Lott v. Bagley

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 8, 2008
• Docket: 05-4336
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0283p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

X Petitioner-Appellant, - GREGORY LOTT, - - - Nos. 05-4336; 07-4294 v. , > MARGARET BAGLEY, Warden, - Respondent-Appellee. - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 95-02642; 04-00822—Kathleen McDonald O’Malley, District Judge. Argued: June 11, 2008 Decided and Filed: August 8, 2008 Before: BOGGS, Chief Judge; MERRITT and COLE, Circuit Judges. _________________ COUNSEL ARGUED: Gregory W. Meyers, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Sarah A. Hadacek, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Gregory W. Meyers, Melissa J. Callais, Robert K. Lowe, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Sarah A. Hadacek, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Michael L. Collyer, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. _________________ OPINION _________________ MERRITT, Circuit Judge. The present question before us in this habeas corpus, murder case, in which Ohio has imposed the death penalty, is whether the trial and post-conviction evidence would now convince a reasonable factfinder that Lott is innocent of the crime. We agree with District Judge O’Malley that the new evidence of prosecutorial wrongdoing does not undermine the finding of guilt, which means that Lott may not proceed with his otherwise procedurally defaulted claim that the State violated his due process rights by failing to turn over certain “exculpatory” information in violation of Brady v. Maryland, 373 U.S. 83 (1963). Hence, we affirm the judgment for the State.

1 Nos. 05-4336; 07-4294 Lott v. Bagley Page 2

We have written three previous opinions in this case during the last seven years. Lott v. Coyle, 261 F.3d 594 (2001); In re: Gregory Lott, 366 F.3d 431 (2004); In re: Gregory Lott, 424 F.3d 446 (2005). The first opinion recited the gruesome facts and affirmed the denial of Lott’s habeas corpus petition on all issues except Lott’s actual innocence, “gateway” claim brought under the legal theory set out in Schlup v. Delo, 513 U.S. 298 (1995). According to Schlup, a petitioner may advance a procedurally defaulted claim if he is able to show “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327. We did not resolve the Schlup issue in our first opinion because we noted that “this issue may now be pending in the state court and has not been fully briefed before us.” 261 F.3d 621. In an abundance of caution, given that this is a death penalty case, we addressed this issue in our second opinion and issued an “order authorizing the district court to consider [a] second [habeas] application for a Brady, actual innocence, gateway claim.” 366 F.3d 431-34. In the third opinion, we resolved an issue regarding the attorney-client privilege raised by Lott “in the midst of litigating his second habeas corpus proceeding” concerning the actual innocence claim. The issue, as explained in earlier opinions, turns on the application of Schlup v. Delo and § 2244(b)(2): A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless — .... (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be 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. Lott concedes that his legal counsel knew of the facts constituting his Brady exculpatory evidence claim by February of 1992. In fact, he admits that his “counsel intentionally committed malpractice by deciding to deliberately bypass Ohio’s courts.” He explains: “Acting under the old school strategy of ‘deliberate bypass,’ Baich [Lott’s prior counsel] hid this evidence from state courts for fear that he would lose in 1what was perceived as a hostile forum, hoping instead to play this winning hand in federal court.” Petitioner’s Brief, Lott v. Bagley (filed May 5, 2008). It is difficult to read these statements by Lott’s present counsel as anything other than an admission that Lott’s previous post-conviction counsel failed to meet the “due diligence” requirement of § 2244. Even if he were able to meet the due diligence requirement of § 2244, Lott has been unable to advance facts that establish that it is more likely than not that he is actually innocent of the aggravated murder of his aged victim. As a result, he may not advance his procedurally defaulted claim that the State committed a Brady violation. In her thorough and comprehensive opinion of September 28, 2007, District Judge O’Malley rejected Lott’s gateway actual innocence claim, leaving no stone unturned in her analysis of the facts and the application of the law of procedural default and actual innocence. We attach her findings and conclusions on this issue as Exhibit 1 to this opinion and incorporate them by reference as our reasons for rejecting Lott’s Schlup actual innocence claim and for affirming the judgment of the District Court. For the full opinion see Lott v. Bagley, No. 1:04-CV822, 2007 U.S. Dist. LEXIS 91762 (N. D. Ohio Sept. 28, 2007).

