PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 17-1043

______________

JERRY REEVES,

Appellant

v.

FAYETTE SCI; THE ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA; THE DISTRICT 

ATTORNEY OF DAUPHIN COUNTY

______________

APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 3-14-cv-01500)

District Judge: Hon. Malachy E. Mannion

______________

Argued May 16, 2018

______________

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

(Filed:July 23, 2018)
2

Matthew Stiegler, Esq. [ARGUED]

Law Office of Matthew Stiegler

7145 Germantown Avenue, Suite 2

Philadelphia, PA 19119

David R. Fine, Esq.

K&L Gates LLP

17 North Second Street, 18th Floor

Harrisburg, PA 17101

Counsel for Appellant

Francis T. Chardo, Esq.

Ryan H. Lysaght, Esq. [ARGUED]

Dauphin County Office of the District Attorney

101 Market Street, 2nd Floor

Harrisburg, PA 17101

Counsel for Appellee

Stephen Fogdall, Esq.

Schnader Harrison Segal & Lewis LLP

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Counsel for Amicus Curiae Former 

Prosecutors, Members of the Judiciary, and 

Law Enforcement Officers
3

Ronald F. Wick, Esq.

Erica C. Lai, Esq.

Danielle Morello, Esq.

Melissa H. Maxman, Esq.

Cohen & Gresser LLP

2001 Pennsylvania Avenue NW, Suite 300

Washington, DC 20001

Counsel for Amicus Curiae the Innocence 

Network and the Pennsylvania Innocence 

Project

David Rudovsky, Esq.

Jonathan H. Feinberg, Esq.

Jules Epstein, Esq.

Kairys, Rudovsky, Messing, Feinberg & Lin LLP

The Cast Iron Building

718 Arch Street, Suite 501 South

Philadelphia, PA 19106

Counsel for Amicus Curiae Scholars of Habeas 

Corpus Law

______________

OPINION OF THE COURT

______________

SHWARTZ, Circuit Judge.

Jerry Reeves was convicted of robbery, carrying a 

firearm without a license, and second degree murder relating 
4

to an armed robbery of a gas station convenience store that

resulted in the death of the store clerk. Reeves was sentenced 

to life imprisonment without the possibility of parole. He filed 

a four-months-late habeas petition in federal court asserting 

ineffective assistance of counsel and seeking to excuse his 

petition’s untimeliness based on the actual innocence

exception to procedural default recognized in Schlup v. Delo, 

513 U.S. 298 (1995), and extended to include time-barred 

petitions in McQuiggin v. Perkins, 569 U.S. 383 (2013). To 

qualify for this exception, the petitioner must present new,

reliable evidence showing it is more likely than not that no 

reasonable juror would have voted to convict him. Schlup, 513 

U.S. at 324, 329. Because we conclude that Reeves has

identified evidence that may show actual innocence that was 

not presented to the jury, we will vacate and remand for further 

proceedings. 

I

On May 25, 2006, a man robbed a City Gas and Diesel 

convenience store in Harrisburg, Pennsylvania and shot and 

killed the store’s clerk. The robbery and shooting were 

captured on the store’s silent, black-and-white surveillance 

video. The video shows that a single robber entered the store 

and pointed a gun at the clerk. The clerk tried to close a 

bulletproof glass window, but the robber’s arm blocked the 

window from closing. The robber fired a shot, causing the 

clerk to fall back. The clerk got up, made a surrendering 

gesture, and began emptying the cash register. The clerk then 

fell to the floor, and the robber jumped over the counter 

through the open bulletproof glass window and collected the 

remaining money. He then left the store on foot. A local 

newspaper published a story about the crime the next day. 
5

A few days after the shooting, Reeves, then eighteen 

years old, was in jail for conduct unrelated to the robbery. A 

police officer asked him about the convenience store robbery 

and Reeves claimed that he had witnessed the crime and 

identified a robber by name. Reeves was subsequently 

released and attended his family’s Memorial Day cookout a 

few days later. On May 30, 2006, the police interviewed 

Reeves, who ultimately admitted that he had lied about 

witnessing the robbery to gain release and attend his family’s

cookout. He was charged with and pleaded guilty to hindering 

apprehension.

Around this time, the police had received information 

about other potential suspects. The same day the robbery

occurred, the police were notified that two individuals who had 

previously been convicted of other crimes—Kai Anderson and 

Michael Holmes—failed to show up at a work-release center 

located near the City Gas and Diesel and that Anderson fit the 

physical description of the robber. On May 29, 2006, the 

police spoke to Danielle Ignazzito—the mother of Anderson’s 

child—who stated that Anderson called her two days after the 

robbery, telling her he had “a lot of money” to give her for 

outstanding child support. App. 155. She further stated that 

she received a call from Kenneth Marlow, who told her that 

Anderson and Holmes had fled the state because police were 

looking for Anderson for the robbery. On May 31, 2006, 

Anderson was arrested and admitted escaping the work release 

center with Holmes, talking to Marlow, and asking Marlow to 

call Ignazzito. Anderson claimed that a different person 

committed the robbery. 

On June 9, 2006, the police interviewed Marlow. 

Marlow stated that Anderson told him that he was involved in 
6

the robbery and asked Marlow to call Ignazzito for him. A few 

weeks later, Johnathan Johnston—who had been incarcerated 

with Anderson—told the police that Anderson confessed to 

him that he participated in the robbery with Holmes and 

Holmes’s younger brother to obtain money to repay a victim 

of another robbery Anderson committed. According to 

Johnston, Anderson provided specific details about the 

robbery, including that the robber was not supposed to shoot 

the clerk but that the gun went off, and the clerk fell, got up, 

then fell again, at which point the robber jumped over the 

counter to retrieve the money. Johnston also stated that 

Anderson wanted Johnston’s wife to threaten Ignazzito so that 

she would not talk to the police. Johnston further told the 

police that Anderson said he had also confessed to Marlow and 

that Marlow was not supposed to tell Ignazzito about the 

robbery. On March 9, 2007, the police interviewed Michael 

Holmes, who admitted to leaving the work release center with 

Anderson on the day of the robbery but spent the day visiting

various people’s homes. The record does not indicate why the

Anderson leads were not pursued further, but before trial, 

Reeves’s trial counsel was provided with copies of the police 

reports about Anderson and Holmes. 

On July 29, 2009, more than three years after the 

shooting, Reeves and his then-girlfriend, who was pregnant,

were arrested and taken to jail for conduct unrelated to the City 

Gas and Diesel robbery. Reeves again spoke to police officers

and, ten to twelve hours later, confessed to committing the City 

Gas and Diesel robbery. 

