Opposition Brief — Chadwick Dotson, Director, Virginia Department of Corrections, Petitioner v. Justin Michael Wolfe

No. 25-664

In the Supreme Court of the United States

CHADWICK DOTSON, PETITIONER

v.

JUSTIN MICHAEL WOLFE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SCOTT M. ABELES

GENE ROSSI

CARLTON FIELDS, P.A.

1025 Thomas Jefferson

Street, N.W.

Washington, DC 20007

RACHEL A. OOSTENDORP

CARLTON FIELDS, P.A.

700 N.W. 1st Avenue

Miami, FL 33136

MARVIN D. MILLER

LAW OFFICES OF

MARVIN D. MILLER

1203 Duke Street

Alexandria, VA 22314

KANNON K. SHANMUGAM

WILLIAM T. MARKS

Counsel of Record

JAMES DURLING

J. COREY SCHIFF

KRISTA A. STAPLEFORD

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

wmarks@paulweiss.com

MEGHAN SHAPIRO

LAW OFFICE OF

MEGHAN SHAPIRO

421 King Street, Suite 505

Alexandria, VA 22314

QUESTION PRESENTED

Whether exculpatory evidence qualifies as “new” for

purposes of the actual-innocence gateway to federal habeas review where the evidence was previously unavailable due to prosecutorial misconduct.

(I)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 2

A. Background ........................................................................ 3

B. Respondent’s state prosecution....................................... 5

C. Respondent’s first habeas petition.................................. 6

D. Respondent’s state reprosecution ................................. 11

E. Respondent’s second habeas petition ........................... 12

Argument ....................................................................................... 14

A. The decision below does not squarely implicate

the conflict identified by the petition ............................ 15

B. The decision below is correct ......................................... 20

C. The question presented does not warrant

the Court’s review in this case ....................................... 24

Conclusion ...................................................................................... 27

TABLE OF AUTHORITIES

Cases:

Adams v. Middlebrooks,

640 Fed. Appx. 1 (D.C. Cir. 2016) ............................. 17, 18

Amrine v. Bowersox, 238 F.3d 1023 (8th Cir. 2001)

cert. denied, 534 U.S. 963 (2001) ............................... 17, 18

Bousley v. United States, 523 U.S. 614 (1998) ..................... 5

Brady v. Maryland, 373 U.S. 83 (1963) ................................ 8

Brady v. United States, 397 U.S. 742 (1970) ...................... 25

Class v. United States, 583 U.S. 174 (2018) ........................ 12

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

cert. denied, 142 S. Ct. 2777 (2022) ................................. 21

Fratta v. Davis, 889 F.3d 225 (5th Cir. 2018),

cert. denied, 586 U.S. 1080 (2019) ................................... 19

Giglio v. United States, 405 U.S. 150 (1972) ........................ 8

(III)

IV

Page

Cases—continued:

Gomez v. Jaimet, 350 F.3d 673 (7th Cir. 2003) .................. 17

Hancock v. Davis, 906 F.3d 387 (5th Cir. 2018),

cert. denied, 587 U.S. 1063 (2019) ............................. 16, 19

House v. Bell, 547 U.S. 518 (2006) ............................. 4, 22, 23

Izumi Seimitsu Kogyo Kabushiki Kaisha

v. U.S. Philips Corp., 510 U.S. 27 (1993) ....................... 24

Jimerson v. Payne, 957 F.3d 916 (8th Cir. 2020) ........ 17, 18

Kidd v. Norman, 651 F.3d 947 (8th Cir. 2011),

cert. denied, 568 U.S. 838 (2012) ............................... 17, 18

McQuiggin v. Perkins,

569 U.S. 383 (2013) ............................................ 5, 18, 22, 23

Mendoza v. Lumpkin, No. 21-20501,

2022 WL 3657188 (5th Cir. Aug. 25, 2022)............... 16, 17

Moore v. Quarterman, 534 F.3d 454 (5th Cir. 2008) ......... 19

Napue v. Illinois, 360 U.S. 264 (1959)................................... 8

Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir. 2018),

cert. denied, 587 U.S. 1070 (2019) ............................. 16, 19

Schlup v. Delo, 513 U.S. 298 (1995) ......... 2, 4, 8, 9, 13, 21-25

Shinn v. Ramirez, 596 U.S. 366 (2022) ................................. 4

Sistrunk v. Rozum, 674 F.3d 181 (3d Cir. 2012) ................ 19

Tyler v. Davis, 768 Fed. Appx. 264 (5th Cir. 2019) ........... 17

Williams v. Taylor, 529 U.S. 362 (2000) ............................... 3

Constitution, statutes, and rules:

U.S. Const. Amend. V ................................2, 10, 14, 20, 22, 26

28 U.S.C. 1254(1) ...................................................................... 1

28 U.S.C. 2244(d)(1) ........................................................... 4, 12

28 U.S.C. 2244(d)(1)(D) ......................................................... 19

28 U.S.C. 2254 ........................................................................... 3

Sup. Ct. R. 10 .................................................................... 24, 26

Sup. Ct. R. 14.1(a) .................................................................. 24

In the Supreme Court of the United States

No. 25-664

CHADWICK DOTSON, PETITIONER

v.

JUSTIN MICHAEL WOLFE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

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

is reported at 144 F.4th 218. The opinions of the district

court (Pet. App. 49a-56a, 57a-76a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 7, 2025. On October 1, 2025, the Chief Justice extended the time within which to file a petition for a writ of

certiorari to and including December 4, 2025. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

This case arises from an extraordinary course of prosecutorial misconduct that several judges have described

as “egregious” and “abhorrent to the judicial process.”

Pet. App. 2a, 45a, 47a-48a (citations omitted). Twenty-five

years ago, the Commonwealth of Virginia prosecuted respondent for capital murder based on testimony that it

had coerced from its key witness by threatening him with

the death penalty. When the witness recanted his fabricated testimony, both the district court and the court of

appeals held that respondent was entitled to habeas relief.

