guilty

plea—is categorized as “new” if the defendant later

seeks to overcome his guilty plea through habeas. See

Griffin, 350 F.3d at 963. But “[i]t is well settled that a

voluntary and intelligent plea of guilty made by an

accused person, who has been advised by competent

counsel, may not be collaterally attacked.” Bousley,

523 U.S. at 621 (quotation marks omitted). Thus “a

potential incongruity” is inherent “between the

purpose of the actual innocence gateway announced in

Schlup and its application to cases involving guilty (or

no contest) pleas” under the newly presented rule.

Smith v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir.

2007) (en banc).

Nor are the arguments in favor of the “newly

presented” rule persuasive. The Tenth Circuit

concluded that ensuring diligence does not further the

purpose of the actual-innocence exception. Fontenot, 4

F.4th at 1032–33. But that conclusion is incorrect:

discouraging gamesmanship and eliminating the

“newly presented” standard’s perverse incentives help

ensure accuracy in exonerations to advance justice, to

say nothing of alleviating the resource constraints on

States and courts that result in further delay in

releasing prisoners who are in fact actually innocent.

Likewise, the Seventh Circuit’s concern that

petitioners with ineffective-assistance-of-counsel

claims would face a roadblock under the “newly

35

discovered” standard, Gomez, 350 F.3d at 679–80, was

easily addressed by the Third Circuit when it provided

a caveat to its “newly discovered” rule: “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,” Reeves, 897 F.3d at 164. In

sum, the problems with the “newly presented”

standard outweigh the arguments in its favor.

The Fourth Circuit’s holding here demonstrates

these problems. The Fourth Circuit held that Barber’s

declaration was new evidence even though Wolfe had

known of its contents for years. App. 38a–41a. In so

doing, the court reopened a years-old murder

conviction while renouncing its earlier holding that

whether Barber would testify was “speculative,”

concluding instead that to accept that holding “would

be dissonant with the ‘broad definition of “new”

evidence’ contemplated by the Schlup standard.” App.

41a (quoting Royal v. Taylor, 188 F.3d 239, 244 (4th

Cir. 1999)); see Wolfe v. Clarke, 718 F.3d 277, 289 (4th

Cir. 2013). The problems with this conclusion are

apparent. First, all the information in Barber’s

declaration was known to Wolfe or otherwise

discoverable during his re-trial, yet the court

permitted its use to attack Wolfe’s conviction. Second,

Barber’s decades-long vacillation on whether to testify

reveals the unreliability of the newly presented

standard, as well as its vulnerability to

gamesmanship depending on the stated preferences of

36

any particular witness at any given time. This

unreliability, in turn, substantially harms the

interests of States and of the families of murder

victims, when a killer might wait years for more

favorable circumstances under which to challenge his

conviction based on the changed preferences of a

former co-conspirator.

And these problems are even more troubling

where, as here, the petitioner has confessed in detail

to the crime. It is bad enough that the court below held

that Wolfe had shown evidence of his “actual

innocence,” App. 48a, without appropriately weighing

Wolfe’s guilty plea.7 Ibid. But the court ignored that

Wolfe confessed that he and Barber planned to

murder Petrole and that he forgave Barber’s drug

debt in exchange for Barber carrying out the robbery

and murder. See [CA.JA1418–19]. In short, the court

believed Wolfe’s position that he could prove in court

7 The Fourth Circuit ostensibly considered Wolfe’s guilty plea

but quickly discounted it, instead accepting at face value Wolfe’s

argument that his plea was involuntary. App. 46a–47a. That

same guilty plea, which he described as “actually the hardest

thing I’ve had to do because it means I have to admit what I did”

and that he was giving because he “want[ed] [the family] to know

the truth,” [CA.JA1420–21], was delivered while he possessed a

recording of the meeting between the investigators and Barber

that forms the basis of his due process claim. See [CA.JA332].

Wolfe chose to plead guilty anyway. Notably, Wolfe did not

challenge the voluntariness of the handwritten confession that

he offered in court, nor did the Fourth Circuit address that

confession. This confession, standing alone, undercuts the

Fourth Circuit’s finding that no reasonable juror would have

voted to convict Wolfe based on all the available evidence.

37

that he is innocent, despite Wolfe’s own sworn

statement in court that he is not innocent.

The “newly discovered” standard best serves the

purposes of habeas relief. This Court should grant this

petition for a writ of certiorari to settle the

acknowledged circuit split, provide clarity to federal

courts on this open question, and correct the Fourth

Circuit’s error.

IV.

This case is an ideal vehicle for

resolving the question presented

This case presents the Court with an ideal vehicle

for resolving the question presented. Wolfe’s ability to

demonstrate actual innocence—and to reach the

merits of his constitutional claim—turns directly on

whether he has presented new evidence. App. 36a–

37a (“The heart of their dispute is whether the ‘new’

evidence required under Schlup includes only newly

discovered evidence that was not available at the time

of trial, or broadly encompasses all evidence that was

not presented to the fact-finder during trial, i.e., newly

presented evidence.” (quotation marks omitted)). That

question is the subject of a circuit split, and it is one

that the Fourth Circuit below decided incorrectly.

The circuit split presented here is outcomedeterminative. If this Court were to apply the “newly

discovered” standard rather than the “newly

presented” one adopted below, Wolfe would have no

new evidence with which to try to reach the threshold,

and procedural default and the statute of limitations

38

would defeat his entire claim. Under the “newly

presented” standard, however, Wolfe would receive a

second bite at the apple and could once again

challenge his conviction. This would be so even though

he has long known about, and made decisions around,

his co-conspirator Barber’s shifting testimony and

affirmatively presented his own impassioned

confession and apology in pleading guilty, making him

an even worse candidate to argue that he instead is

actually innocent.

Finally, this split is ingrained and mature. The

Courts of Appeals have been wrestling with Schlup for

thirty years. Nine federal Courts of Appeals have

taken published sides on this split, the Courts of

Appeals openly acknowledge that the split exists, and

the decades-old divide is intractable. The question

presented warrants this Court’s review.

CONCLUSION

This Court should grant the petition.

39

December 4, 2025

Respectfully submitted,

JASON S. MIYARES

Attorney General of Virginia

THEOPHANI K. STAMOS

Deputy Attorney General

DONALD E. JEFFREY, III

Senior Assistant Attorney

General

LIAM A. CURRY

Assistant Attorney General

KEVIN M. GALLAGHER

Solicitor General

Counsel of Record

GRAHAM K. BRYANT

Principal Deputy Solicitor

General

RICK W. EBERSTADT

MEREDITH L. BAKER

Deputy Solicitors General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

kgallagher@oag.state.va.us

Counsel for Petitioner