At Reeves’s trial in 2010, the prosecutor presented the 

testimony of the officers who had interviewed Reeves, an 

audio recording of Reeves’s confession, and the store 
7

surveillance tape of the robbery and shooting, among other 

evidence. Reeves testified and denied involvement in the 

robbery, stating that he was experiencing health problems on 

the day of his July 29, 2009 confession and that detectives told 

him they would take him to the hospital only if he confessed. 

He also asserted that detectives promised to release his 

girlfriend if he confessed and that the police fed him details 

about the robbery for his taped confession. Reeves further 

stated that he was in Baltimore at the time of the crime, which 

caused the prosecution to call a rebuttal witness who testified 

that while he was in jail with Reeves, Reeves discussed paying 

a person to say that Reeves was in Baltimore, not Harrisburg, 

when the robbery occurred. The Kai Anderson evidence was 

not presented at trial.

The jury convicted Reeves of robbery, carrying a 

firearm without a license, and second degree murder. He was 

sentenced to life imprisonment. The Pennsylvania Superior 

Court affirmed the conviction and sentence on July 1, 2011, 

and Reeves did not appeal to the Pennsylvania Supreme Court.

 

On July 30, 2012, Reeves filed a Post-Conviction Relief 

Act (“PCRA”) petition asserting ineffective assistance of 

counsel based on his trial counsel’s failure to present the Kai 

Anderson evidence, among other alleged deficiencies. On 

October 10, 2012, the PCRA Court issued a memorandum 

order notifying Reeves of its intent to dismiss the PCRA 

petition. Reeves filed objections on October 29, 2012, and the 

PCRA Court dismissed the petition on November 26, 2012

without a hearing, concluding that trial counsel’s failure to 

present evidence of an alternate suspect did not prejudice 

Reeves because Reeves confessed to committing the robbery
8

and the store surveillance video corroborated his confession.

1

 

On November 7, 2013, the Pennsylvania Superior Court 

summarily affirmed and adopted the PCRA Court’s October 

10, 2012 and November 26, 2012 opinions without additional 

reasoning. The Pennsylvania Supreme Court denied Reeves’s

petition for review. 

On July 31, 2014, Reeves filed a federal habeas petition

with new counsel, asserting ineffective assistance of counsel 

on the grounds that Reeves’s trial counsel failed to investigate 

and present certain exculpatory evidence at trial, including 

evidence suggesting that Anderson and Holmes committed the 

robbery.

2

 Reeves conceded that his federal habeas petition was 

filed approximately four months late, but asserted that this 

 

1

In its discussion concerning the Kai Anderson 

evidence, the PCRA Court stated: “Accepting Petitioner’s 

argument that all of the hearsay and non-hearsay testimony that 

would have been presented at trial would have been 

admissible, Petitioner fails to explain how this testimony 

would have rebutted Petitioner’s own admission to the 

robbery/homicide.” App. 492. 

2 Besides the evidence concerning other alternative 

suspects, Reeves pointed to trial counsel’s failures to 

adequately develop and/or present (1) evidence of Reeves’s

left-handedness and the shooter’s right-handedness, (2) 

inconsistencies between Reeves’s confession and the 

surveillance video, (3) a news article of the robbery which 

would show that Reeves’s confession contained public 

information about the crime, (4) medical records showing 

Reeves was hospitalized on the day of his confession for a 

suicide attempt and had a history of mental health problems, 

and (5) evidence of Reeves’s history of uncontrolled lying. 
9

procedural defect was excusable because he had shown actual 

innocence. The petition was referred to the Magistrate Judge

for a report and recommendation. The Magistrate Judge 

opined that the actual innocence exception requires the 

petitioner to present new evidence and that the evidence 

Reeves claims should have been presented was available to 

him and his trial counsel and thus did not qualify as new 

evidence. As a result, the Magistrate Judge denied an 

evidentiary hearing and recommended that the District Court 

dismiss Reeves’s petition as untimely. The District Court 

adopted the Magistrate Judge’s report and recommendation, 

agreed that the evidence concerning alternative suspects was 

not new evidence because it was available at trial, concluded 

that Reeves failed to demonstrate actual innocence sufficient 

to overcome the statute of limitations, and dismissed Reeves’s

petition as time-barred. The District Court also denied an 

evidentiary hearing and a certificate of appealability. Reeves 

sought a certificate of appealability, which we granted as to, 

among other things, “(1) whether the evidence Appellant relied 

on in the District Court constitutes ‘new’ evidence” and “(2) 

whether Appellant’s evidence satisfied the [actual innocence] 

standard.” App. 72-73.

II

3

 

3 The District Court had jurisdiction under 28 U.S.C. § 

2254. Our Court has jurisdiction pursuant to 28 U.S.C. 

§§ 1291 and 2253. Our review is plenary where, as here, the 

District Court did not conduct an evidentiary hearing. Houck 
10

Reeves asserts that his trial counsel was ineffective for

failing to present at trial evidence of alternative suspects for the 

shooting, his left-handedness, mental condition at the time of 

his confession, and history of compulsive lying. He concedes 

that his petition is late but argues that this exculpatory evidence 

demonstrates actual innocence and warrants excusing his 

untimeliness. 

A

Under the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”), state prisoners have one year to file 

a federal habeas petition, which begins to run from “the date 

on which the judgment became final.” 28 U.S.C. 

§ 2244(d)(1)(A). However, to prevent a “fundamental 

miscarriage of justice,” an untimely petition is not barred when 

a petitioner makes a “credible showing of actual innocence,” 

which provides a gateway to federal review of the petitioner’s

otherwise procedurally barred claim of a constitutional 

violation.

4

 McQuiggin, 569 U.S. at 386, 392. This 

 

v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010). In addition, we 

exercise plenary review over the District Court’s determination 

of a petitioner’s claim of actual innocence. Sweger v. Chesney, 

294 F.3d 506, 522 (3d Cir. 2002). 

4

In contrast to gateway (or procedural) actual innocence 

claims, freestanding (or substantive) claims of actual 

innocence assert innocence without any accompanying 

constitutional defect in the trial resulting in the conviction. See

Schlup, 513 U.S. at 313-16 (distinguishing between the two 

types of claims). The Supreme Court has not definitively 

resolved whether such freestanding actual innocence claims 
11

“exception[] is grounded in the ‘equitable discretion’ of habeas 

courts to see that federal constitutional errors do not result in 

the incarceration of innocent persons,” and it “survived 

AEDPA’s passage.”5Id. at 392-93. In this context, actual 

innocence refers to factual innocence, not legal insufficiency. 

 

are cognizable, McQuiggin, 569 U.S. at 392, but to the extent 

they are, they are assessed under a more demanding standard, 

since the petitioner’s claim is that his conviction is 

constitutionally impermissible “even if his conviction was the 

product of a fair trial,” Schlup, 513 U.S. at 316. See House v. 