But rather than release respondent or provide him with a

fair trial, the Commonwealth again coerced the witness

by threat of death penalty—this time into withdrawing his

recantation and invoking his Fifth Amendment right not

to testify in any retrial of respondent. Lacking that crucial evidence and faced with additional capital and lifesentence-eligible charges beyond the ones the Commonwealth initially brought, respondent pleaded guilty. As

the court of appeals explained, “the Commonwealth has

done everything in its power” over the course of this case

“to ensure [respondent] dies in prison, eschewing the

Constitution, ethical strictures, and [respondent’s] own

repeated and consistent assertions of actual innocence.”

Id. at 3a.

The petition all but ignores that history and context.

According to petitioner, this case presents a straightforward legal question about the type of “new” evidence necessary to satisfy the actual-innocence gateway to habeas

review of a procedurally defaulted claim, first recognized

in Schlup v. Delo, 513 U.S. 298 (1995). But as the court

below made clear, “the question in this case cannot be resolved just by parsing the nature of the Schlup standard”;

3

it turns on the case’s unique “context” in which exculpatory evidence was deliberately made unavailable to respondent by prosecutorial misconduct. Pet. App. 37a.

Petitioner offers no persuasive reason why the Court

should grant review. Petitioner claims that this case implicates a longstanding conflict among the courts of appeals about the standard to determine whether evidence

is “new” for purposes of the actual-innocence gateway.

But there is no conflict among the lower courts on how to

apply the “new” evidence standard where the evidence

was made unavailable due to prosecutorial misconduct.

And any purported conflict on the broader legal standard

would not warrant review in any event given the underdeveloped state of the doctrine. Petitioner is also incorrect

on the merits. His proposed standard for “new” evidence

contravenes the basic rationale for the actual-innocence

gateway. And his primary argument in support of that

standard—a concern about “sandbagging”—makes little

sense in general and is particularly incoherent when prosecutorial misconduct made the evidence unavailable. Nor

has petitioner shown that the question presented is especially important or that this case is a good vehicle to resolve it. Petitioner himself suggests that the actual-innocence gateway is often litigated, which safely allows the

Court to await a future petition presenting the question

unencumbered by the unique context of this case. The petition for certiorari should be denied.

A. Background

Federal law has long allowed a state prisoner to challenge his conviction by filing a habeas petition in federal

court. See 28 U.S.C. 2254; Williams v. Taylor, 529 U.S.

362, 374-375 (2000). Federal habeas serves a critical role

by guarding against “extreme malfunctions in the state

criminal justice systems,” but it is also circumscribed by

4

various statutory and court-fashioned procedural limitations. Shinn v. Ramirez, 596 U.S. 366, 377 (2022) (internal

quotation marks and citation omitted). As is relevant

here, the Antiterrorism and Effective Death Penalty Act

of 1996 provides a one-year statute of limitations for filing

a federal habeas petition. 28 U.S.C. 2244(d)(1). In addition, under the doctrine of “procedural default,” federal

courts “generally decline to hear any federal claim that

was not presented to the state courts consistent with the

State’s own procedural rules.” Shinn, 596 U.S. at 378 (internal quotation marks, citation, and alterations omitted).

Although those requirements serve important “principles of comity and finality,” the Court has recognized that

they sometimes must “yield to the imperative of correcting a fundamentally unjust incarceration.” Schlup, 513

U.S. at 320-321 (internal quotation marks and citation

omitted). In Schlup, the Court held that a sufficient showing of “actual innocence” may serve as a “gateway”

through which a federal habeas petitioner may “pass” to

have a procedurally defaulted constitutional claim “considered on the merits.” Id. at 314-315 (internal quotation

marks and citation omitted). Such a showing of innocence

is “not itself a constitutional claim”; it is a procedural basis

for having a procedurally defaulted constitutional claim

considered in habeas. Ibid. (internal quotation marks and

citation omitted).

To make a sufficient threshold showing of actual innocence under Schlup, a prisoner must offer “new reliable

evidence” that was “not presented” in the original criminal case in state court, and he must show that it is “more

likely than not that no reasonable juror would have convicted him in the light of th[at] new evidence.” 513 U.S. at

324, 327; accord House v. Bell, 547 U.S. 518, 536-537

(2006). The Court has subsequently held that the same

5

standard applies in the context of guilty pleas, see Bousley v. United States, 523 U.S. 614, 623-624 (1998), and that

it may excuse a prisoner’s failure to satisfy the one-year

statute of limitations for filing a federal habeas petition,

see McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

B. Respondent’s State Prosecution

In March 2001, Daniel Petrole was murdered outside

of his townhome near Bristow, Virginia. At the time, Petrole supplied high-grade marijuana to drug dealers in

Northern Virginia. A few days later, police received a tip

that Owen Barber IV, a marijuana dealer in the area, had

murdered Petrole. When questioned by police, Barber initially denied his involvement, but federal authorities later

arrested him. While in custody, Barber confessed to the

crime, but he claimed that respondent—a teenage marijuana dealer who bought his supply from Petrole—had

paid Barber to carry out the murder. See 565 F.3d 140,

144-146 (4th Cir. 2009).

The Commonwealth charged respondent with the capital offense of hiring Barber to kill Petrole, using a firearm

in committing a felony, and conspiring to distribute marijuana. At trial, Barber was the prosecution’s “key witness” and the “only witness to provide any direct evidence” regarding respondent’s involvement in Petrole’s

death. 565 F.3d at 144. Barber testified that respondent

had accrued significant debt purchasing marijuana from

Petrole and that Barber and respondent together planned

the murder. In exchange for murdering Petrole, respondent purportedly promised Barber $10,000, gifted him a

half-pound of marijuana, and forgave Barber’s debts.