1 For an explanation of the “old school strategy of ‘deliberate bypass,’” see Fay v. Noia, 372 U.S. 391, 433-40 (1963), overruled in part by Wainwright v. Sykes, 433 U.S. 72 (1977). Nos. 05-4336; 07-4294 Lott v. Bagley Page 3

Accordingly, the judgment of the District Court denying Lott’s petition for a writ of habeas corpus is affirmed. Nos. 05-4336; 07-4294 Lott v. Bagley Page 4

EXHIBIT 1

2. Schlup v. Delo evidence in its actual innocence review. Id. at 2077. The House Court also emphasized that 'the habeas court must consider 'all the evidence,' old and new, incriminating and Out of an abundance of caution and for appellate exculpatory, without regard to whether it would necessarily be review, the Court will, regardless of its findings pertaining to admitted under 'rules of admissibility that would govern at Lott's actual innocence under the statutory standard, also trial.'" Id. (quoting Schlup, 513 US. at 327-38)(emphasis subject his actual innocence claim to the standard set forth in supplied). Schlup v. Delo, 513 US. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). As the Court reasoned during the evidentiary B. Substantive Analysis hearing, this is the standard that Lott must meet to excuse the procedural default of his Brady claims. 14 1.28 U.S.C. § 2244(b) As noted above, the Court must now apply the claim 14 Although the issue of whether the Schlup standard Lott raised in the successor petition to the requirements set survived the enactment of the AEDPA was raised forth in § 2244(b). As Lott does not contend that the Supreme during the evidentiary hearing, it is a settled question Court has created a new rule of constitutional law made that Schlup remains intact. See House v. Bell, 547 retroactive to him under § 2244(b)(2)(A), the Court will U.S. 518, 126 S.Ct. 2064, 2078, 165 L. Ed. 2d 1 review his claim pursuant to § 2244(b)(2)(B). That statute (2006)(finding Schlup remains the standard for requires Lott to demonstrate both that he could not have determining actual innocence in first federal habeas previously discovered the factual predicate of his claims, and petitions in which the petitioner seeks to excuse the that he can establish, by clear and convincing evidence, that default of those claims based on a showing of actual he would not have been convicted but for constitutional innocence); Williams v. Bagley, 380 F.3d 932, 973- error. 15 The Court reviews each of these statutory prongs, 74 (6th Cir. 2004). finding that Lott can satisfy neither. 15 Although the Court holds elsewhere in this In Schlup v. Delo, the Supreme Court held that, where a Opinion that Lott has satisfied the diligence petitioner seeks to utilize claims of actual innocence as a requirement of § 2254(e)(2), it notes that the gateway to assert he was wrongly convicted of a crime, the difference in that statute's language from petitioner must demonstrate that "a constitutional violation § 2244(b)(2)(B)(i) is significant and requires the has probably resulted in the conviction of one who is actually Court to perform a distinct analysis. While innocent." Id. at 327 (quoting Murray v. Carrier, 477 § 2254(e)(2) merely requires that the petitioner not U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). have "failed to develop" his claims in state court, a To constitute the necessary "probability," the petitioner must requirement Lott clearly has fulfilled by filing a second show "that it is more likely than not that no reasonable juror petition for post-conviction relief, § 2244(b)(2)(B)N would have convicted him in light of the new evidence." Id. requires that an applicant acted timely in presenting Thus, the Schlup Court concluded, if a habeas petitioner newly discovered materials to the state courts. presents evidence of his innocence that is so strong that a a. § 2244(b)(2)(B)(1) habeas court cannot have confidence in the trial's outcome unless it is also of the belief that the trial was free of Lott's failure to present his Brady and actual innocence constitutional error, a habeas petitioner should be entitled to claims in a timely fashion is undisputable. As Lott concedes a merit review of his underlying claims. Id. at 316. in the successor petition, Lott's post-conviction counsel obtained the City of Cleveland and Cuyahoga County The Supreme Court revisited the Schlup holding in House Prosecutor's Office records that form the basis of his Brady and actual innocence claims by October, 1991. Although Lott v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L. Ed. 2d 1 could have presented these claims based on this (2006). There, the petitioner asserted that multiple facts that information to the state court at that time, he failed to do had come to light since the time of his state court so. Current habeas counsel concede that post-conviction proceedings could establish his actual innocence as a counsel "engaged in an 'intentional bypass' of the state gateway to excuse the procedural default of the claims raised courts in the hopes that the federal courts would more in the petition. Reversing the Sixth Circuit's denial of this thoroughly consider the documents. (Doc. No. 1, at 24). relief, the Supreme Court held that the petitioner had met Thus, there is no doubt that Lott fails the Schlup standard.