Bell, 547 U.S. 518, 555 (2006) (concluding that the petition 

satisfied the gateway innocence standard announced in Schlup

but not the higher standard for freestanding innocence 

discussed in Herrera v. Collins, 506 U.S. 390, 417 (1993)). 

Gateway innocence claims, on the other hand, assert a claim of 

actual innocence “so strong that a court cannot have confidence 

in the outcome of the trial unless the court is also satisfied that 

the trial was free of nonharmless constitutional error.” Schlup, 

513 U.S. at 316. 

5 Although AEDPA explicitly provides actual 

innocence exceptions to some of its procedural provisions, and 

these exceptions incorporate a newly discovered evidence 

standard, see 28 U.S.C. §§ 2244(b)(2)(B) and 2254(e)(2), the 

Supreme Court has explained that the actual innocence 

miscarriage of justice exception is separate from AEDPA’s 

statutory provisions, and the exception survived AEDPA’s 

passage. McQuiggin, 569 U.S. at 393-98. Thus, AEDPA’s 

actual innocence provisions are not dispositive of the scope of 

new evidence under the actual innocence miscarriage of justice 

exception recognized by the Supreme Court in Schlup, House, 

and McQuiggin. 
12

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

omitted). 

To satisfy this standard, first, “a petitioner must present 

new, reliable evidence” and second, “show by a preponderance 

of the evidence ‘that it is more likely than not that no 

reasonable juror would have convicted him in the light of the 

new evidence,’” Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 

2010) (citing and quoting Schlup, 513 U.S. at 324, 327), or 

stated differently, that it is “more likely than not any reasonable 

juror would have reasonable doubt,” House v. Bell, 547 U.S. 

518, 538 (2006). As part of the reliability assessment of the 

first step, the court “may consider how the timing of [the 

petitioner’s] submission and the likely credibility of the 

[witnesses] bear on the probable reliability of that evidence,” 

as well as the circumstances surrounding the evidence and any 

supporting corroboration. Id. at 537, 551 (internal quotation 

marks and citation omitted); see also McQuiggin, 569 U.S. at 

399. 

In evaluating the second step—whether it is more likely 

than not no reasonable juror would convict the petitioner—the

court “must consider all the evidence, old and new, 

incriminating and exculpatory, without regard to whether it 

would necessarily be admitted under rules of admissibility that 

would govern at trial.” House, 547 U.S. at 538 (internal 

quotation marks and citation omitted). “[M]ere impeachment 

evidence is generally not sufficient to satisfy the [actual 

innocence gateway] standard.” Munchinski v. Wilson, 694 

F.3d 308, 338 (3d Cir. 2012). However, new, reliable evidence 

that “undermine[s] the [trial] evidence pointing to the identity 

of the [perpetrator] and the motive for the [crime]” can suffice 

to show actual innocence. Goldblum v. Klem, 510 F.3d 204, 
13

233 (3d Cir. 2007); see also Munchinski, 694 F.3d at 336-37 

(explaining that actual innocence was demonstrated where new 

evidence both showed that the crime could not have happened 

in the way the Commonwealth presented at trial and provided 

an alternative theory that was more appropriate and better fit 

the facts of the case). In weighing the evidence, “[t]he court’s 

function is not to make an independent factual determination 

about what likely occurred, but rather to assess the likely 

impact of the evidence on reasonable jurors”; the actual 

innocence standard “does not require absolute certainty about 

the petitioner’s guilt or innocence.” House, 547 U.S. at 538. 

The gateway actual innocence standard is “demanding” 

and satisfied only in the “rare” and “extraordinary” case where

“a petition presents evidence of innocence so strong that a court 

cannot have confidence in the outcome of the trial unless the 

court is also satisfied that the trial was free of nonharmless 

constitutional error.” McQuiggin, 569 U.S. at 386, 392, 401 

(internal quotation marks and citations omitted). 

B

The threshold requirement for applying the actual 

innocence standard is new evidence supporting the petitioner’s 

innocence. The Supreme Court opinions addressing the actual 

innocence gateway do not explicitly define “new evidence,”

and our sister circuit courts are split on whether the evidence 

must be newly discovered or whether it is sufficient that the 

evidence was not presented to the fact-finder at trial. The Court 

of Appeals for the Eighth Circuit—the first to address the 

issue—held that “evidence is new only if it was not available 

at trial and could not have been discovered earlier through the 

exercise of due diligence.” Amrine v. Bowersox, 238 F.3d 
14

1023, 1028 (8th Cir. 2001) (internal citation and quotation 

marks omitted). Thereafter, the Courts of Appeals for the

Seventh and Ninth Circuits concluded otherwise: petitioners 

can satisfy the actual innocence standard’s new evidence 

requirement by offering “newly presented” exculpatory 

evidence, meaning evidence not presented to the jury at trial. 

See Gomez v. Jaimet, 350 F.3d 673, 679-80 (7th Cir. 2003); 

Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003). More 

recently, the Courts of Appeals for the First, Second, and Sixth 

Circuits have similarly suggested that actual innocence can be 

shown by relying on newly presented—not just newly 

discovered—evidence of innocence. See Riva v. Ficco, 803 

F.3d 77, 84 (1st Cir. 2015); Cleveland v. Bradshaw, 693 F.3d 

626, 633 (6th Cir. 2012); Rivas v. Fisher, 687 F.3d 514, 543, 

546-47 (2d Cir. 2012). The Court of Appeals for the Fifth 

Circuit has acknowledged but not weighed in on the circuit 

split.6 Fratta v. Davis, 889 F.3d 225, 232 (5th Cir. 2018); see

also Rozzelle v. Sec’y, Fla Dep’t of Corr., 672 F.3d 1000, 1018 

 

6 Recent Fifth Circuit decisions, however, have included 

language arguably suggesting an inclination toward a newly 

discovered standard. See Fratta, 889 F.3d at 232 n.21 (citing 

Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008), with 

a parenthetical stating that “evidence was not ‘new’ where ‘it 

was always within the reach of [petitioner’s] personal 

knowledge or reasonable investigation”); Floyd v. Vannoy, __ 

F.3d __, No. 17-30421, 2018 WL 3115935, at *7-9 (5th Cir. 

June 25, 2018) (using the phrase “newly-discovered evidence” 

in discussing fingerprint comparison evidence that existed at 

the time of trial but was neither known to the petitioner nor 

presented at trial, and holding that the evidence met the Schlup

standard).
15

n.21 (11th Cir. 2012) (refraining from reaching issue of whether 

petitioner’s evidence that was available at trial but was not 

presented should be considered “new” for purposes of Schlup). 