Barber also testified that one of their mutual friends, J.R.

Martin, declined Barber’s invitation to participate in the

crime but allowed Barber to use Martin’s car to follow Pe-

6

trole home. Martin testified at trial that, when he told respondent that he knew about the murder, respondent forgave a $600 debt and supplied him with discounted marijuana. See id. at 144-146.

Respondent also testified in his own defense. While he

admitted to selling marijuana, he denied any involvement

in Petrole’s murder. Respondent explained that Barber

may have testified falsely because of respondent’s refusal

to send Barber money when Barber was evading the police and because of respondent’s recent sexual relationship with Barber’s girlfriend. The jury found respondent

guilty on all three charges, and the trial court accepted

their recommendation of a death sentence. See 565 F.3d

at 146-149.

C. Respondent’s First Habeas Petition

1. After exhausting his available state post-conviction

remedies, respondent filed a habeas petition in federal

court. Weeks after the petition was filed, Barber signed

an affidavit recanting his prior testimony as fabricated

and attesting that respondent “had nothing to do” with

Petrole’s murder. See C.A. App. 1162-1174.

Barber’s affidavit also recounted the Commonwealth’s

role in securing his prior false testimony. Barber stated

that two Commonwealth detectives (Sam Newsome and

Brenda Walburn) attempted to interview Barber without

counsel. Barber stated that Detective Newsome told him

that the Commonwealth “already knew” that respondent

hired him to kill Petrole, and that either he or respondent

“would end up telling the story and the other one would

end up with capital murder.” C.A. App. 1169. Barber attested that the detectives “were the first to mention” respondent’s purported role to Barber and that he “did not

suggest that story.” Ibid.

7

Barber further stated that, after his arraignment, Detectives Newsome and Walburn “repeatedly” told him

that “the prosecutors knew that [respondent] had hired

[him] to kill Danny Petrole, had linked [his] gun to the killing, and would pursue capital murder against either [respondent] or [him].” C.A. App. 1169. Those overtures

were made outside of formal interviews and without Barber’s counsel present. Barber’s counsel later told Barber

that either Barber or respondent “would certainly be convicted of capital murder,” and he advised Barber

“strongly and repeatedly to implicate” respondent. Id. at

1169-1170.

Faced with the choice between falsely testifying or

facing the death penalty, Barber attested that he agreed

to cooperate by telling the Commonwealth “what [it]

wanted to hear”: namely, that respondent hired him to

kill Petrole. C.A. App. 1172. In April 2001, Barber stated

that he met with Detectives Newsome and Walburn and

“made up a story” based partially on the true events of

Petrole’s murder but with “lies woven in to turn the story

into a murder for hire.” Ibid. In exchange, Barber signed

a plea agreement for non-capital murder and secured a

further “oral agreement” under which the Commonwealth would recommend leniency in sentencing based on

Barber’s “cooperation.” Id. at 1172-1173. Barber ultimately received 60 years in prison, 22 of which were suspended. Pet. App. 59a.

According to Barber, the Commonwealth then worked

to ensure that Barber’s fabricated testimony would hold

up in court. Barber attested that, against his wishes, the

prosecution arranged for meetings between Barber and

Martin to allow them to “coordinate [their] testimony,”

with Barber “t[elling] the false story” and Martin “correct[ing] points with which he disagreed.” C.A. App. 1173.

8

While Barber stated that he generally “deferred” to Martin, an attorney for the Commonwealth, Richard Conway,

would occasionally “step[] in and suggest[] a way” to reconcile their disparate accounts. Id. at 1173.

2. The day after Barber signed his affidavit, respondent amended his federal habeas petition. The amended

petition included Barber’s affidavit and provided additional affidavits corroborating Barber’s account. For example, Barber’s former cellmate attested that, in 2003,

Barber admitted that he testified falsely against respondent at trial. See C.A. App. 1132-1138. Likewise, Barber’s

former roommate and the supplier of the murder weapon

explained that he told Commonwealth prosecutors in a

formal interview before respondent’s trial that Barber

had “confessed to * * * act[ing] alone”—an interview

that the roommate believed had been recorded. Id. at

1140. In addition, a private investigator hired on respondent’s behalf submitted an affidavit detailing his conversations with various witnesses, which generally corroborated Barber’s affidavit and indicated that the Commonwealth had recordings of exculpatory witness interviews.

See id. at 1142-1152.

Respondent’s amended habeas petition raised three

arguments relevant to subsequent proceedings. First, respondent raised his actual innocence as a procedural

“gateway” under Schlup for the adjudication of his constitutional claims, which he had not properly raised in state

court. Second, he argued that the prosecution violated

Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose exculpatory evidence, including Barber’s former

roommate’s statements and evidence that Barber’s story

had changed over time. Finally, respondent claimed that

the prosecution had violated Napue v. Illinois, 360 U.S.

264 (1959), and Giglio v. United States, 405 U.S. 150

9

(1972), by knowingly presenting false testimony. See Pet.

App. 11a-12a.

In April 2006, Barber sought to recant his sworn statements in an unsworn, handwritten letter. In response, respondent requested an evidentiary hearing to assess Barber’s credibility. The district court denied the amended

habeas petition without holding a hearing. See Civ. No.

05-432, 2008 WL 371117 (E.D. Va. Feb. 8, 2008). The

court of appeals reversed and remanded, holding that the

district court failed appropriately to address respondent’s

Schlup argument. See 565 F.3d at 155-156, 163-172.

3. On remand, the district court authorized discovery

and conducted an evidentiary hearing. Barber testified

under oath consistently with his affidavit, including that

Commonwealth prosecutors made clear what Barber

“h[ad] * * * to say” to avoid “getting the chair.” Pet.

