Oyd McCray v. Jeff Tanner

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 17, 2024
• Docket: 18-2001
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0309n.06

No. 18-2001

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 17, 2024 ) KELLY L. STEPHENS, Clerk OYD MCCRAY, ) Petitioner - Appellant, ) ON APPEAL FROM THE UNITED ) v. STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ) JEFF TANNER, Warden, MICHIGAN ) Respondent - Appellee. ) OPINION )

Before: SILER, MOORE, and KETHLEDGE, Circuit Judges.

KETHLEDGE, J., delivered the opinion of the court in which SILER, J., joined. MOORE, J. (pp. 24–32), delivered a separate dissenting opinion.

KETHLEDGE, Circuit Judge. Oyd McCray was convicted of murder in 1994 and

sentenced to life imprisonment, largely on the strength of testimony from a disinterested witness

who saw the shooting from a car’s-length away. In 2003 McCray filed a habeas corpus petition,

asserting an ineffective-assistance-of-counsel claim, among other claims. After several years of

litigation, the district court held that McCray’s petition was barred by the statute of limitations. To

overcome that bar, McCray has since presented evidence—much of it from family members who

claimed they were present at the murder scene (yet said nothing about the case for years), and some

of it from fellow inmates—that McCray says demonstrates his innocence. We rejected McCray’s

claim to that effect some 17 years ago, but he now argues that another slate of putative witnesses—

six of them, three of whom present only affidavits—would now compel every reasonable juror to

find reasonable doubt as to his guilt. The district court rejected that argument, and we affirm. No. 18-2001, McCray v. Tanner

I.

A.

At around 5:00 p.m. on the evening of February 28, 1994, Perry Leonard was sitting in his

Chevrolet Suburban on Bessemore Street in Detroit. A short time later, a dark blue car pulled up

next to Leonard’s Suburban. At some point, a man walked up to Leonard’s driver’s side window

and started talking to him. The driver of the blue car got out of his vehicle and, as he did, the man

standing at Leonard’s window pulled out a silver, semi-automatic pistol, thrust it into Leonard’s

vehicle, and began firing. Leonard’s Suburban began to roll forward and, as it did so, the gunman

kept shooting, eventually hitting Leonard 15 times. Leonard’s vehicle ultimately jumped the curb

and rolled into a nearby home. First responders rushed Leonard to the hospital, but he died on

arrival.

Meanwhile, at the crime scene, Eric Perrin—who had been driving home from work—told

investigating officers that he had been stopped directly behind Leonard’s Suburban (indeed, it had

blocked his way) when the shooting occurred. In his statement, Perrin described the shooter as a

black male, “5'3"-5'7"” and “145-150” pounds, with dark skin, “armed with a silver automatic”

handgun. Perrin said that, after the shooting stopped, the gunman walked toward a blue car that

had pulled next to Leonard’s Suburban. Perrin told police that he saw the blue car “back[] up

toward Gratiot [Avenue]” after the shooting.

The day after the murder, police interviewed Leonard’s girlfriend, Kathleen Parrish.

According to the homicide file for the case, Parrish told police that Leonard had been “selling

drugs” and that a guy named “‘Bug’ used to sell for him.” She said that Bug “lived on Bessemore”

and that Leonard would drive “over to his house and sit in front and Bug would come out.” She

described Bug as “black, 20’s, 5-4, skinny, dark brown complexion, short hair, clean shaven” and

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said that he drove “an older model yellow BMW.” She said that some of Leonard’s family

members had told her that “Bug owed [Leonard] money.” She also mentioned that Leonard had

used the phone at her mother’s house on the day of the murder. Parrish said her mother overheard

Leonard “arguing with whoever he was talking to” and that he “mention[ed] the name ‘Bug’ while

he was talking.” Parrish did not provide police with Bug’s real name.

On March 2, police received an “anonymous tip” that two men may have been involved in

the shooting: Oyd McCray and Dante Effinger. Police soon arrested Dante and questioned him

about the shooting. Dante purported to provide an alibi, but said that his grandmother had told

him that Leonard had been killed. He also mentioned that he knew Leonard and that Leonard

“hung around a guy called ‘Bug’”—whose real name was Oyd McCray. Dante said that McCray

lived on Bessemore Street. That same day, police arrested McCray.

The next day, police conducted a lineup with Perrin to see if he could identify the gunman.