 

 Those courts that define “new evidence” to include 

evidence not presented at trial find support in Schlup. In 

announcing the standard for a gateway actual innocence claim, 

the Schlup Court stated that a federal habeas court, after being 

presented with new, reliable exculpatory evidence, must then 

weigh “all of the evidence, including . . . evidence tenably 

claimed to have been wrongly excluded or to have become 

available only after the trial” to determine whether no 

reasonable juror would have found the petitioner guilty. 513 

U.S. at 327-28. The reference to “wrongly excluded” evidence 

suggests that the assessment of an actual innocence claim is not 

intended to be strictly limited to newly discovered evidence—

at least not in the context of reaching an ineffective assistance 

of counsel claim based on counsel’s failure to investigate or 

present at trial such exculpatory evidence, as was the case in 

Schlup. In addition, in articulating the new, reliable evidence

requirement, the Supreme Court stated that the petitioner must 

“support his allegations of constitutional error with new 

reliable evidence—whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical 

evidence—that was not presented at trial.”7 Id. at 324. 

Moreover, the Court used the phrase “newly presented 

evidence” in the context of discussing witness credibility 

assessments that may occur as part of the actual innocence 

gateway analysis. Id. at 330. When considered in the context 

 

7 Post-Schlup, the Supreme Court clarified that credible,

actual innocence evidence was not limited to these three types 

of evidence. House, 547 U.S. at 537.
16

of the Court’s other statement about weighing all evidence—

including not only evidence unavailable at trial but also 

evidence excluded at trial—these references to evidence not 

presented at trial further suggest that new evidence, solely 

where counsel was ineffective for failing to discover or use 

such evidence, requires only that the evidence not be presented 

to the factfinder at trial. Indeed, among the new evidence 

presented by the petitioner in Schlup was an affidavit 

containing witness statements that were available at trial, see

id. at 310 n.21, but the Supreme Court did not discuss the 

significance of the evidence’s availability nor reject the 

evidence outright, which presumably it would have done if the 

actual innocence gateway was strictly limited to newly 

discovered evidence. Schlup therefore strongly suggests that 

new evidence in the actual innocence context refers to newly 

presented exculpatory evidence.8Indeed, in a subsequent 

 

8 The Schlup opinion discussed above was written by 

Justice Stevens and joined by Justices O’Connor, Souter, 

Ginsburg, and Breyer, while the four remaining justices 

dissented. Justice O’Connor, in addition to joining Justice 

Stevens’s decision, also separately concurred, stating that she 

understood the majority to hold that a petitioner “‘must show 

that it is more likely than not that no reasonable juror would 

have convicted him’ in light of newly discovered evidence of 

innocence.” 513 U.S. at 332 (citation omitted). She then 

proceeded to state that the majority did not “decide whether the 

fundamental miscarriage of justice exception is a discretionary 

remedy.” Id. at 333. Had Justice O’Connor merely joined part 

of the majority opinion, her use of “newly discovered 

evidence” would have constituted Schlup’s holding. See

Marks v. United States, 430 U.S. 188, 193 (1977) (explaining 

that “[w]hen a fragmented Court decides a case and no single 
17

decision, the Supreme Court cited Schlup for this very 

proposition, stating that “‘[t]o be credible,’ a claim of actual 

innocence must be based on reliable evidence not presented at 

trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998)

(quoting Schlup, 513 U.S. at 324).

9

 

 

rationale explaining the result enjoys the assent of five Justices, 

the holding of the Court may be viewed as that position taken 

by those Members who concurred in the judgments on the 

narrowest grounds.”). However, Justice O’Connor joined the 

majority opinion, and her separate discussion of the actual 

innocence gateway test reflects agreement with that standard, 

not any desire to narrow the majority’s construction of it. Nor 

did Justice O’Connor discuss any problems with the majority’s 

reasoning in support of the test or note any distinction between 

newly presented and newly discovered evidence. Under these 

circumstances, the fairest reading of Schlup is that the test 

articulated by the majority opinion and its reference to 

evidence not presented (at least in the context of an ineffective 

assistance of counsel claim) was indeed supported by a 

majority of the justices, and therefore binding. Moreover, 

subsequently in Calderon, Justice O’Connor joined the 

majority opinion without writing separately, and the majority 

cited Schlup for the assertion that “a claim of actual innocence 

must be based on reliable evidence not presented at trial” in 

order to be credible. Calderon v. Thompson, 523 U.S. 538, 559

(1998). 

9 The Calderon dissenters also stated that “as the Court 

realizes, our standard dealing with innocence of an underlying 

offense requires no clear and convincing proof . . . and the 

Court would be satisfied with a demonstration of innocence by 

evidence not presented at trial, even if it had been discovered, 

let alone discoverable but unknown, that far back.” 523 U.S. 
18

Our Court has not yet resolved the meaning of new 

evidence in the actual innocence context. In dicta, we have 

suggested that new evidence generally must be newly 

discovered, while at the same time recognizing an exception 

may exist when a petitioner asserts ineffective assistance of 

counsel based on counsel’s failure to discover the very 

exculpatory evidence on which the petitioner relies to 

demonstrate his actual innocence. See Houck, 625 F.3d at 94-

95 (stating that the Court was “inclined to accept the [Eight 

Circuit’s] Amrine definition of new evidence with the narrow 

limitation that if the evidence was not discovered for use at trial 

because trial counsel was ineffective, the evidence may be 

regarded as new provided that it is the very evidence that the 

petitioner claims demonstrates his innocence” but deciding to 

“stop short of applying a modified Amrine standard” and 

instead “assum[ing] without deciding” that the petitioner’s 

evidence constituted new evidence). This limited exception 

avoids an inequity that could lead to the “injustice of 

incarcerating an innocent individual.” McQuiggin, 569 U.S. at 

393. Such an inequity could occur under the following 

circumstances: say that a petitioner was convicted of a murder,

and the prosecutor had withheld a videotape depicting a 

different person committing the crime. Further assume the 

tape was not revealed until years after the trial. That petitioner 

could invoke the actual innocence gateway to pursue this 

Brady due process claim because the evidence was newly 

discovered. Now, assume the same videotape was produced to 

trial counsel and was available for use at trial, but counsel did 

not present it to the jury. Under Amrine, that petitioner would 

be forced to concede that the evidence was not new because it 

 

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

citations omitted). 
19

was available at trial, and he would be foreclosed from seeking 

relief under the actual innocence gateway. In contrast, in the 

former scenario, the same evidence, which existed but was 

unknown to the petitioner, would be deemed new evidence that 

could support the actual innocence gateway. 

As the Gomez court stated, “in a case where the 

underlying constitutional violation claimed is ineffective 

assistance of counsel premised on a failure to present [such] 

evidence, a requirement that the new evidence be unknown to 

the defense at the time of trial would operate as a roadblock to 

the actual innocence gateway.” 350 F.3d at 679-80. To 

overcome this roadblock, we now hold that when a petitioner 

asserts ineffective assistance of counsel based on counsel’s 

failure to discover or present to the fact-finder the very 

exculpatory evidence that demonstrates his actual innocence, 

such evidence constitutes new evidence for purposes of the 

Schlup actual innocence gateway.