App. 13a-14a, 17a. Following the evidentiary hearing, the

district court found, as relevant here, that Barber’s recantation was “credible”; that the prosecution “coordinated

witness testimony through a series of joint meetings” with

Barber and other witnesses; that the prosecution “failed

to disclose the tapes of multiple recorded meetings with

key witnesses” because it believed that disclosure might

enable counsel “to fabricate a defense around” the provided material; and that the prosecution “withheld evidence of Barber’s personal dealings” with Petrole, including claims that Barber owed Petrole money and that Petrole “had a hit out on Barber.” 819 F. Supp. 2d 538, 547549, 566 n.24 (E.D. Va. 2011).

The district court also found that the prosecution had

failed to disclose a report authored by Detective Newsome “describ[ing] his interactions with Barber during his

initial arrest and transportation.” Id. at 548 n.8. In that

report, Detective Newsome wrote that he told Barber

that the Commonwealth “knew he had killed Petrole

10

* * * for someone else” and that implicating the “higher

up” (who Detective Newsome believed to be respondent)

could be the “difference” between “execution or life in

prison.” Ibid.

Based on that evidence, the district court granted respondent’s habeas petition, vacated all three of respondent’s convictions, and ordered the Commonwealth either

to retry him within 120 days or to release him unconditionally. See Civ. No. 05-432, Dkt. 220. The court of appeals affirmed. See 691 F.3d 410, 426 (4th Cir. 2012).

4. Four days after the court of appeals issued its mandate, Detective Newsome and two Commonwealth attorneys (including Conway) made an unannounced visit to

Barber in prison to “intimidate[]” him away from repeating his recantation at respondent’s pending retrial. See

Civ. No. 05-432, 2012 WL 13103658, at *8 (E.D. Va. Dec.

26, 2012). The prosecution secretly recorded that “browbeating.” Id. at *8 n.3; Pet. App. 19a. Amid appeals to

scripture, God, and the conscience of Barber’s deceased

mother, the prosecution “threaten[ed]” that Barber’s testimony would “breach[] [his] plea agreement” and expose

him to “be tried again” for capital murder. 718 F.3d 277,

296-298 (4th Cir. 2013) (Thacker, J., concurring in part

and dissenting in part). The following day, the two Commonwealth attorneys recused themselves from respondent’s case.

Those events gave rise to further state and federal

proceedings concerning the Commonwealth’s actions.

When called to testify in state court, Barber, under the

advice of counsel, invoked his Fifth Amendment privilege

against self-incrimination. In federal court, Barber’s

counsel testified to Barber’s intention to invoke his Fifth

Amendment privilege in any retrial of respondent, noting

that counsel’s advice “w[ould] not change” absent a “new

11

development,” such as a grant of immunity. Pet. App. 21a23a.

The district court—believing that the Commonwealth’s actions had “incurably frustrated” the court’s habeas intervention by “permanently crystaliz[ing]” the

constitutional defects in respondent’s conviction—ordered respondent to be unconditionally released and

barred his reprosecution. 2012 WL 13103658, at *13-*14.

The court of appeals vacated that order in a divided decision, reasoning that it was “speculative” whether and how

Barber would testify. See 718 F.3d at 289, 291 (majority

opinion); id. at 299-300 (Thacker, J., concurring in part

and dissenting in part).

D. Respondent’s State Reprosecution

The Commonwealth subsequently filed an ex parte

motion to appoint a special prosecutor of their selection,

which the trial court granted. C.A. 1302-1303. Despite

conducting “no additional investigation,” the special prosecutor sought, and the grand jury returned, a superseding

indictment alleging six new charges in addition to the

original indictment’s three. Pet. App. 20a-21a; C.A. App.

413. Those new charges included capital murder by a person engaged in a continuing criminal enterprise, and additional felonies that carried life sentences. Pet. App. 20a21a. After the trial court rejected a vindictive prosecution

claim, respondent—“[c]oncluding he had no hope of a fair

trial, and without his star witness,” Pet. App. 25a—

pleaded guilty to first-degree murder, a firearm charge,

and conspiracy to distribute marijuana, see C.A. App. 416,

546-547.

Respondent appealed, arguing that his plea was involuntary because of prosecutorial misconduct and vindictive

prosecution. The Virginia Court of Appeals dismissed his

claims as unpreserved, see C.A. App. 418-422; the Virginia

12

Supreme Court denied discretionary review; and this

Court vacated the judgment and remanded in light of

Class v. United States, 583 U.S. 174 (2018). See 586 U.S.

1063 (2019). On remand, the Virginia Court of Appeals

again ruled against respondent on preservation grounds,

and both the Virginia Supreme Court and this Court denied review. See Pet. App. 26a.

E. Respondent’s Second Habeas Petition

1. On June 22, 2022—one day after the one-year limitation period expired, see 28 U.S.C. 2244(d)(1)—respondent filed a second federal habeas petition. While the petition was pending, Barber signed a new declaration. In it,

Barber explained why he refused to testify on respondent’s behalf in any retrial and how he would have testified

if the Commonwealth’s officials had not threatened to repudiate his plea agreement and retry him for capital murder. Explaining his previous vacillation as a product of

the Commonwealth’s intimidation, Barber reaffirmed his

multiple recantations of his original trial testimony and

stated again that respondent “had nothing to do with [Petrole’s] killing.” C.A. App. 570; see C.A. App. 570-577.

Based on that declaration, respondent filed an

amended habeas petition. He asserted both a vindictiveprosecution claim and a due-process claim. Pet. App. 29a31a. Respondent also sought to use actual innocence as a

gateway through any preservation issues and his untimely filing of his federal habeas petition. In support, respondent attached another declaration from Barber’s lawyer, attesting that Barber’s decision not to testify in respondent’s retrial was “final and obvious” absent immunity, which the Commonwealth had never offered. See C.A.