That lineup included McCray, Dante Effinger, and five others. At that time, McCray was 5'6",

165 pounds, and had facial hair; Dante was 5'11", 169 pounds. The court appointed an attorney,

Herbert A. Sanders, to observe the lineup. According to Sanders’s record of the lineup, Perrin said

that McCray “could be” the gunman, but that he did not recall the shooter having facial hair. Perrin

added that McCray “looks like him[,]” and Perrin eventually identified the gunman as McCray.

Later that day, police interviewed Dante’s brother, Dartrell Effinger. (For clarity, we refer

to Dante and Dartrell by their first names.) At that time, Dartrell was 6'1" tall and weighed 242

pounds. In a statement, he told police that, on the day of the murder, he had been driving his blue

1977 Chevrolet Malibu down Bessemore Street with a passenger named Anthony Jones when he

pulled up on the curb near Leonard’s Suburban—which was parked near McCray’s house. He said

that McCray—whose nickname was “Bug”—was standing at the “driver’s window of [Leonard’s]

3 No. 18-2001, McCray v. Tanner

truck talking to [Leonard].” Dartrell said that he and Jones got out of his car and were walking

toward the middle of the street when they “started hearing shots.” When Dartrell looked toward

Leonard’s Suburban, he “saw that Bug had his right hand in [Leonard’s] window as the shots were

going off.” Dartrell said that he got back into his car and “backed up to the alley west of Gratiot.”

When police asked why he thought McCray shot Leonard, Dartrell responded: “I heard that Bug

owed [Leonard] some money.”

Police next interviewed Jones, whose statement was similar to Dartrell’s. Jones said that,

on the day of the murder, he had been “riding west on Bessemore with Dartrell Effinger in his blue

Chevy Malibu.” As they parked near Leonard’s Suburban, he saw McCray standing at Leonard’s

window, talking to him. Jones exited Dartrell’s car and heard Leonard tell McCray: “if I don’t get

the title to the BMW signed over to me by the end of the day I will kill you.” Jones then walked

across the street and shortly thereafter “heard some shots.” He ran back to Dartrell’s car and then

saw that “Bug’s hands was inside [Leonard’s] window,” “heard more shots,” and heard McCray

say, “I told you I was going to kill you.” Jones also said he saw McCray “holding a silver

handgun.” After the shooting, Jones said he got back into Dartrell’s car and they “drove off.”

When police asked what happened to McCray, Jones responded: “I don’t know. I lost sight of

him.” Jones’s statement also indicated that, at the time of the shooting, he was 5'8" and weighed

265 pounds.

McCray was soon charged with first-degree murder and with possessing a firearm during

the commission of a felony. A few weeks later, on March 24, the state court held a preliminary

examination hearing to determine whether there was probable cause to hold McCray on those

offenses. Two witnesses, Jones and Perrin, testified.

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Jones testified first and said that he had been standing on Bessemore Street “shooting dice”

when Dartrell pulled up near Leonard’s Suburban. The prosecutor questioned Jones about that

testimony being inconsistent with his prior statement to police that, just before the shooting, he

had arrived on Bessemore in Dartrell’s car. Jones responded that he had been “forced [into]

making” that statement. The prosecutor next asked Jones for the real name of the person

nicknamed “Bug” that he had mentioned to police. Jones responded that “I didn’t put no Bug in

no statement” and said that he had never called anyone by that nickname. Jones then testified that

he knew McCray, but that he had not seen him on Bessemore at the time of the murder. Jones

added that, when the shooting started, he began running, jumped into Dartrell’s car and left the

scene, and that he did not see the shooter because he “wasn’t looking around to see nobody.” In

response to several follow-up questions, Jones repeatedly denied having identified McCray as the

shooter. He also denied having ever spoken to the police officer who purportedly took his prior

statement until the day of the hearing.

Perrin, who had been sequestered during Jones’s testimony, testified next. Perrin said that,

on the day of the murder, he turned onto Bessemore Street on his way home from work, at which

time he found the street “blocked” by a Suburban. He said he saw a “young man who was talking

to the driver of the Suburban,” and identified that person as McCray—who was sitting in the

courtroom. Perrin testified that “a blue GM vehicle” with “only one person in it” soon pulled up

near Leonard’s Suburban, and that the driver got out of the car. Perrin said the driver “looked over

at the young man in the Suburban,” and that McCray then began to shoot Leonard. He testified

that he heard “several shots”—“about four or five”—and that as Leonard’s car began to veer off

the road into a nearby home, McCray continued firing into the vehicle. Perrin said that, after the

5 No. 18-2001, McCray v. Tanner

shooting stopped, he noticed that the driver of the blue car had returned to his vehicle, and that

McCray was walking back toward Perrin’s car.