The approach we adopt is consistent with Schlup and 

the rulings of many of our sister circuits. Moreover, it

recognizes that “the injustice that results from the conviction 

of an innocent person has long been at the core of our criminal 

justice system.” Schlup, 513 U.S. at 325. Indeed, “the 

conviction of an innocent person [is] perhaps the most grievous 

mistake our judicial system can commit,” and thus, the 

contours of the actual innocence gateway must be determined 

with consideration for correcting “such an affront to liberty.” 

Satterfield v. Dist. Att’y Phila., 872 F.3d 152, 154 (3d Cir. 

2017). The limited approach we adopt to evaluate new 

evidence to support an actual innocence gateway claim, where 

that claim is made in pursuit of an underlying claim of 

ineffective assistance of counsel: (1) ensures that reliable, 
20

compelling evidence of innocence will not be rejected on the 

basis that it should have been discovered or presented by 

counsel when the very constitutional violation asserted is that 

counsel failed to take appropriate actions with respect to that 

specific evidence; and (2) is consistent with the Supreme 

Court’s command that a petitioner will pass through the actual 

innocence gateway only in rare and extraordinary cases. 

Schlup, 513 U.S. at 324.

10

 

C

Here, the Magistrate Judge’s report and 

recommendation and the District Court’s decision adopting 

that report both understandably concluded that exculpatory 

evidence available to, but not presented by, Reeves’s trial 

counsel—such as the evidence concerning alternative 

suspects—was not new evidence for purposes of the actual 

innocence gateway.11 They therefore did not proceed to 

 

10 The Eighth Circuit’s approach in Amrine and the 

Fifth Circuit’s seemingly contrary approach in Floyd and 

Fratta are unpersuasive, as those courts provided no reasoning

to support their narrower constructions of “new evidence.” 

11 The Magistrate Judge relied on three Third Circuit 

opinions, Hubbard, Goldblum, and Sistrunk, as support for this 

conclusion that exculpatory evidence available to trial counsel 

but which counsel failed to present at trial did not constitute 

new evidence. However, “[t]he ‘new’ evidence Hubbard puts 

forth in alleging actual innocence is nothing more than a 

repackaging of the record as presented at trial.” Hubbard v. 

Pinchak, 378 F.3d 333, 341 (3d Cir. 2004). As the Magistrate 

Judge acknowledged, we assumed for purposes of the appeal 

in Goldblum that the pathologist’s report was new, reliable 
21

determine the reliability of the evidence or consider whether

such evidence, assessed with all the rest of the evidence 

adduced at trial, would more likely than not convince any 

reasonable juror not to convict Reeves. In light of their view 

that Reeves failed to satisfy the actual innocence gateway 

standard, they also did not reach the merits of Reeves’s

ineffective assistance of counsel claim. Because we hold that 

under the circumstances presented here, the Kai Anderson 

evidence is “new,” given that it was known but not presented 

allegedly due to his counsel’s ineffective assistance, we will 

vacate the District Court’s order and remand. If on remand the 

District Court concludes that this new evidence is reliable, then 

it should proceed to undertake a holistic assessment of the new, 

reliable evidence and the evidence presented at trial to 

determine whether Reeves has shown it is more likely than not 

that no reasonable juror would have convicted him. If Reeves 

makes this showing, then the District Court should review his

ineffective assistance of counsel claim on the merits under the 

applicable AEDPA standard of review. 

III

For the reasons above, we will vacate the District 

Court’s order and remand for further proceedings consistent 

with this opinion.

 

evidence, Goldblum, 510 F.3d at 226. Finally, Sistrunk did not 

characterize the petitioner’s federal habeas claims as based on 

the alleged ineffective assistance of counsel who failed to 

discover or present to the fact-finder the exculpatory evidence 

demonstrating his actual innocence. See Sistrunk, 674 F.3d at 

185-87. 
1

McKEE, Circuit Judge, Concurring.

I agree with my colleagues’ conclusion that evidence 

defense counsel was aware of, but failed to present, can 

satisfy the new evidence requirement of Schlup v. Delo.1

However, I write separately to emphasize the weight of the 

evidence that supports Reeves’s claim of actual innocence, 

and the questionable nature of the investigation that resulted 

in the conviction of someone who may well have languished 

in a prison cell for eight years for a murder that was most 

probably committed by someone else. 

The circumstances leading to Reeves’s conviction are 

summarized in my colleagues’ thoughtful opinion along with 

much of the evidence that supports his claim of actual 

innocence. Indeed, the case in support of Reeves’s claim of 

actual innocence is so substantial that a group consisting of 

retired federal judges, former federal prosecutors, and a 

former member of the Office of the Pennsylvania Attorney 

General’s Office, has filed an amicus brief on his behalf.2 

Yet, as I shall discuss, for some inexplicable reason, police 

simply refused to follow even the most obvious leads that did 

not confirm their suspicion that Reeves was the killer. They 

did eventually obtain a confession from Reeves. However, 

given the totality of the circumstances here, that confession 

does not negate his claim of actual innocence. 

I.

 

1 513 U.S. 298, 324 (1995).

2 See Brief for Former Prosecutors, et al. as Amici 

Curiae Supporting Reeves 1.
2

Shortly after the May 25th, 2006 robbery of the City 

Gas & Diesel described in the majority opinion, Jerry Reeves, 

who was then just eighteen years old, was arrested at a city 

park in Harrisburg, Pennsylvania. He was not arrested 

because police suspected him of being involved in the fatal 

robbery of City Gas & Diesel. Rather, he was arrested for 

throwing a rock onto a miniature golf course and hitting

someone in the leg. While in his jail cell, Reeves was 

approached by Officer Derek Fenton. Fenton did not 

approach Reeves based on any suspicion that Reeves was 

involved in the fatal shooting. Rather, Fenton fancied himself

a bit of a sleuth and prided himself on his ability to ferret out 

information. He testified that he went to Reeves in his jail 

cell because he, Fenton, believed himself to have “an 

excellent rapport with our detective division for the 

intelligence [he was] able to gather.”3 In Fenton’s words, he 

approached Reeves because: “You don’t know until you try 

and anyone you encounter on the street, you just strike them a 

conversation.”4 Reeves, who had been adopted out of foster 

care, and had a history of lying, was eager to get out of jail 

and go home for a family cookout the next day. Thus, 

Fenton’s instincts appeared to pay off.

Reeves told Officer Fenton that he had witnessed the 

robbery from across the street. He even identified the robber. 

Reeves told Fenton that the robber was a man named 

Jermaine Taylor, who was six feet tall with brown skin. 