Prior to applying this standard to the facts presented, the House Court underscored several aspects of the Schlup holding that are of particular significance here. First, the House Court noted that, while Schlup requires the introduction of new, credible evidence that was not presented at a petitioner's trial, a habeas court is not limited to such Nos. 05-4336; 07-4294 Lott v. Bagley Page 5

to demonstrate that he could not have discovered the departing quickly from that area holding a brown bag or factual predicate of his claims previously, as is required under shirt under his arm. the statute. '6 ii. Materials in support of actual innocence acquired 16 Attempting to circumvent this quandary, Lott's since trial counsel asserted during the evidentiary hearing, as a. Identification Issue stated above, that "the degree of ineptitude by [post- Lott's identification claim contains several sub-parts: conviction and first habeas counsel] combined give First, he maintains that McGrath failed to identify him as the a legal basis to excuse ... the due diligence default." assailant because of his description regarding the complexion, (Doc. No. 85, at 8). Counsel conceded that this hair, and height of the assailant. Lott also notes from the argument currently has no legal support. Id. at 10. police report containing this description that McGrath The Court cannot forgive Lott's lack of due believed that he recognized his assailant from his diligence because there is simply no authority for what barbershop. Lott also asserts that Coleman's artist sketch amounts to Lott's ineffective assistance of collateral of him and her description of him as having a "reddish" counsel claim. In fact, the Supreme Court has held complexion demonstrates his innocence. Moreover, he explicitly that no such constitutional right exists. contends, police suggested to Coleman that Lott altered his Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S Ct. skin tone by using skin-lightening makeup. 1990, 95 L. Ed. 2d 539 (1987); 28 U.S.C. §2254(1). i. McGrath identification b. § 2244(b)(2)(B)(11) The Court finds that, while parts of McGrath's Even if Lott could satisfy the requirements of § description of his assailant may support Lott's actual 2244(b)(2)(B)(i), he cannot demonstrate, by clear and innocence, it by no means proves it by clear and convincing convincing evidence, that no reasonable factfinder would evidence. In his first habeas petition, the Court alternatively have convicted him of McGrath's murder if no Brady held that, even if not defaulted, Lott's claim regarding violation had occurred at his trial. The Court sets forth McGrath's identification of him would not have been well- below the evidence presented at trial and during the federal taken because McGrath's "description is not so contrary to habeas proceedings. Lott's actual appearance that it would have made a material difference in the outcome of Lott's trial." (Case No. 95 CV i. Evidence presented at trial 2642, Doc. 109, at 60). Upon review of the evidence and The Court briefly reviews the most inculpatory evidence testimony presented during the evidentiary hearing, the the prosecution presented during Lott's trial. The Court Court's conclusion remains unaltered. As stated above, Art acknowledges that the majority of this evidence is McCoy testified during the evidentiary hearing that circumstantial. The prosecution presented the testimony of McGrath frequented his barbershop during the summer of several police detectives who stated that a shoe print found 1986. He stated that McGrath would receive a haircut in the dusty floor of McGrath's bedroom generally matched approximately every two to three weeks. (Doc. No. 85, at a pair of shoes found in Lott's possession. Moreover, the 54). Thus, it is fair to assume that McGrath was referring to prosecution presented testimony that Lott's fingerprints McCoy's barbershop when mentioning it to the police. were on a church envelope that recently had been mailed to McCoy also testified during cross-examination that Lott McGrath, and another fingerprint matching Lott's was frequented the area around the barbershop. Id. at 59. He found in McGrath's bedroom. And, the prosecution conceded, moreover, that Lott actually entered the presented uncontroverted evidence that Lott had been in barbershop on several occasions. Id. Thus, McGrath's McGrath's home on prior occasions and was, thus, obviously barbershop statement only serves to undermine Lott's familiar with the home and with the fact that the home innocence claim. belonged to McGrath. McGrath's physical descriptions of Lott, however, are The only direct evidence linking Lott to McGrath's less clear cut. While the Court, as stated above, finds murder was the testimony of Diedrea Coleman. Coleman consistent with its earlier conclusion that McGrath's identified Lott from a photo array as the man who she had description does not depart significantly from Lott's actual seen driving a Ford Escort, which was later determined to appearance, particularly his description of Lott's height, be McGrath's, in her neighborhood. She stated that her which varied only two inches from Lott's actual height, the suspicions became aroused when she viewed Lott around other aspects of the identification present some discrepancies her neighbor's home. She later observed Lott that are inexplicable. Lott's complexion, upon observation, cannot be characterized as "very light," as McGrath described him. Less significant was Lott's hair Nos. 05-4336; 07-4294 Lott v. Bagley Page 6