On cross-examination, McCray’s attorney questioned Perrin whether he had “trouble

identifying” McCray at the police lineup. Perrin acknowledged that he “didn’t recall” McCray

having facial hair at the time of the shooting. Perrin added that he “couldn’t tell” if the shooter

had facial hair, but that he was “sure” about what the shooter looked like, he “just didn’t remember

the beard.”

Following that testimony, the court found “probable cause” that McCray had committed

the charged offenses. Five months later, McCray’s case proceeded to trial.

B.

On the first day of the trial, Perrin again testified that, on the day of the murder, he had

been driving home from work when he turned onto Bessemore Street and found the road blocked

by Leonard’s Suburban. Perrin said he observed “one person who was standing . . . at the window

of the brown Suburban.” Perrin identified that person as McCray. Perrin said that, about ten

minutes after he first pulled onto the street, “another car pulled up to my left ahead of me and

straddled the Suburban.” Perrin described what happened next:

A guy got out of the car and . . . he put his arm across the roof of the car, and looked toward the guy, you know, in the Suburban. And I don’t remember him saying anything, but he just looked as if he gestured, you know. And then when he did that, [McCray] started shooting the guy in the Suburban.

Perrin said that he saw McCray “just jerking the gun into the driver of the truck.” He testified that

Leonard’s Suburban then “veered off to the left, jumped the curb,” and went across “a vacant lot,”

and that McCray “kept firing the gun, running alongside the vehicle.” He added that he “heard a

lot of shots,” anywhere “from five to eight shots, you know, maybe more. It was a whole lot of

shots.” Perrin said that Leonard’s vehicle eventually crashed into a house, and, at that point, 6 No. 18-2001, McCray v. Tanner

McCray turned around and walked to the blue car parked nearby, and got into it. Perrin said that

he only saw the driver and McCray in that blue car. Perrin said that, at that point, he felt he had

seen “more than what [he] should have” so he just “got out of there.”

The prosecutor then asked Perrin about the lineup. Perrin confirmed that he had identified

McCray at the lineup:

I said that was him. I also said that I just couldn’t place his beard. His beard seemed to show in the light of the line-up; it was outstanding. I hadn’t noticed his beard as profoundly at the time of . . . the shooting as I did in the line-up.

Perrin added that the lighting at the lineup was “very, very bright,” but that, on the day of the

shooting, “there wasn’t a lot of sunlight out . . . it wasn’t . . . a very sunny day.”

On cross-examination, McCray’s attorney asked whether Perrin recalled testifying at the

preliminary examination that he heard only “four or five shots,” rather than the “five to eight” or

“several shots” he had mentioned at trial. Perrin admitted he might have previously testified

differently as to the number of shots. McCray’s counsel then asked Perrin about the lineup:

Q: Also, when you went to the line-up in March, you said that you was not certain about the person who shot into the truck; is that correct? A: No. Q: You were not certain? A: No, I didn’t say that. I didn’t say I wasn’t certain about him shooting in the truck. I saw him shoot into the truck. Q: But when you were at the line-up identifying the defendant, you were not certain as to whether or not it was the defendant; is that correct? A: No, I was certain it was the defendant; I just wasn’t certain about his beard. I could see a very, you know, strong showing of his beard that I wasn’t certain of at the time of the shooting.

McCray’s counsel continued:

Q: You did not say number three [at the lineup], the defendant, could be the shooter? A: I said that’s him.

7 No. 18-2001, McCray v. Tanner

.... Q: You did not say it could be him? A: Well, I may have said that could be him, but I also said that was him because – .... Q: But you weren’t sure, right? A: I wasn’t sure – I was sure about him; I wasn’t sure about the beard.