Reeves would later testify at his trial that that was a lie. The 

police had apparently told Reeves that if he “had info they 

 

3 App. 307.

4

Id. at 306.
3

would let [him] out,” and Reeves wanted to be released so he 

could get home in time for the aforementioned cookout.5 He 

testified: “I ha[d] not seen my family in a while, so I wanted 

to see them.” “That is why I lied.”6 As promised, the police 

released him after the conversation with Officer Fenton and 

he attended his family’s cookout. 

In the meantime, a “very excited” Officer Fenton 

notified the detective bureau.7 Fenton told Detective 

Christopher Krokos, the lead detective on the City Gas & 

Diesel homicide, about Reeves’s story. Krokos 

understandably followed up by contacting Reeves who agreed 

to come to the police station to be interviewed on May 30th, 

five days after the robbery. Once more, Reeves repeated that 

a six-foot-tall, brown-skinned, Black male named Jermaine 

Taylor had been the robber. This time he added a detail that 

police knew was not true. Even though the surveillance video

depicted the shooter leaving the scene alone and on foot, 

Reeves stated that he had seen the robber run out of the store 

and get into a dark-colored Buick with lightly tinted windows 

and three other passengers. 

Detective Krokos would later write in his daily report

that Reeves’s adoptive father, Terrie Reeves, had informed 

the detective that Reeves had admitted to lying about 

witnessing the robbery. Krokos also noted in his report that 

 

5

Id. at 318.

6

Id. at 318.

7

Id. at 307-08.
4

Reeves’s father had cautioned Reeves not to lie again to the 

police.8

Nevertheless, at this point, Krokos confronted Reeves 

about his untruthfulness. Reeves then revised his story and 

said that he had heard the shooting but had not actually seen 

it. To make things worse for Reeves, he admitted that 

Jermaine Taylor, the man he claimed had been the robber, 

“was someone he made up,” and that “none of the 

information he gave [Krokos] was true.” Reeves’s admission 

that he had been lying clearly gave police reason to suspect 

that he might have been involved. As a result of that 

admission, Reeves was charged with hindering apprehension, 

and the investigation continued. 

Police had already received a number of leads pointing 

in a different direction that should have, at the very least, 

cautioned against myopically focusing on Reeves. The very 

same day of the robbery, staff at the county work-release 

center in Harrisburg had informed police that two workrelease clients—Kai Anderson and Michael Holmes—had

escaped the night of the robbery. Anderson fit the description 

of the robbery suspect, and the work-release staff told police 

that it was “very coincidental” that Anderson and Holmes 

escaped the same night the robbery occurred. The workrelease staff also provided police with photos and information 

about Anderson to aid in pursuing him. 

 

8 Officer Fenton, Detective Krokos and Terrie Reeves 

were not the only individuals to have witnessed Reeves lying. 

His foster care reports described him as “deliberately 

untruthful” as a child and “often untruthful . . . to avoid what 

would be minimal consequences.” 
5

Next, Kimberly Clark, the grandmother of Anderson’s 

child, had independently called police to tell them that 

Anderson had been making minute-long calls to her daughter, 

Danielle Ignazzito, several times a day and had been “act[ing] 

mysterious[ly].”9 Clark also reported that Anderson had told 

Ignazzito that “he’s on the run and or is wanted.”10 

Then came a third tip about Anderson. Ignazzito, 

Clark’s daughter and the mother of Anderson’s son, had 

initially been “afraid” to give police information about 

Anderson’s whereabouts.11 But on May 29th, just four days 

after the robbery, Ignazzito told police that Anderson had 

called her several times to say that he had a lot of money to 

give her for their child. Ignazzito said she had also spoken to 

Kenneth Marlow, a friend of Anderson’s. Marlow told her 

that Anderson was in trouble, that Anderson had fled to Ohio 

with Michael Holmes (who had escaped from the workrelease center with Anderson), and that Anderson was being 

sought by police in connection with the City Gas & Diesel 

homicide. 

Six days after the robbery, police arrested Anderson

for escaping from the work-release center. Detective Krokos 

took the opportunity to interview Anderson, just as he had 

interviewed Reeves a few days earlier. The interview was 

unfruitful. Anderson confirmed that he had escaped from the 

work-release center but denied any involvement in the 

robbery. He did, however, confirm that he had asked Marlow 

 

9 App. 137.

10 Id. 

11 Id.
6

to call Ignazzito, just as Ignazzito had told Krokos. Yet it is 

not clear if he also confirmed that he had expressed concern 

about being connected to the robbery, as Ignazzito had 

reported. Anderson did admit that he had been “in the area of 

Linden St[.] and Walnut St.”—just a few blocks away from 

the City Gas & Diesel—on the night of the robbery.

12

 He 

also said that he had encountered the real robber there and 

actually heard that person confess to the crime. Despite 

information placing him near the crime scene, and the three 

independent tips at least suggesting that further investigation 

into Anderson was warranted, it does not appear that 

suspicion ever turned from Reeves to Anderson (or to anyone 

else). 

Then came a fourth tip. A week after interviewing 

Anderson, Detective Krokos interviewed Marlow. Marlow 

admitted calling Ignazzito on Anderson’s behalf, as Ignazzito 

had reported, and to telling Ignazzito that Anderson was on 

the run. Marlow also said that Anderson was “involved in the 

robbery/homicide at the City Gas & Diesel on State St.”13

Marlow even told Krokos that he heard Anderson admit his 

involvement. According to Marlow, Anderson had said that 

he (Anderson) “got a gun[,] went to the gas station[,] and shot 

the dude and robbed him.”

14

Thus, Detective Krokos now had information 

implicating Anderson from not two, not three, but four

sources—the work-release center staff, Clark, Ignazzito, and 

now Marlow. Yet, for reasons that are not at all clear on this 

 

12 Id. at 159.

13 Id. at 165.

14 Id. at 82.
7

record, the investigation continued to focus on Reeves. There 

is more.

Approximately a month after the robbery, another 

witness, Johnathan Johnston, came forward. Johnston and 

Anderson had known each other for over fifteen years and 

had reunited at Dauphin County Prison after Anderson’s 

arrest for escaping from the work-release center. Johnston 

told Krokos that Anderson had admitted involvement in the 

City Gas & Diesel robbery while they were in the County 

Prison. Johnston’s statement about Anderson’s confession 

should have been taken particularly seriously because, unlike 

the stories that Reeves gave Krokos, Anderson’s purported 

statements to Johnston included subtle details about the 

robbery, many of which were unknown to the public.15 

 

15 According to Johnston’s statement, Anderson said 

he was “show[n]” the surveillance tape of the robbery during 

his interview with police. App. 93-94. The police report of 

Anderson’s interview does not confirm that claim, nor does it 

suggest that any such viewing took place. However, the 

police reports indicate that police also showed the video to 

Xavier Henry, who had been identified as one of the City Gas 

& Diesel customers on the night of the robbery. Police did so 

in an attempt to identify Derrick Small, the only customer 

present in the City Gas & Diesel store when the robber 

entered. There is nothing in the record to establish any 

similar reason for showing the video to Anderson, who, as far 

as we know, had no information to identify Small or any 

other customer. Nor is it clear what portions of the video, if 

any, Anderson might have seen. The video is divided into 

multiple parts with footage from differing cameras both 

inside and outside of the store. 
8

Specifically, Johnston said that Anderson had told him that 

(1) the shooter needed to be small enough to fit through the 

gap in the bullet-proof glass window to get to the other side 

of the counter; (2) the shooter was wearing all black; and (3) 

the shooter left the store on foot heading west. Johnston’s

statements to Krokos contained other indicia of reliability: 

Johnston knew that Anderson had admitted his involvement 

to Marlow, and that Marlow had repeated Johnston’s

inculpatory statement to Ignazzito. 