length, a physical characteristic which was readily the identification, they do not render the changeable. Kyle testified at the hearing that Lott's hair length Ohio court's reliability determination remained constantly short throughout the summer of 1986. unreasonable.... While the Court does not suspect the veracity of Kyle's recollection, it also is mindful that Kyle's memory of Lott's hair length, a fairly insignificant fact given the events of that (Case No. 95 CV 2642, Doc. 109, at 65). summer, could have been mistaken. In sum, the Court finds Moreover, Coleman's assertion that Lott had a that the only evidence supporting Lott's actual innocence "reddish" complexion is less compelling when taken in the based on McGrath's identification of him is McGrath's context of her trial testimony. When defense counsel description of his complexion. questioned her on cross- examination regarding the "reddish" Viewing this description in light of the time and pigment she described as Lott's skin tone, she elaborated as condition in which it was received serves to undercut its follows: import, however. Although Detective Copeland testified during the hearing that, pursuant to his typical practice and A: Like you have got some black people routine, he would not interview a victim unless lucid, it is who have a bluish tone, and some have a undeniable that McGrath's age, and certainly his medical yellowish undertone, and some have - - like condition at the time of the statement, must be considered tannish. You have different shades, when assessing its significance. Along with his physical variations. description of Lott, McGrath also stated during the identical police statement that, "the suspect came back on Monday and let him [McGrath] drive his [own] car." (Doc. No. 17, (Trial Tr., at 136). She also admitted that her sketch of Lott Exh. B, at 1). He thereafter stated that "he was not sure if was not a "true rendering" of Lott's features, Id. at 131. She this happened or not." Id. These statements hardly inspire stated that she was not attempting to be accurate, instead confidence that McGrath's description, supplied two choosing to prepare a sketch quickly so that police could sentences later, was accurate. '' apprehend the individual. She had expected that a police artist would subsequently enhance the drawing because 17 Lott also raised the issue that McGrath failed to "they [were] trained in that field," and she was not. Id. identify Lott from the composite sketch created by Coleman. A review of the police report depicting 18 Lott also raised the issue about whether Lott used this display reveals, however, that McGrath merely skin-lightening makeup to alter his skin tone. As was not responsive when shown the sketch. He died Lott observes, there is nothing in the trial record to several hours later. (Doc. No. 17, Exh. C). Thus, the support the assertion that Lott ever used skin makeup Court does not consider this fact to be helpful to to alter his complexion. The issue was raised as Lott. conjecture during the trial and deposition testimony of ii. Coleman identification Coleman. Lott asserts the Respondent raised this issue to deflect the obvious discrepancy between Lott raised the issue of Coleman's identification of him, McGrath's description of his assailant and Lott's albeit pursuant to another claim, in his first federal habeas actual skin tone. petition. The Court found Coleman's description of Lott, crafted after she had viewed him perusing her neighborhood, As Judge Boggs found in his opinion dissenting to be credible because from the Sixth Circuit's grant of permission to file a second habeas petition, the skin-lightening she had a reason to observe him, thus theory "seems unlikely." In re Lott, 366 F.3d 431, 437 suggesting that she would pay a close degree (6th Cir. 2004)(Boggs, J., dissenting). Given the fact of attention to his appearance (and would that the Court already has called McGrath's have reason to remember it). The fact that identification of Lott into question because of his she described Lott as having worn a running medical condition at the time he provided the suit which was identical to the one found in description, the Court declines to speculate further Lott's car also makes her identification more on this issue. reliable. Though there are factors, including b. Lamp oil issue the apparent differences between Coleman's sketch of the man she saw and Lott's actual During closing arguments at trial, the prosecutor argued appearance, which somewhat weaken the that Lott had brought lamp oil with him to McGrath's reliability of home, intending to set him afire. The records Nos. 05-4336; 07-4294 Lott v. Bagley Page 7