Dartrell testified next. He began by telling the jury that he had known McCray for a “long

time.” He then said that, on the day of the shooting, he had driven his blue 1977 Chevrolet Malibu

to Bessemore Street but—contrary to the statement he gave to police in which he said Jones had

been riding with him at that time—said that he had been “riding by [himself].” He said he pulled

next to Leonard’s Suburban and saw McCray talking to Leonard. He also testified that he got out

of his car, said hello to Leonard across the roof of his vehicle, and that was when the shooting

started. He then reiterated that, as he said in his prior statement to police, he had seen “Bug” with

his “right hand in [Leonard’s] window as the shots were going off.” He said that “Bug” was

McCray’s nickname. He then testified that, after the shooting began, he got back into his car. He

added that, as he tried to pull away, he saw McCray standing in the middle of the street and that

McCray did not leave the scene in his car. When the prosecutor asked why he thought McCray

shot Leonard, Dartrell responded: “I heard on the streets that he owed him some money.” The

court struck that last statement as hearsay.

On cross-examination, McCray’s counsel questioned Dartrell about his identification of

McCray as the shooter:

Q: I asked you whether or not you were certain it was the defendant, and you told me it was not; is that correct? A: Yes, that’s correct. Q: You told me you was not certain that you seen the defendant out there on that day.

8 No. 18-2001, McCray v. Tanner

A: Yes. Q: Because you said the person you saw out there did not have a mustache; is that— A: I think I recall saying that. .... Q: Okay. But on that day the defendant – you always know the defendant to have a mustache; is that correct? A: Yes, a slight one, yes. .... Q: But the person you seen did not have a mustache? A: I don’t think so.

McCray’s counsel also asked whether Dartrell could have confused the shooter for

McCray’s brother, Stacy. (For clarity, we will refer to McCray’s relatives by their first names.)

Dartrell responded that: “I mean I could tell the difference. They look . . . very much alike, very

much alike.” In response to follow-up questions, he added that he “may” have previously told

McCray’s counsel that “it may have been [Stacy] by the truck,” but that he did not “recall” saying

that. On redirect, the prosecution asked, “who was it outside of the driver’s door of the brown

Suburban on Bessemore street back on February 28th?” Dartrell responded, “Mr. McCray.” On

recross, McCray’s attorney again asked Dartrell whether he was sure the shooter was McCray, but

the court told Dartrell he could “step down,” which ended that line of questioning.

Over the course of the next several witnesses, the prosecution established that, on the day

of the shooting, police had arrived on Bessemore Street around 5:15 p.m.; that they discovered

Leonard face down in his vehicle, covered in blood; and that Leonard died from injuries caused

by 15 gunshot wounds. Officers also testified that their supervisor’s original description of the

shooter (presumably based on Perrin’s statement to police) was that he was “a black male, 18 to

9 No. 18-2001, McCray v. Tanner

23, five-foot-seven, one hundred forty-five to one hundred sixty pounds, dark complexion, [and]

clean-shaven[.]” The prosecution presented no physical evidence linking McCray to the murder.

The defense began its case by attempting to call into question Perrin’s identification of

McCray at the lineup. To do so, McCray’s counsel called as a witness the attorney who had

observed the lineup, Herbert Sanders. The defense asked Sanders whether Perrin had been able to

identify McCray. Sanders responded: “Based on my notes, the witness was eventually able to

make an identification of this individual.”

The defense next called Evelyn Ross, who lived in the home struck by Leonard’s Suburban.

Ross said she had been inside her home when she heard Leonard’s vehicle crash into it. She said

she walked outside, but did not see any other cars on Bessemore Street at that time. The defense

then rested.

The jury deliberated for just over an hour before convicting McCray of first-degree murder

and possessing a firearm during the commission of a felony. The court sentenced McCray to life

imprisonment without the possibility of parole on the first-degree murder charge, and two years’

imprisonment on the firearms charge.

C.

1.

McCray appealed his conviction, but the Michigan Court of Appeals affirmed. The

Michigan Supreme Court denied leave to appeal, and the United States Supreme Court denied

certiorari. See People v. McCray, No. 181017, 1996 WL 33362436, at *3 (Mich. Ct. App. June

25, 1996) (per curiam); People v. McCray, 564 N.W.2d 897 (Mich. 1997) (unpublished table

decision); McCray v. Michigan, 522 U.S. 888 (1997) (mem.). In the trial court, McCray filed a

motion for relief from judgment, claiming his attorney failed to track down potential witnesses.

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The court denied the motion, and the Michigan appellate courts denied leave to appeal. See People

v. McCray, No. 94-3272 (Mich. 3d Cir. Ct., Crim. Div. Feb. 9, 2000); People v. McCray, No.