Johnston told Krokos something else that the detective 

inexplicably ignored. According to Johnston, “[Anderson] 

knew he could beat [the evidence in the surveillance video]

he just need somebody talk to [Ignazzito] so she can, don’t 

say nothing and get scared because the cops already tried to 

scare her.”16 Indeed, Johnston said that Anderson had also 

asked him (Johnston) to have his wife threaten Ignazzito not 

to give the police any more information about Anderson and 

the City Gas & Diesel homicide. Finally, Johnston said that 

Anderson told him that after “the gun went off[,] the [clerk] 

fell then got back up and he fell again.”17 That detail was 

visible in surveillance videos of the crime, but had not been 

made public. Again, for reasons that are not at all apparent 

on this record, Krokos failed to pursue Anderson as a suspect, 

and the investigation began to “stall.”18 

 

16 App. 94.

17 Id. at 97.

18 Krokos conducted an interview with Michael 

Holmes in March of 2007, some nine months after the crime, 

but Holmes admitted only that he and Anderson had left the 

work-release center before the homicide. Holmes denied 

having ever even been in the City Gas & Diesel. 
9

Despite information that directly implicated Anderson 

and despite the police learning that Anderson knew subtle 

details about the robbery, the investigation appears to have 

simply gone dormant for three years. Then, serendipity 

unfortunately placed Reeves in Detective Krokos’s crosshairs 

yet again. In July of 2009, Reeves, who was now twenty-one 

years old, had been arrested with his girlfriend after an 

incident at a bar. Upon learning of Reeves’s arrest, and 

despite all of the evidence pointing toward Anderson, Krokos 

took the opportunity to speak with Reeves once more about 

the City Gas & Diesel robbery.19 At his trial, Reeves testified 

that he agreed to be interviewed again because he wanted to 

keep his pregnant girlfriend—with whom he had been 

arrested—from going to prison and was told that the officers 

would “see what they could do” if he talked to them.20 

Reeves offered the same story about having witnessed 

the crime that he had given Krokos three years earlier. 

However, this time Reeves said that two men, not one, had 

robbed the store and that Reeves’s own cousin had stood 

outside as a lookout. Again, Krokos pressed Reeves on his 

lack of truthfulness. The video showed that only one man 

had robbed the store. Reeves responded by changing his 

story yet again. This time, he stated he was not actually 

across the street when he saw the shooting, but was in a 

parking lot near the payphone; that he spoke to his cousin 

about the imminent plan to rob the store; and that it was an 

unknown male who actually went inside. The questioning 

continued until Reeves finally asked, “[W]hat if I was in the 

 

20 App. 387-88.
10

store when it happened then what[’]s that?”21 The police 

report states: 

Reeves was confronted with the fact 

that if other people are involved they may talk 

to us about the incident. He was asked what 

[are Reeves’s cousin and the other individual 

Reeves named] going to say if asked about 

this incident? Reeves stated that they will say 

that it was me who did it. Reeves then began 

to become concerned that he would not see his 

unborn child if he told us what occurred. 

Reeves was further questioned.

Reeves then began to visibly shake and tremble. He 

began to cry.22 Then Reeves “confessed.” He said that he 

robbed the store because he needed money; that he knew the 

people in the store because he used to sweep the floors for 

them; that he got a gun but that he did not know the make or 

caliber; and that he had been given the gun the same day by 

someone in Baltimore, Maryland. 

Reeves then provided details on the robbery, many of 

which were prompted by leading questions from Krokos and 

his team. They posed questions to confirm that, like the 

robber in the video, Reeves had also jumped over the counter:

Q. . . . Do you remember did you jump 

up or do anything in the store?

 

21 Id. at 198.

22 Id. 
11

A. I think I jump behind the counter.23

They asked questions to corroborate the fact that bullet-proof 

plastic separated the robber from the clerk:

Q. Okay what was separating customers 

from behind the register?

A. Glass[.]

Q. Was it glass or plastic or?

A. Probably bullet proof plastic or 

something.24

They verified that Reeves’s gun matched the gun used: 

Q. And describe the gun again what 

color was it?

A. All black[.]

Q. And it was a semi-automatic not a 

revolver.

A. Semi-automatic yes.25

They asked Reeves to specify that he had acted alone:

Q. And just, just so we’re clear you 

were the only one involved in this there was 

nobody else involved in this incident?

A. No not at all.26

 

23 Id. at 106.

24 Id. 

25 Id. at 108.

26 App. 113.
12

And they repeatedly pressed Reeves on whether he had worn 

something to disguise his face, as the robber had done in the 

video:

Q. Okay so what are you wearing when 

you go in the store?

A. Black, black pants, black t-shirt. 

Q. Are you wearing a mask? Do you 

remember?

A. No I don’t remember if I had a mask 

on or not probably, probably did, no I didn’t 

have a mask on.

Q. You didn’t have a mask on?

A. No[.]

A. Did you have gloves?

Q. I think so, I think so probably. 

. . . 

Q. Q. Did [the store clerk] recognize 

you?

A. Most likely yes. He seen me plenty 

of times before that so if I wasn’t wearing a 

mask yes.

Q. [S]o what you’re saying is you don’t 

remember whether or not you were wearing . . . 

A. [INAUDIBLE] masks or gloves that 

night.

Q. Okay, those are the two things you 

don’t remember whether or not you were 

wearing that night.
13

A. Yes[.] 

Q. Just for the tape I’m not sure it got ah 

on there clearly, you don’t remember if you 

were wearing a mask or gloves?

A. No[.]

27

Despite obtaining what purported to be a confession, 

Krokos either ignored or did not credit some rather 

remarkable discrepancies between Reeves’s account and the 

actual facts of the robbery. Reeves said that he struggled with 

the clerk before the shooting. Yet the surveillance video 

shows that the clerk and the robber never even touched one 

another.