post-conviction counsel received in 1991 reveal that, he and co-counsel were aware that there was no evidence among McGrath's possessions, was a kerosene lamp that to support the prosecutor's statement that Lott brought would have used lamp oil to be ignited. Lott asserts that the the lamp oil with him. (Doc. No. 85, at 43). prosecutor's argument that there was no reason for Because Lott was tried before a three judge panel, this McGrath to have lamp oil in his home was an outright Court must assume that the panel was aware of the lack of fabrication to prove the element of Lott's intent to kill. evidentiary support for the prosecutor's claim. The panel During closing statements, the prosecutor attempted to also was well aware that the prosecutor's argument did not counter defense counsel's assertions that McGrath may have constitute evidence during the trial. Thus, Lott is hard accidentally ignited himself by arguing as follows: pressed to demonstrate that the comment had any effect on the outcome of the trial or has any relevance here. The The physical examination of his house Court finds that the fact that a kerosene lamp was found in unquestionably shows aggravated burglary McGrath's home does not tend to demonstrate Loft's and aggravated robbery as stated in the actual innocence. indictment and the laws of the State of Ohio. iii. Loft's confession But to consider the specific intent that the killer had to kill Mr. McGrath. As the House Court dictates, this Court must consider all evidence, both inculpating and exculpating, when I'm not going to even seriously consider reviewing an actual innocence claim. House v. Bell, 126 those suggestions made by defense counsel S.Ct. at 2077; Lott v. Coyle, 261 F.3d at 621. Thus, while concerning the bottle of lamp oil. Nothing in this statement was suppressed before trial and the panel that man's house that uses kerosene or lamp did not consider it because Lott's counsel was not present oil. So, with that in mind, consider the intent when it was given, the Court now considers the statement of the individual who would break into an old Lott made to Detective James Hughey after his arrest man's house, knowing the frailty that age has when assessing his actual innocence. The police report inflicted on him, bringing with him a cord to containing this statement reads as follows: tie him up and the lamp oil to burn him. You may argue that a person that has a When questioned about the above incident gun and kills somebody does it by accident, a with Mr. John McGrath he started crying. He knee jerk reaction or a spasm, or for some stated he never intended to hurt Mr. reason reacted to some fear instilled by the McGrath. He went over to Mr. McGrath's victim. house at 7:00 a.m. sometime in the middle of July and went to the back of the house and You cannot but look upon this act as broke out a basement window. He went into deliberate, vile and specifically intending to the house and found Mr. McGrath in a front cause the death of Mr. McGrath; that he was bedroom on the main floor of the house. He tied up and that the killer poured this stated that the next thing he knew Mr. flammable substance on him and ignited him. McGrath was tied up. He remembers using either a telephone cord or electrical wire to Trial Tr. at 778-79. tie him up. McGrath wasn't in bed when this took place but he doesn't remember or The Court finds that, while the prosecutor's assertions know why he wasn't. regarding the lamp oil may be the subject of a prosecutorial After he was tied up he took his car keys misconduct claim, they are immaterial to Lott's claim of which were on a dresser or table ei- actual innocence. As Judge Boggs observed in his dissent from the granting of the application to file a successor petition: Assuming that McGrath owned the oil, it was available to Lott, who used it in his attack on the victim. Were this an argument about prosecutorial misconduct in the penalty phase of a capital trial, I would see the relevance. In this context, Icannot draw any inference from the oil that indicates Lott's innocence.

In re Lott, 366 F.3d 431, 437 (6th Cir. 2004). Although his opinion is not binding on this Court, the Court finds Judge Boggs's reasoning to be persuasive. Moreover, during the evidentiary hearing, defense counsel Kersey admitted that Nos. 05-4336; 07-4294 Lott v. Bagley Page 8