229804 (Mich. Ct. App. Apr. 26, 2001); People v. McCray, No. 119425 (Mich. Nov. 30, 2001).

In January 2001, McCray obtained new evidence in the form of two affidavits. In the first,

Dartrell said that, when he testified at trial, he had been unsure whether McCray was the gunman

he saw on Bessemore Street on the day of the murder. He also asserted that the prosecutor told

him that if he did not “stick” to his pre-trial statement identifying McCray as the killer, he would

be charged with perjury. In the second affidavit, one of Dartrell’s fellow inmates, Jermaine Hunter,

said that Dartrell had told him that he and Jones had “put the murder on ‘Bug’” so that Dartrell’s

brother, Dante, would not be charged with the crime. Based on that evidence, McCray filed a

second motion for relief from judgment, which the trial court denied. See People v. McCray, No.

94-3272 (Mich. 3d Cir. Ct., Crim. Div. Aug. 14, 2001). The Michigan Court of Appeals dismissed

McCray’s appeal as untimely. See People v. McCray, No. 243197 (Mich. Ct. App. Sept. 4, 2002).

2.

In September 2003, McCray turned to federal court, filing a pro se habeas corpus petition

raising (as relevant here) an ineffective-assistance-of-counsel claim. Specifically, McCray

asserted that his trial counsel had failed to investigate and subpoena three witnesses who

purportedly would have testified that McCray was not at the scene of the murder. The state moved

to dismiss McCray’s petition as untimely under the Anti-Terrorism and Effective Death Penalty

Act’s one-year statute of limitations. See 28 U.S.C. § 2244(d).

McCray conceded that his petition was untimely, but he argued that he could meet the

actual-innocence standard announced in Schlup v. Delo, 513 U.S. 298 (1995). In support, McCray

submitted the Dartrell and Hunter affidavits that he had filed in the state postconviction

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proceedings, along with five new affidavits—from Demarlo Gilbert, Ferrie Rice, Derrick Ross,

Stacy, and McCray himself. Based on those affidavits, the district court granted McCray an

evidentiary hearing at which seven people—Gilbert, Dartrell, Hunter, Rice, Stacy, Cynthia Bacon,

and McCray—testified.

Gilbert—a fellow inmate with McCray—asserted in his affidavit that, “back in February

or March 1994,” he had “almost got shot by some guy they call ‘F.T.’” on Bessemore street. Gilbert

said that he saw F.T. walk over to a truck, and that a guy named “Trell” then pulled up in his car

next to the truck, which is “when the shooting started.” He said he “saw F.T. commit the crime”

and “get into [the] car with Trell” and that “F.T.’s real name is ‘Anthony Jones.’” But at the

evidentiary hearing, Gilbert testified that he did not “actually see the shooting,” and that he

identified F.T. as the gunman only because he heard other people saying that name, not because he

recognized Jones.

Dartrell, for his part, recanted his trial testimony at the evidentiary hearing. He said that

McCray was not the shooter; that he did not know who had killed Leonard; that police had

threatened to charge him with Leonard’s murder and to revoke his probation unless he signed a

statement saying that McCray was the killer; and that, before the trial, the prosecutor told him to

“stick with the statement”—which Dartrell said he perceived to mean that if he testified differently,

he would be in trouble.

Hunter—who was serving time with Dartrell—testified that Dartrell had told him that

Dartrell and Jones had pinned the murder on McCray to get Dartrell’s brother, Dante, out of police

custody. According to Hunter, Dartrell had also said that the prosecutor had threatened Dartrell

with “some kind of charge” when Dartrell later tried to communicate that information to McCray’s

lawyer. On cross-examination, Hunter acknowledged that Dartrell might have shared this

12 No. 18-2001, McCray v. Tanner

information with him because Hunter knew that Dartrell had testified against McCray at trial—

and that Dartrell did not “want to be pegged as a rat” because, in prison, Dartrell “had the image”

that “he hated rats.”

Rice—who was McCray’s aunt—said in an affidavit that she was in her house on the day

of the shooting, when she heard gunshots. She said that “when the shooting had ceased” she looked

out her window and saw “Anthony Jones running to Dartrell Effinger’s” car and get in. She added

that she saw her nephew, Stacy, standing across the street. She also said that she did not see

McCray “out there during any of this.” At the evidentiary hearing, however, Rice did not recall

seeing someone running to Dartrell’s car, and instead testified that, when she had looked out her

window after the shooting, she saw “someone dressed in black,” a “slender guy,” “run across the

field” near the crime scene. She also admitted that she had never provided this information to the

police or to McCray’s lawyer.