28

 Reeves said he ran towards Boas Street, which is 

north of the City Gas & Diesel, while the actual robber 

headed in a westerly direction, according to the surveillance 

video. Reeves also said he did not remember if he had gotten 

anything from the store after firing the gun, though the real 

robber left with a bag full of money from the cash register. 

Finally, Reeves said the gun he used “looked like a []9” 

millimeter,29 which is the same caliber as a .357, but the 

actual gun used was a much smaller, .25 caliber. 

Most significantly, in the video, the shooter appears to 

be right-handed. He removed the pistol from the front of his 

pants with his right hand then brandished it in his right hand. 

 

27 Id. at 105, 112.

28 The clerk simply attempted to close the bullet-proof 

window separating the check-out counter from the customer 

area before the robber could point the gun through the 

window’s opening. 

29 Id. at 108.
14

He switched the gun to his left hand only after the clerk had 

been shot and he needed his right hand to finish taking money 

from the register and from the floor. Once he had collected 

the money, he used his right hand to jump back over the 

counter. It is uncontested that Reeves is left-handed, and he 

has offered affidavits from people who knew him as a child to 

corroborate that.30

Of course, police may not have noticed that Reeves 

was left-handed during the numerous times they interacted 

with him and it would have been understandable to simply 

assume, absent a reason to suspect otherwise, that he was 

right-handed. This is particularly true in light of his 

confession and his prior interviews, which continuously 

resulted in what can only be described as false exculpatory 

statements. 

However, as I have already detailed, police had to 

ignore several leads to even get to the point of Reeves’s 

confession three years after the fatal robbery. These leads 

included evidence that Anderson had admitted his 

involvement in the crime to two people; that he had suddenly 

come into a significant sum of money; that he had escaped 

from the work-release center on the night of the robbery; and 

that he had been in the vicinity of the robbery that night. 

Anderson had also tried to have someone threaten Ignazzito

to keep her from saying anything more about his involvement 

in the robbery, and he had made statements revealing a detail 

 

30 Reeves offered testimony at trial that he was lefthanded, but his trial counsel never offered evidence to 

corroborate that fact. Given his confession, the jury most 

likely simply discredited his uncorroborated testimony. 
15

about the robbery not known to the general public. Yet, 

during the three-year lapse in this investigation, it does not 

appear that police did anything to pursue the evidence of 

Anderson’s involvement before initiating the discussion with 

Reeves that ultimately led to the statement that resulted in his 

conviction for the fatal robbery. Given this record, as I noted 

at the outset, Reeves’s apparent confession does not negate 

the claim of actual innocence based on newly discovered 

evidence under Schlup v. Delo.

31

Reeves would not be the first person to have falsely 

confessed to a crime.32 According to the National Registry of 

Exonerations, roughly half of individuals who have been 

exonerated following murder convictions involving DNA 

 

31 513 U.S. at 324. I do not suggest that evidence of 

actual innocence must always be as strong as we have on this 

record before relief is available under Schlup v. Delo. Indeed, 

it can only be hoped that the kind of investigation that led to 

Reeves’s confession, despite the strong evidence of someone 

else’s guilt, will be exceedingly rare. Although the bar set by 

Schlup is a high one, it should not be raised so high that it 

becomes impossible to clear it. Nothing in Schlup leads me 

to conclude that the Court intended the interests of justice 

advanced by that case to be illusory in all but the most 

outrageous and extreme cases or that the accused must be 

able to prove actual innocence to a near mathematical 

certainty. 

32 During oral argument, counsel for Reeves was asked 

about the reported frequency of exonerations following false 

confessions. He subsequently submitted a reply pursuant to 

Fed. R. App. P. 28(j). See Appellant’s May 28, 2018 Rule 

28(j) Letter.
16

evidence in the United States since 1989, made a false 

confession.33 In Pennsylvania, the rate of false confessions is 

comparable. Nearly half of individuals who have been 

exonerated with DNA evidence following a conviction for 

murder in Pennsylvania had confessed to those murders.

34

 

 

33 Compare Murder Exonerations in the U.S., The 

National Registry of Exonerations, 

http://www.law.umich.edu/special/exoneration/Pages/Exoner

ations-in-the-United-States-Map.aspx (click “Murder” in 

“Crime” field; click “Present” button in the “DNA” field) 

with Murder Exonerations in U.S. with False Confessions, 

http://www.law.umich.edu/special/exoneration/Pages/Exoner

ations-in-the-United-States-Map.aspx (click “Murder” in 

“Crime” field; click “Present” button in “False Confession” 

field; click “Present” button in the “DNA” field). As of May 

28, 2018, nationally, the Registry has recorded 195

individuals that were convicted of murder in cases involving 

DNA evidence and that have since been exonerated. Of those 

exonerees, 43 percent, or 84 individuals, gave false 

confessions. These statistics were supplied by counsel in his 

May 28, 2018 Rule 28(j) letter. See supra note 8; Appellant’s 

May 28, 2018 Rule 28(j) Letter 1-2.

34 Compare Murder Exonerations in Pennsylvania, The 

National Registry of Exonerations, 

http://www.law.umich.edu/special/exoneration/Pages/Exoner

ations-in-the-United-States-Map.aspx (click “Pennsylvania” 

on interactive map; click “Murder” in “Crime” field) with 

Murder Exonerations in Pennsylvania with False Confessions, 

http://www.law.umich.edu/special/exoneration/Pages/Exoner

ations-in-the-United-States-Map.aspx (click “Pennylvania” 

on interactive map; click “Murder” in “Crime” field; click 

“Present” button in “False Confession” field; click “Present” 
17

In referring to this data, I do not, of course, suggest 

that police should have completely ignored Reeves’s 

confession. Rather, I refer to it simply to underscore that 

Reeves’s confession does not negate his arguments under 

Schlup. I have already noted that absent the detective’s 

inexplicable failure to pursue leads pointing to Anderson and 

the equally puzzling three-year gap in this investigation, there 

would have been no incriminating statement from Reeves.

II.

Reeves has now spent eight years in prison for this 

armed robbery and murder conviction, a fact that will 

hopefully inform the speed with which subsequent courts 

address his now likely procedurally-cognizable habeas claim. 

 

button in the “DNA” field). The Registry has recorded 9

individuals that were convicted of murder in Pennsylvania

and have since been exonerated in cases that involved DNA 

evidence. Of those exonerees, 44 percent, or 4 individuals, 

gave false confessions. 

As Brandon L. Garrett writes, there is a “new 

awareness among scholars, legislators, courts, prosecutors, 

police departments, and the public that innocent people 

falsely confess, often due to psychological pressure placed 

upon them during police interrogations.” Garrett, The 

Substance of False Confessions, 62 Stan. L. Rev. 1051, 1052-

53 (2010). Reeves’s “trembl[ing],” tear-filled confession 

certainly bore the markings of such psychological distress. 

App. 198. He even attempted suicide in his cell just prior to 

having given the confession.