App. 2146-2148; Pet. App. 31a.

The district court granted petitioner’s motion to dismiss respondent’s amended habeas petition. Pet. App.

13

57a-76a. The court initially held that a showing of actual

innocence could not excuse respondent’s untimely filing.

The court also held that, even if it could, Barber’s declaration was not “new” evidence because respondent knew

the contents of Barber’s potential testimony when he entered his plea. Id. at 67a-74a. On reconsideration, the district court acknowledged that a showing of actual innocence would allow respondent to overcome the statute of

limitations, but the court reaffirmed that Barber’s declaration was not “new” evidence. The court further held

that Barber’s declaration was not “reliable” because of

Barber’s multiple recantations. Id. at 49a-56a.

2. The court of appeals reversed in a unanimous opinion. Pet. App. 1a-48a.

The court first held that Barber’s latest declaration

was “new” evidence for purposes of the actual-innocence

gateway because it was “reasonably unavailable” to respondent at the time of his guilty plea due to “abhorrent”

and “egregious” prosecutorial misconduct. Pet. App. 2a,

38a-41a, 47a. Although the court acknowledged a circuit

conflict on the standard for “new” evidence and adopted

the majority rule that any “newly presented” evidence is

“new,” the court explained that the question in this case

could not be resolved “just by parsing the nature of the

Schlup standard.” Id. at 37a. Instead, resolving the case

required consideration of the case’s unique “context.” Id.

at 37a-38a.

In context, the court of appeals held, Barber’s declaration was “new” because it “upset th[e] status quo” by

converting Barber from an “unavailable witness” into one

“who, even if not called at trial, was willing to provide a

contemporaneous declaration exculpating [respondent].”

Pet. App. 38a. A contrary finding, the court reasoned,

would “ignore[] the pivotal event” of Commonwealth

agents “show[ing] up unannounced at Barber’s jailhouse

14

door and coerc[ing] him into exercising his Fifth Amendment privilege.” Id. at 39a.

The court of appeals also held that Barber’s latest declaration was “reliable” because any “alleged vacillation”

by Barber was “entirely attributable to the Commonwealth’s coercive tactic of threatening him with the death

penalty if he did not cooperate.” Pet. App. 42a (internal

quotation marks and alteration omitted). “To hold the

consequence of the Commonwealth’s coercive tactics

against Barber’s credibility,” the court explained, would

have “defie[d] fundamental principles of due process and

justice.” Id. at 45a.

The court of appeals further held that it was “more

likely than not” that a reasonable jury presented with

Barber’s latest declaration would have acquitted respondent. Pet. App. 46a-48a. The court emphasized “Barber’s

multiple ‘credible’ recantations, his assertions that [respondent] had nothing at all to do with the crime, the

weakness of the Commonwealth’s case, the history of the

Commonwealth’s egregious misconduct, and the strength

of [respondent’s] claims challenging the voluntariness of

his plea.” Id. at 48a. The court of appeals thus held that

respondent had made a sufficient showing of actual innocence to excuse the procedural barriers in his case, and it

remanded the case for the district court to resolve his substantive constitutional claims on the merits. Ibid.

ARGUMENT

The decision below does not warrant the Court’s review. Petitioner argues that the court of appeals’ decision

presents an opportunity to resolve a circuit conflict about

what evidence qualifies as “new” for purposes of the actual-innocence gateway to habeas review. But none of the

decisions cited by petitioner resolves the question

15

whether evidence is “new” where it was previously unavailable due to prosecutorial misconduct. And any conflict

that does exist would not warrant the Court’s review at

this time in any event.

Petitioner’s arguments on the merits fare no better.

Petitioner misapprehends the actual holding of the court

below, and his arguments lack any basis in the underlying

rationale for the actual-innocence gateway or in this

Court’s precedents. Nor has petitioner shown that the

question presented is especially important or that this is

a good vehicle to resolve it. To the extent the question

presented warrants review at all, the Court should await

a better vehicle and deny the petition here—as it has repeatedly done with previous petitions raising questions

about the “new” evidence standard. See, e.g., Crow v.

Fontenot, 142 S. Ct. 2777 (2022) (No. 21-970); Hancock v.

Davis, 587 U.S. 1063 (2019) (No. 18-940); State Correctional Institution at Fayette v. Reeves, 587 U.S. 1070

(2019) (No. 18-543).

A. The Decision Below Does Not Squarely Implicate The

Conflict Identified By The Petition

Petitioner argues that the Court should grant review

to adopt the minority approach in a lopsided circuit conflict about the meaning of “new” evidence for purposes of

the actual-innocence gateway to habeas relief. According

to petitioner (Pet. 16-27), a handful of courts require a

criminal defendant to identify “newly discovered” evidence, while most courts allow a defendant to rely on any

“newly presented” evidence. This case does not squarely

implicate any such conflict, and that asserted conflict

would not warrant the Court’s review in any event.

1. Petitioner cites (Pet. 18-21) decisions from three

courts of appeals—the Third, Fifth, and Eighth Circuits—as purportedly adopting the “newly discovered”

16

standard in published decisions. As a preliminary matter,

two of those courts have expressly stated that they have

not definitively decided what qualifies as “new” evidence.

In particular, the Third Circuit has explained that, despite

“dicta” in earlier cases, it has not “resolved the meaning

of new evidence in the actual innocence context.” Reeves

v. Fayette SCI, 897 F.3d 154, 163, 165 n.11 (2018), cert.

denied, 587 U.S. 1070 (2019). The Fifth Circuit has likewise declined to “weigh in on the circuit split concerning

what constitutes ‘new’ evidence.” Hancock v. Davis, 906

F.3d 387, 389 (2018), cert. denied, 587 U.S. 1063 (2019) (internal quotation marks and citation omitted).