Stacy—McCray’s brother—said in an affidavit that, on the day of the murder, he saw a

man named “Tony” standing next to Leonard’s Suburban just before the shooting. He also said he

heard gunshots, ran to the side of a nearby house, and saw “Tony run and get into the car with

Trell.” He said that his brother, McCray, “was not on Bessemore when this took place.” During

the evidentiary hearing, Stacy testified that “Tony” was Jones, and that Jones also went by the

name “F.T.” He also asserted that he had run into Perrin during McCray’s 1994 trial, and that

Perrin said that he might have mistaken him for his brother, McCray.

A third member of the McCray family—his sister, Bacon—testified that McCray had been

babysitting her children at the time of the shooting. And Derrick Ross—who lived in the house

on Bessemore Street struck by Leonard’s car—said in an affidavit that, on the day of the shooting,

he “heard a loud crash, something had hit my house.” (We refer to Derrick by his first name to

13 No. 18-2001, McCray v. Tanner

distinguish him from his mother, who testified at trial.) He said that when he ran outside, he saw

a “black man, age 18 to 23, about 5'7", dark complexion, wearing a black hat and jacket running

from” Leonard’s vehicle. He said that man was not McCray. Derrick did not testify at the

evidentiary hearing.

Finally, McCray himself said in an affidavit that he “was not on Bessemore” Street when

the shooting occurred and that he was “not clean shaven on the day of the crime,” or when he was

arrested. During the evidentiary hearing, he testified that he did not shoot Leonard and that he

“was over at his sister’s house baby-sitting” when the murder happened. He also said that Dartrell

had visited him in jail and told him that “it was Anthony Jones who shot” Leonard.

Based on those affidavits and testimony, the district court concluded that McCray had made

“a colorable showing of actual innocence,” and denied the state’s motion to dismiss his habeas

petition as untimely under 28 U.S.C. § 2244(d)(1). The district court then granted McCray another

evidentiary hearing, this time to hear testimony regarding his underlying ineffective-assistance-of-

counsel claim. During that hearing, as relevant here, McCray’s cousin, Johnny, testified that he

too had been on Bessemore Street during the shooting and had not seen McCray at the scene.

In September 2006, the district court conditionally granted McCray a writ of habeas corpus.

We reversed, concluding that McCray had not satisfied the actual-innocence standard because the

“sheer quantity” of McCray’s evidence was “not matched by its quality.” McCray v. Vasbinder,

499 F.3d 568, 573 (6th Cir. 2007). We concluded that reasonable jurors “surely could discount”

McCray’s self-serving testimony; and that the same was true for the testimony of McCray’s

relatives, who had a “personal stake in exonerating” him. Id. Moreover, none of those relatives

(according to the testimony at the hearing) had seen the shooting, and none had provided much

explanation for waiting years to come forward with purportedly eyewitness testimony to exonerate

14 No. 18-2001, McCray v. Tanner

their family member. Id. We also noted that, of McCray’s eight witnesses, seven of them—

McCray and his three relatives as well as Ross, Gilbert, and Hunter—by their own testimony, had

not witnessed the shooting. That left Dartrell’s testimony, whose “about face” about the identity

of the shooter at the evidentiary hearing we deemed questionable, especially in light of evidence

that he had a motive to avoid being “pegged as a rat” in prison. Id. We therefore determined that

McCray’s family members and other witnesses had done little to undermine the trial testimony of

Perrin—a disinterested, third-party witness who had seen the shooting at close range. We therefore

held that McCray had not shown that “no reasonable juror would have found him guilty beyond a

reasonable doubt.” Id. at 571, 574 (alteration omitted).

3.

Yet a few months later McCray moved under Rule 60(b) for relief from the district court’s

judgment dismissing his habeas petition. (McCray at first sought from this court an order

authorizing him to file his motion as a second or successive habeas petition, but we concluded

such an order was unnecessary and remanded. See In re McCray, No. 08-1803 (6th Cir. Apr. 30,

2009) (Order).) McCray asserted that he had still more new evidence of his purported innocence,

this time in the form of an affidavit from Dante Effinger (Dartrell’s brother). Dante said that—

during the police lineup—he had overheard Perrin say that McCray “could be the shooter but I am

not sure.” Dante also asserted that, afterward, Perrin approached him and said that “he wasn’t sure

if the guy he picked was the shooter,” but that a police officer had “told him that it was.”

