Thus far, the Supreme Court has held in abeyance the two-part question of whether "a truly persuasive demonstration of actual innocence made after [a state] trial would render the execution a defendant unconstitutional, and warrant federal habeas relief." In August 2009, the Supreme Court transferred to the U.S. District Court for the Southern District of Georgia Davis's habeas petition which raises these very questions. The District concluded that the constitutional right exists; however, it determined that the facts of Davis's case do not warrant habeas relief. The Circuit Court, like the District Court, concluded that only the Supreme Court could review the District Court's determinations. On March 28, 2011, the Supreme Court declined to review the lower court opinion. At the same time, it denied petitions for writs of certiorari and habeas corpus, leaving for another day the underlying question. Davis was convicted of murder, obstruction of a police officer, aggravated assault, and possession of a firearm during the commission of a felony. The murder victim was a police officer, moonlighting in his police uniform as a bus station security guard, who was shot when he responded to a disturbance outside a fast food restaurant next to the bus station. The jury found two aggravating factors—murder of a police officer in the performance of his duty and murder committed after first wounding the victim—and Davis was sentenced to death. The Georgia Supreme Court affirmed his conviction and sentence and subsequently affirmed the denial of his petition for post conviction relief under Georgia law. Davis then petitioned the federal district court for habeas relief, based on newly discovered evidence, on the grounds that the trial prosecutor had knowingly presented false testimony; that the prosecutor had failed to disclose material exculpatory evidence; and that his trial lawyer had been constitutionally ineffective. He also asserted his actual innocence as an exception to the procedural default rule that bars habeas relief for claims which the state courts have not be given an opportunity to resolve. The district court rejected his constitutional claims. The court of appeals affirmed. Davis then petitioned the Georgia courts for a new trial based on recantations of seven of the witnesses at trial, statements of witnesses who had not testified at trial, and evidence indicating another man committed the murder. The Georgia Supreme Court affirmed the denial of his petition. Four members of the Court, however, dissented, in the belief that in considering whether a new trial should be granted the majority had "weighed [Davis's new] evidence too lightly." Davis next sought the approval of the federal court of appeals to file a second federal habeas petition arguing that he merited federal habeas relief because he is actually innocent of the murder for which he was convicted. A divided panel denied his application. In the eyes of the majority, he had failed to overcome either of the two requirements necessary for the presentation of a second habeas petition. First, the evidence in support of his claim was either not new or at least not newly discoverable as required in the habeas statute, 28 U.S.C. 2244(b)(2)(B)(i)("facts that could not have been discovered previously through the exercise of due diligence"). Second, in the mind of the majority, Davis's application was insufficient both as a matter of weight and for want of a constitutional error under the standard of 28 U.S.C. 2244(b)(2)(B)(ii)("sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense"). It did point out that Davis was free to file an original habeas petition with the Supreme Court. The dissenting member of the panel argued that the application to permit a second habeas petition should be granted when a death row inmate makes a viable claim of actual innocence. After Davis filed his petition with the Supreme Court, the Court transferred his petition for habeas relief to the United States District Court for the Southern District of Georgia with instructions to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence." The district court also understands that it, "could determine that portions of the Anti-terrorism and Effective Death Penalty Act ('AEDPA') do not apply to Habeas Corpus Petitions filed under the Supreme Court's original jurisdiction or that AEDPA cannot preclude a Petitioner from bring a claim of 'actual innocence.'" The understanding flows not from the language of the Supreme Court's transfer order itself, but apparently from the language of Justice Steven's concurrence which accompanies the order. Justice Stevens suggested three avenues to relief in response to Justice Scalia's dissenting quip that the transfer sends the district court on a "fool's errand"—it has been instructed to probe the evidence of Davis's innocence but must conclude that habeas relief is barred in another event. Not so, wrote Justice Stevens: Justice Scalia assumes as a matter of law that, '[e]ven if the District Court were to be persuaded by Davis's affidavits, it would have no power to grant relief' in light of 28 U.S.C. §2254(d)(1) [relating to the binding effect of state court determinations of law unless contrary to, or an unreasonable application of, clearly established federal law]. For several reasons, however, this transfer is by no means 'a fool's errand.' The District Court may conclude that §2254(d)(1) does not apply, or does not apply with the same rigidity, to as original habeas petition such as this. The court may also find it relevant to the AEDPA analysis that Davis is bringing an 'actual innocence' claim. Even if the court finds that §2254(d)(1) applies in full, it is arguably unconstitutional to the extent it bars relief for a death row inmate who has established his innocence. Alternatively, the court may find in such a case that the statute's text is satisfied, because decisions of this Court clearly support the proposition that it would be an atrocious violation of our Constitution and the principles upon which it is based to execute an innocent person. In re Davis, 130 S.Ct. at 1-2 (Stevens, J., concurring) (internal and quotation marks citations omitted). The district court also begins with the belief that section 2244(b)'s jurisdictional bar on second or successive habeas petitions does not apply to petitions filed originally with the Supreme Court. The Judiciary Act of 1789, which established the federal court system, declared that "all the before mentioned courts of the United States [, the Supreme Court, circuit courts, and district courts] shall have power to issue writs of ... habeas corpus.... And that either of the justices of the supreme court, as well as judges of the district courts shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment." In 1867, Congress substantially increased the jurisdiction of federal courts to issue the writ by authorizing its issuance "in all cases," state or federal, "where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." At the same time, Congress modified and codified much of the procedure associated with the writ. The expansion included a clarification of the Supreme Court's appellate jurisdiction over the habeas decisions of the lower federal courts other than military prisoners. Notwithstanding the exception for prisoners held under military authority, the first case to come before the Court under its new appellate authority involved William McCardle, a Mississippi newspaper editor, arrested by military authorities for trial by a military commission under the reconstruction laws on charges of inciting "insurrection, disorder and violence." His petition for a writ of habeas corpus was denied by the federal circuit court, and he appealed to the Supreme Court. The government moved to dismiss the appeal on the ground that appeal had been expressly excluded in cases involving Confederate sympathizers held in military custody. The Court denied the motion—because the military custody exception applied only to the expansion of habeas afforded by the 1867 Act while McCardle called upon the pre-existing habeas authority of the Judiciary Act of 1789—and set the case for argument, Ex parte McCardle , 73 U.S.(6 Wall.) 318 (1868). But before the case could be decided on its merits, Congress repealed the law vesting appellate jurisdiction in the Court. Its jurisdiction to decide the appeal having been withdrawn, the Court dismissed the appeal for want of jurisdiction, Ex parte McCardle , 74 U.S.(7 Wall.) 506 (1868). In doing so, however, the Court made it clear that the loss of its jurisdiction to hear appeals in habeas cases did not mean the loss of its ability to review lower court habeas decisions altogether. The review available prior to the 1867 Act remained available just as the Court had described in its earlier McCardle case: But, though the exercise of appellate jurisdiction over judgments of inferior tribunals was not unknown to the practice of this court before the act of 1867, it was attended by some inconvenience and embarrassment. It was necessary to use the writ of certiorari in addition to the writ of habeas corpus , and there was no regulated and established practice for the guidance of parties invoking the jurisdiction, 73 U.S.(6 Wall.) at 324. The Court reexamined and confirmed this view the following year when it concluded that it had jurisdiction under writs of habeas corpus and certiorari to review the case of another Mississippi newspaper man held by military authorities. The 1868 Act repealed appellate jurisdiction vested in the Court by the 1867 Act. The 1868 Act did not repeal any of the provisions of the Judiciary Act of 1789; the Court's earlier authority to review habeas cases from the lower federal courts through writs of habeas corpus, aided by writs of certiorari, remained available, Ex parte Yerger , 75 U.S.(8 Wall.) 85 (1869).