In addition, decisions from the Third, Fifth, and

Eighth Circuits suggest that those courts might reach the

same conclusion as the court of appeals below on the facts

of this case. For example, in Reeves, the Third Circuit

held that evidence qualifies as “new,” even if it could have

been previously discovered or presented, where the defendant “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.” 897 F.3d at 164. The Third Circuit

viewed that “limited approach”—which petitioner suggests is correct, see Pet. 34-35—as necessary to avoid the

“inequity” and “injustice of incarcerating an innocent individual.” Reeves, 897 F.3d at 163-164 (internal quotation

marks and citation omitted). Under that reasoning, there

is good reason to think that the Third Circuit would adopt

a similar approach where prosecutorial misconduct previously made the relevant evidence unavailable.

Similarly, the Fifth Circuit has assumed without deciding that the denial of a defendant’s counsel of choice

could render previously unpresented evidence “new” for

purposes of the actual-innocence gateway. See Mendoza

v. Lumpkin, No. 21-20501, 2022 WL 3657188, at *3 (Aug.

17

25, 2022). In so doing, the panel analogized to the principle that,“[w]here the underlying constitutional violation

claimed is the ineffective assistance of counsel premised

on a failure to present evidence, 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.” Ibid. (quoting Gomez v. Jaimet, 350 F.3d 673, 679680 (7th Cir. 2003)); but see Tyler v. Davis, 768 Fed. Appx.

264, 265 (5th Cir. 2019) (declining to recognize a special

rule for determining whether evidence is “new” in the context of ineffective assistance of counsel).

The Eighth Circuit’s precedents likewise suggest that

it may reach the same conclusion as the decision below in

the context of prosecutorial misconduct. Although the

Eighth Circuit has held that evidence must be “newly

available” to qualify as “new” for purposes of the actualinnocence gateway, see, e.g., Amrine v. Bowersox, 238

F.3d 1023, 1028-1029, cert. denied, 534 U.S. 963 (2001), it

has also recognized that the “new” evidence standard

“does not require a defendant to root out information that

the State has kept hidden,” Jimerson v. Payne, 957 F.3d

916, 927 (2020) (citing, inter alia, Kidd v. Norman, 651

F.3d 947, 952 (8th Cir. 2011) (analyzing whether evidence

was “new” for purposes of the actual-innocence gateway),

cert. denied, 568 U.S. 838 (2012))). As the Eighth Circuit

explained, the State “cannot play ‘hide and seek’ with information it was required to disclose and then accuse defense counsel of lacking due diligence.” Ibid.1

In a footnote (Pet. 20 n.4), petitioner cites an unpublished order

from the D.C. Circuit. See Adams v. Middlebrooks, 640 Fed. Appx.

1, 3-4 (D.C. Cir. 2016). That non-binding disposition did not purport

to take a side in the circuit conflict about the meaning of “new” evidence. Instead, the Court reasoned that, because the defendant could

have obtained the relevant evidence years earlier, the “unexplained

1

18

In short, it is unclear whether the courts even allegedly on petitioner’s side of the circuit conflict would disagree with the decision below if confronted with a case in

which the relevant evidence was made unavailable due to

prosecutorial misconduct. See Pet. App. 47a-48a. For

that reason alone, this case does not present a clean conflict warranting the Court’s intervention.

2. Petitioner also has not shown that the broader reasoning of the decision below conflicts with those of other

courts. Although petitioner frames the circuit conflict as

between courts that require “newly discovered” evidence

and those that require only “newly presented” evidence,

see, e.g., Pet. 16-17, petitioner obscures the more complex

state of the law in the lower courts.

The courts of appeals purportedly on petitioner’s side

of the conflict have not adopted a pure “newly discovered”

standard. Rather, they have considered both whether the

evidence could previously have been “discovered” by the

defendant and whether it was previously “available” to

him. For example, the Eighth Circuit has explained that

evidence is “new” if it was “not available at the time of trial

through the exercise of due diligence.” Jimerson, 957

F.3d at 927. Applying that standard, the Eighth Circuit

has rejected claims of actual innocence where the evidence at issue could have been “presented” in earlier proceedings—that is, where the evidence was previously

“available” to the defendant. Kidd, 651 F.3d at 951, 953;

Amrine, 238 F.3d at 1028-1029.

Similarly, although the Fifth Circuit has not formally

adopted a position about the meaning of “new” evidence,

the court has considered both whether evidence was

delay in presenting [the] new evidence” undermined his argument

that he had produced “evidence of innocence so strong” that it “create[d] a lack of confidence in the outcome of his trial.” Id. at 4 (quoting McQuiggin v. Perkins, 569 U.S. 383, 399 (2013)).

19

“newly discovered” and whether it was “previously unavailable” in deciding whether the actual-innocence gateway was available. Hancock, 906 F.3d at 389-390 & n.1.

The court has rejected the “new” designation where the

defendant failed to show that the evidence was previously

“unavailable” to him. Id. at 390; see Fratta v. Davis, 889

F.3d 225, 232 (5th Cir. 2018), cert. denied, 586 U.S. 1080

(2019); Moore v. Quarterman, 534 F.3d 454, 461, 464-465

(5th Cir. 2008). And although one decision from the Third

Circuit has suggested that a court should look to whether

the evidence was “previously known” to the criminal defendant, that analysis was based on the statutory language in 28 U.S.C. 2244(d)(1)(D), and not any meaningful

analysis of the appropriate standard for the actual-innocence gateway. Compare Sistrunk v. Rozum, 674 F.3d

181, 189 (2012), with id. at 191-192. As already noted, see

p. 16, the Third Circuit has more recently clarified that it

has not definitively resolved the meaning of “new” evidence in the actual-innocence context. Reeves, 897 F.3d

at 163.