The district court considered Dante’s affidavit, but observed that Perrin was cross-

examined on similar grounds at trial. Nor, the district court said, did Dante’s affidavit undermine

Dartrell’s trial testimony that McCray was the killer. The court therefore denied McCray’s Rule

60(b) motion.

15 No. 18-2001, McCray v. Tanner

McCray moved for reconsideration, attaching two more affidavits, one from Redrick

Character (who was incarcerated with one of McCray’s friends) and one from Demetrus Smith.

Character claimed in his affidavit that he had been “reading cases” in prison and had come across

McCray’s. He further asserted that—on the day Leonard was shot—he had been on Bessemore

Street “all day hustling and shooting dice”; that he “personally witnessed this shooting”; and that

McCray “was not the shooter.” Instead, Character said, a man named “Ant” had gotten out of

“Trell’s” blue car, shot Leonard, and then jumped back in “Trell’s” car and fled the scene. He

added that, “a day or so later,” “Trell” told him that the shooting was a result of some “beef”

between “Ant” and Leonard.

Demetrus Smith said in his affidavit that Perrin (the state’s key eyewitness at trial) was his

father and that—after Smith had been incarcerated—Perrin told him that he had “testified as a star

witness for the prosecution in 1994 in a murder case where he knew he didn’t have the right guy,

but the police detectives in charge of the case kept telling him he did.” Smith said he had met

McCray in prison by “pure happenstance,” which prompted him to come forward with this

information.

Based on these two affidavits, McCray requested a new evidentiary hearing, which the

district court granted. At McCray’s request, however, the court canceled the hearing (McCray

apparently had trouble locating his witnesses) and denied McCray’s motion for reconsideration

without prejudice.

In August 2016, McCray renewed his Rule 60(b) motion and his request for an evidentiary

hearing. In support, he submitted three more affidavits. One was from his cousin, Marcus McCray,

who said that he too had witnessed the murder on Bessemore Street. Specifically, he said he had

seen “Fat Cat”—whose name was Anthony Jones—near the Suburban when the shooting began,

16 No. 18-2001, McCray v. Tanner

and that, afterward, Jones got into Dartrell’s blue car. Marcus also said he had not seen McCray

on the day of the shooting.

A second affidavit was from Antanetta Bradford, who said that, on the day of the shooting,

she had heard “several loud bangs” while walking to the grocery store. She had then “looked in

the direction of the noise” and saw a “man of medium height and build with a silver gun” walk

away from Leonard’s vehicle and get into the “passenger side of a blue car.” She added that

McCray was not the shooter, and that she did not recognize the shooter or the driver of the blue

car.

The third affidavit came (again) from Dartrell, who now said that Jones had gotten into his

car after Leonard’s murder: “I know without a doubt it was Anthony Jones, not Oyd ‘Bug’ that

left the scene with me.” He added that he never got “a good look” at the shooter and that, at trial,

he had testified that McCray was the gunman due to “fear and coercion.”

The district court thereafter ordered another evidentiary hearing, which it held in June

2017, and during which Bradford, Dante, and Character testified. Bradford testified that the

shooting “felt like yesterday,” but now said she had seen the shooting before she heard it. (In her

affidavit the sequence was reversed.) She also testified that the shooter was around 5'5" tall and

“a little chunky, stocky like.” (In her affidavit she said that he was “of medium height and build.”)

She also testified that McCray was not the shooter, identified a picture of Jones as the gunman,

and said she had not come forward with that information sooner because she was “scared.”

Dante testified at the hearing that he had been in the police lineup alongside McCray, and

heard Perrin say, “I’m really not sure if that’s him.” Dante added that “basically someone else

[was] telling him, that’s him.” Dante also said that, when police released him after the lineup,

17 No. 18-2001, McCray v. Tanner

Perrin had approached him outside the police station, saying that he had picked someone out of

the lineup but that he did not “think that is the guy who done it.”

