5th Circuit Notes Split Re: Standard for Establishing Actual Innocence; Declines to Address

Per Wright v. Quarterman, 470 F.3d 581 (5th Cir. Nov. 17, 2006):

To establish actual innocence under Schlup, Wright must demonstrate that in light of all the evidence, including that "tenably claimed to have been wrongly excluded or to have become available only after trial," Schlup v. Delo, 513 U.S. 298, 328 (1995), "it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt," id. at 327.

. . .

The district court held that this evidence did not satisfy the Schlup standard. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 at *9 (N.D.Tex. Mar.10, 2004). In particular, it noted that although much of this evidence was "newly presented," most of it was available at the time of trial. Id. at *7-*8. The affidavits from Wright's defense attorneys regarding the size of the bloody jeans was not new because those attorneys had made the same argument to the jury in their closing statements. Id. at *7. The affidavit of Daniel McGaughey, who called 911 on Adams's behalf, did not differ from statements McGaughey made to the police that were disclosed. Id. at *8. And there was simply no evidence, new or old, that undermined Mosley's testimony. Id. The district court found the remaining evidence insufficiently persuasive to meet the Schlup standard. Id. at *9.

In this motion, Wright argues that the district court erred in requiring him to present "new" evidence. The courts of appeals disagree as to whether Schlup requires "newly discovered" evidence or merely "newly presented" evidence. Compare Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir.2005) ( "Evidence is only new if it was 'not available at trial and could not have been discovered earlier through the exercise of due diligence.' " (quoting Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir.2001))), and Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir.2004) (requiring new evidence that was not available at the time of trial), with Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir.2003) ("All Schlup requires is that the new evidence is reliable and that it was not presented at trial."), and Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir.2003) (requiring "newly presented," not newly available evidence). Neither party cites controlling case law from this court. We, however, need not address this circuit split or determine whether Wright has established actual innocence because he has not demonstrated that jurists of reason would find the merits of his Brady claims debatable. Cf. Lucas v. Johnson, 132 F.3d 1069, 1078 (5th Cir.1998) (assuming arguendo that petitioner had satisfied Schlup and considering claim on the merits).