Consistent with those decisions, the decision below appropriately focused on whether the evidence at issue was

previously “unavailable” to respondent. Although petitioner emphasizes (Pet. 15, 22) one part of the decision in

which the court of appeals purported to adopt the majority position requiring only “newly presented” evidence,

petitioner largely ignores the decision’s actual reasoning.

Specifically, the court below held that Barber’s declaration was “new” evidence because it was “reasonably unavailable” to respondent at the time of his guilty plea due

to prosecutorial misconduct. Pet. App. 41a. As the court

summarized its holding, Barber’s declaration was “new

evidence because it rendered Barber available to [respondent] as an exculpatory witness when Barber had

previously been unavailable pursuant to his invocation of

20

his Fifth Amendment privilege.” Id. at 3a-4a. That reasoning does not implicate any conflict between courts that

require “newly presented” evidence and those that require “newly discovered” evidence, because Barber’s testimony was unavailable to respondent in his retrial.

3. In passing, petitioner invokes (Pet. 25) “another

wrinkle” in this case based on the fact that respondent is

challenging a guilty plea. Petitioner contends (id. at 2526) that there is additional disagreement among lower

courts on how to assess “new” evidence in the context of

guilty pleas. But if anything, that additional complication

weighs against this Court’s review, because the alleged

disagreement among lower courts is entirely underdeveloped, consisting primarily of statements from unpublished decisions and concurring opinions. See ibid.

This Court should either await a case that does not present an added “wrinkle” that could impede review or allow

for further percolation on the additional asserted conflict.

B. The Decision Below Is Correct

Petitioner also argues (Pet. 30-37) that the Court’s review is warranted because the court of appeals erred on

the merits. Petitioner is incorrect.

1. As a preliminary matter, petitioner’s merits arguments mistakenly assume that the decision below turned

on a showing of “newly presented evidence, regardless of

whether that evidence was available or discoverable at

earlier stages of the case.” Pet. 31. The decision below

turned on the unique “context” of this case, which involves

exculpatory evidence that was “reasonably unavailable”

to respondent due to prosecutorial misconduct. Pet. App.

38a, 41a; see also p. 13, supra. Petitioner never explains

why that holding was erroneous. And if petitioner is willing to accept an exception to his proposed standard for ineffective assistance of counsel, see Pet. 34-35, it is hard to

21

see why an exception for prosecutorial misconduct would

not follow from the same logic. If anything, the case for

such an exception is even greater in the context of prosecutorial misconduct that prevents a defendant from presenting the relevant evidence at trial.

2. Even assuming that the court of appeals’ adoption

of the “newly presented” standard was outcome-determinative here, that standard properly reflects the balance

struck by the actual-innocence gateway and this Court’s

precedents.

The actual-innocence gateway recognizes that “principles of comity and finality” must sometimes “yield to the

imperative of correcting a fundamentally unjust incarceration” where the evidence of innocence is “so strong that

a court cannot have confidence in the outcome of the trial.”

Schlup v. Delo, 513 U.S. 298, 316, 320-321 (1995) (internal

quotation marks and citation omitted). The inquiry thus

focuses on whether the reviewing court has compelling

reasons to believe that the prior proceedings may have resulted in the conviction of an innocent person. Requiring

“newly presented” evidence furthers that rationale by ensuring that the claim of innocence is not based solely on

evidence “already found sufficient to convict the petitioner.” Fontenot v. Crow, 4 F.4th 982, 1033 (10th Cir.

2021), cert. denied, 142 S. Ct. 2777 (2022). By contrast,

whether the defendant could have “discovered” the evidence with greater diligence is “beside the principal point

of avoiding [the] manifest injustice” of a wrongful conviction. Ibid.

In addition, the actual-innocence gateway is meant to

apply when a defendant cannot satisfy the “standard equitable exceptions,” which typically require “some excuse

for the delayed presentation of a claim.” Fontenot, 4

F.4th at 1032. Requiring a showing of diligence to invoke

the actual-innocence gateway thus “makes scant sense,”

22

because it is relevant only when the habeas petitioner was

not otherwise “reasonably diligent” in pursuing his

claims. McQuiggin v. Perkins, 569 U.S. 383, 398-399

(2013).

This Court’s precedents reflect those principles. For

example, in Schlup, the Court explained that a criminal

defendant must come forward with “new reliable evidence

* * * that was not presented at trial,” and it used the

“newly presented” formulation throughout in discussing

the type of required evidence. 513 U.S. at 324, 330, 331332. The Court also treated as “new” evidence that was

not “presented” at trial but could have been “discovered”

at the time: namely, affidavits from a prison official who

testified at trial and from inmates at the relevant facility

who were interviewed by law enforcement before trial.

See id. at 307-308, 310-312, 316-317, 331 & nn.25, 26. The

Court’s decision in House v. Bell, 547 U.S. 518 (2006), is to

the same effect: there, both the majority and the partial

dissent described the actual-innocence standard as

whether the defendant offered “new reliable evidence

* * * that was not presented at trial.” Id. at 537 (citing

Schlup, 513 U.S. at 324); id. at 556 (Roberts, C.J., concurring in the judgment in part and dissenting in part)

(same).

3. Petitioner’s contrary arguments lack merit.

Petitioner primarily argues (Pet. 3, 31-33) that a

“newly discovered” standard is necessary to prevent

“sandbag[ging]” by defendants. But it borders on the

nonsensical to worry about a criminal defendant making a

“tactical choice” to withhold exculpatory evidence, Pet. 32,

where (as here) the government coerced the key witness

into asserting his Fifth Amendment right not to testify.

And even as a general matter, it would be a bizarre and

extraordinary gamble for a criminal defendant to with-

23

hold key exculpatory evidence from trial based on the expectation that (1) his federal constitutional rights will be

violated, (2) he will procedurally default that constitutional claim, and (3) the withheld evidence will overcome

the rigorous standard of the actual-innocence gateway. In

any event, courts may consider a prisoner’s diligence as

part of the assessment of whether “actual innocence has

been convincingly shown,” because “unexplained delay”

will “undermine the credibility of [an] actual-innocence

claim,” even if it is not a “threshold inquiry.” Perkins, 569

U.S. at 399-400.

