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3RD CIRCUIT HOLDS “ACTUAL INNOCENCE” EVIDENCE NEED NOT BE NEWLY DISCOVERED

The Supreme Court ruled in Schlup v. Delo that an actual innocence claim was an exception to habeas corpus “procedural default.” More recently, McQuiggin v. Perkins held that actual innocence excuses filing a habeas petition late. But courts of appeal have wrestled with whether the evidence of actual innocence has to be newly discovered, or just be evidence the jury never saw before.

The 3rd Circuit weighed in on the issue last week, joining the 1st, 2nd, 6th, 7th and 9th in holding that the evidence the petitioner relied on could be simply evidence the jury never saw before, even if it was evidence that the defendant knew about, but his lawyer never presented.

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

Reeves v. Fayette SCI, Case No. 17-1043 (3rd Cir., July 23, 2018)

– Thomas L. Root