ther in the bedroom or the room next to it and der charges, he claims that he never even spoke to Hughey left the house and got into the car, which regarding the McGrath murder. Id. at 20. was in the driveway and drove off with it. He The Court finds Lott's attack on Hughey's credibility described McGrath's car as being a smaller unavailing. Not only is there no evidence in the record that model car, dark in color. Hughey had any reason to fabricate the confession, the When asked about any type of confession itself undercuts any claim that it was fictionalized. flammable [sic] fluid or liquid being put on First, the absence of reference to an outright admission Mr. McGrath and then setting it on fire he regarding the arson is telling -- had Hughey invented Lott's stated that he didn't remember anything words, he would likely have completed the story. Second, about that. He was asked about why he details provided in the statement are itself telling -- all being broke into Mr. McGrath's house and why later corroborated by the murder investigation. Lott's did he tie him up he stated he didn't know confession comports with police testimony stating that the why he broke into the house, he didn't want assailant broke in through a basement window, that him to contact the police when he left the McGrath was tied up with a telephone cord, and that the house with his car.... assailant left McGrath in the bedroom. Moreover, it When questioned about his intent in the substantiates both Coleman's testimony and McGrath's McGrath incident he stated he didn't know. statement that Lott was driving McGrath's car. For these He stated he didn't intent [sic] to hurt reasons, the Court credits Respondent's assertion that Lott, anyone and that he didn't know what he was in fact, provided the above- described confession shortly doing. He stated that he would do anything to after the murder. keep from [going] to the [electric] chair. c. Conclusion In reviewing all the evidence regarding Lott's actual Lott v. Coyle, 261 F 3d 594, 620-21 (6th Cir. 2001). innocence of McGrath's murder, the Court finds, for the reasons stated above, that he falls far short of establishing, When reviewing Lott's actual innocence claim on as he must to prevail on a successor petition, that he can appeal from his first federal habeas petition, the Sixth establish his actual innocence by clear and convincing Circuit found Lott's confession to be significant. Although evidence. Although McGrath's description of Lott's skin it initially opined that it was "troubled" that Lott was tone would tend to exculpate Lott, other evidence Lott convicted based solely on circumstantial evidence, the Sixth maintains proves his actual innocence does not, in fact, do Circuit reasoned that if Lott's statement ultimately were so. Upon further review, some of these materials, such as found to be reliable, it would present the Court with more McGrath's assertion that he knew his assailant from his direct evidence of Lott's guilt. It held, "[a] more detailed barbershop, tend to further implicate Lott. Given the review of the circumstances than appears in this record may circumstantial evidence presented at trial and Lott's show that Lott's inculpatory statement, although suppressed confession, the Court finds that Lott fails to meet the at trial, was voluntarily made and admits of no reason to standard set forth in § 2244(b)(2)(B)(ii). Thus, pursuant to doubt its reliability or truthfulness." Id. at 621. that statute, his successor petition must be dismissed. Although Lott now attests that this statement was a 2. Schlup v. Delo complete fabrication, the Court observes both that Lott first Even if the Court were to disregard the heightened made such an assertion in 2002, during his clemency hearing statutory standard of actual innocence, it would find that and that Lott presented no evidence at the hearing before Lott could not establish his actual innocence pursuant to this Court which supports that claim. Thus, Lott did not contest the veracity of this statement in any of his prior Schlup. As discussed above, Schlup and House dictate that, proceedings and has still yet to do so in any meaningful way. to establish actual innocence, a habeas petitioner must During a deposition taken during the second habeas demonstrate that it is "more likely than not, in light of the proceeding, Lott denied he made any statement regarding his new evidence, no reasonable juror would find [the petitioner] involvement in the McGrath murder. Instead, he maintained guilty beyond a reasonable doubt-or, to remove the double that Hughey spoke to him about someone he knew by the negative, that more likely than not any reasonable juror name of Freddie Robinson and his brother. (Doc. No. 69, would have reasonable doubt." House, 126 S. at 2077. Exh. 2, at 18). Although Lott conceded that he became As stated above, most of the new evidence Lott emotional after being arraigned on mur presents in support of his innocence does not prove it. The Court found that only the McGrath skin tone description Nos. 05-4336; 07-4294 Lott v. Bagley Page 9

would support his innocence. All other evidence Lott presented was either neutral, neither establishing nor undercutting his guilt, or tended to inculpate him. This new evidence coupled with the evidence presented at trial and Lott's confession do not establish that it is more likely than not that any reasonable juror, hearing all this evidence, would have reasonable doubt about Lott's guilt. Lott cannot establish his actual innocence pursuant to Schlup. Accordingly, the Court must also find that Lott has failed to establish a "gateway" by which to excuse the procedural default of his Brady claims. Thus, Lott is not entitled to a merit review of them.