Petitioner relatedly contends that defendants will

withhold exculpatory evidence for other strategic reasons, such as “to avoid impeachment, rebuttal, or the

presentation of conflicting accounts.” Pet. 32. But there

is no reason to think that such untested “new” evidence

would “raise[] sufficient doubt about [the defendant’s]

guilt to undermine confidence in the result of the trial.”

Bell, 547 U.S. at 537. After all, respondent’s evidence

would be subject to adversarial testing at the resulting

Schlup hearing, after which point the court would review

“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.” Id. at 537-538 (internal quotation marks and citation omitted).

Petitioner next cites (Pet. 24, 32) Justice O’Connor’s

concurring opinion in Schlup, which referred in a single

sentence to “newly discovered evidence of innocence” in

summarizing the holding of the majority opinion. 513 U.S.

at 332. But Justice O’Connor joined in full the majority

opinion, which repeatedly referred to “newly presented”

evidence and ultimately relied on such evidence. See p.

21, supra. And in House, both the majority and the separate opinions viewed the relevant question as whether the

24

new evidence had been “presented at trial.” See p. 22, supra.

Finally, petitioner contends (Pet. 32) that the “newly

discovered” standard is necessary to ensure that the actual-innocence gateway remains a “rare” exception applied only in the “extraordinary case,” Schlup, 513 U.S. at

321. But as the Court has explained, “new reliable evidence” that “raise[s] sufficient doubt about [the defendant’s] guilt” is already “unavailable in the vast majority of

cases,” regardless of whether it could have been previously discovered. Id. at 316, 324. To that very point, a

majority of circuits have long applied the “newly presented” standard, see Pet. 21-25, and petitioner has offered no evidence that successful actual-innocence claims

have inundated courts in those jurisdictions.2

C. The Question Presented Does Not Warrant The

Court’s Review In This Case

Petitioner also has not shown that the question presented is particularly important or that this case is a suitable vehicle for considering it.

1. Petitioner argues (Pet. 27-29) that the standard for

“new” evidence is important because of a State’s interest

in the finality of criminal convictions. But the Court has

already explained that the actual-innocence standard “accommodates both the systemic interests in finality, comity, and conservation of judicial resources, and the over-

Although petitioner claims that his petition concerns only the legal standard for “new” evidence, he repeatedly questions (Pet. 13, 15,

35-36) the court of appeals’ holding that respondent had made a sufficient factual showing of his actual innocence. Petitioner has not

sought review of the lower court’s careful, fact-bound holding as to

that issue, and it would not warrant review in any event. See Sup. Ct.

R. 10, 14.1(a); Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27, 30-31 (1993).

2

25

riding individual interest in doing justice in the extraordinary case,” Schlup, 513 U.S. at 322 (internal quotation

marks and citation omitted)—without imposing any diligence requirement, see p. 21, supra. And again, a majority of courts of appeals have long applied a “newly presented” standard, and petitioner has offered no reason to

think that courts in those jurisdictions have experienced a

flood of successful actual-innocence claims.

Petitioner relatedly invokes (Pet. 27-29) the State’s interest in the finality of guilty pleas. But the fact that this

case arises in the context of a guilty plea makes it ill-suited

for addressing the asserted conflict on the standard for

“new” evidence. See p. 20, supra. In any event, both this

Court and the court below have recognized that the

State’s interest in the finality of guilty pleas must give

way in certain cases, such as where the government engaged in “egregiously impermissible conduct” that was

“material” to the defendant’s choice to plead guilty, rendering the plea involuntary. Pet. App. 47a; see also Brady

v. United States, 397 U.S. 742, 755 (1970). That is exactly

the case here.

Petitioner further notes (Pet. 29-30), without substantiation, that the standard for “new” evidence arises frequently in the thousands of habeas petitions filed each

year. Even if true, that fact cuts against petitioner, not

for him: it means that the Court is essentially guaranteed

to have another, better opportunity to address the question presented in a future case (as it has numerous times

in the past, see p. 15, supra).

2. Petitioner also argues (Pet. 37-38) that this case is

a good vehicle to resolve the question presented. That argument does not withstand even the most minimal scrutiny. As already explained, the case involves the unique

circumstances of “abhorrent” and “egregious” conduct by

26

prosecutors using the threat of the death penalty to pressure the prosecution’s key witness into invoking his Fifth

Amendment right not to testify at respondent’s retrial,

depriving respondent of crucial testimony that he was not

involved in the underlying murder. See Pet. 2a, 45a, 47a48a. It is thus far from clear that adopting the minority

view in the asserted circuit conflict—under which courts

consider both whether evidence was “newly discovered”

and whether it was previously “available”—would be “outcome-determinative” here. See Pet. 37; pp. 16-18, supra.

Nor is the state of the law in the lower courts “ingrained

and mature” (Pet. 38), except insofar as the majority of

courts have long rejected petitioner’s position without disrupting the system of federal habeas review.

*

*

*

*

*

In the end, the petition should be denied because it

does not implicate any conflict among the courts of appeals; the court below correctly held that respondent provided “new” evidence establishing his actual innocence;

and the case neither raises a question of particular importance nor presents a suitable vehicle for addressing

the meaning of “new” evidence in the actual-innocence

context. And given the egregious prosecutorial misconduct that gives rise to this case, it would be an eminently

reasonable exercise of “judicial discretion,” Sup. Ct. R. 10,

for the Court to decline to expend its limited resources to

save the Commonwealth from the consequences of its previous wrongdoing.

27

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SCOTT M. ABELES

GENE ROSSI

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