That left the testimony of Character, who now said that he had been walking through a field

near Bessemore Street on the day of the murder, and that he had seen a man named “Fat Cat” shoot

Leonard and then get into a blue car. Character identified a picture of Jones as the man he knew

as Fat Cat. On cross-examination, Character freely admitted that he had lied (“false statement”)

both when he said in his affidavit that he had been on Bessemore Street all day on the day of the

shooting, and when he said he had learned about McCray’s conviction by “reading cases.”

Character also could not remember describing the shooter as “Ant” in his affidavit, saying he knew

him only as “Fat Cat.”

McCray also submitted some new documentary evidence at the hearing, including the

police department’s homicide file from Leonard’s murder, Dante’s statement to the police, and

Anthony Jones’s criminal history and booking photo. McCray also filed, for the first time, the

transcript from the preliminary examination that the trial court had held a few weeks after

Leonard’s murder, at which Jones and Perrin testified.

In August 2018, the district court entered an order denying McCray’s motion for

reconsideration, finding again that McCray had not met the Supreme Court’s standard from Schlup.

This appeal followed, though our court held it in abeyance for nearly five years pending review by

Wayne County’s Conviction Integrity Unit. That unit has completed its review, and the case is

now before us.

II.

We review the district court’s order denying McCray’s Rule 60(b) motion for an abuse of

discretion. Gillispie v. Warden, London Corr. Inst., 771 F.3d 323, 327 (6th Cir. 2014).

18 No. 18-2001, McCray v. Tanner

The “actual-innocence” standard that McCray must satisfy here is among the most

demanding in federal law. McCray wants the district court to adjudicate his underlying habeas

petition, which everyone agrees is untimely. And a district court may consider an untimely habeas

petition only if the petitioner shows that, “more likely than not, in light of the new evidence, no

reasonable juror would find him guilty beyond a reasonable doubt[.]” House v. Bell, 547 U.S.

518, 538 (2006) (emphasis added); see also Schlup, 513 U.S. at 321, 327. When making that

determination, 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 (cleaned up); Keith v. Hill, 78

F.4th 307, 315 (6th Cir. 2023).

We begin with the state’s key eyewitness, Perrin, who undisputedly was a disinterested

observer who witnessed Leonard’s murder from a mere car’s length away. Perrin described the

shooter as a black male with dark skin, between 5'3" and 5'7", and weighing from 145 to 150

pounds—a description closely resembling McCray, a black male who had a dark complexion and

was 5'6" and weighed 165 pounds at the time of the murder. Perrin identified McCray in a lineup

and has since testified repeatedly and unequivocally that McCray was the man he saw kill Leonard.

The question in this appeal is whether—notwithstanding Perrin’s disinterested eyewitness

testimony—“no reasonable juror” could find McCray guilty beyond a reasonable doubt in light of

the new evidence he has presented here. House, 547 U.S. at 538.

19 No. 18-2001, McCray v. Tanner

As an initial matter, we see no reason to revisit our conclusions as to the seven witnesses

whose testimony we considered in McCray’s last appeal. See McCray, 499 F.3d 573-74. We

reiterate our determination that, for a variety of reasons, none of those witnesses’ accounts are

“reliable evidence” that would compel every reasonable juror to acquit McCray—even when

considered together with the evidence McCray presents here. House, 547 at 537; McCray, 499

F.3d at 573-74.

In this appeal, we consider the testimony of McCray’s five new witnesses, in addition to

yet another account of the murder from Dartrell. Three of these witnesses come to us only by way

of affidavit. Dartrell is one of them, and offered his third version of the events on Bessemore

Street that day. To reiterate somewhat, Dartrell originally told police in a statement and testified

at trial that McCray was the killer. He later recanted that testimony in two affidavits and at an

evidentiary hearing. In the affidavit before us now, Dartrell said that Jones got into Dartrell’s car

after Leonard’s murder and left the scene with Dartrell—none of which Dartrell had said in a prior

affidavit or in his testimony at trial or during the first evidentiary hearing. He also said that he did

not get a “good look” at the shooter, and that he testified at trial that McCray was the killer because

the police had threatened him. But a reasonable juror could easily view Dartrell’s latest affidavit

with “extreme suspicion” and discount it. McCray, 499 F.3d at 574 (cleaned up).

A second affidavit comes from Marcus McCray—who is now the fifth member of

McCray’s family (not including McCray himself) who claims to have been present on Bessemore

Street for the shooting that day—and who like all the others did not come forward with his

testimony exculpating McCray until years afterward. Marcus, for his part, says he saw Jones near

20 No. 18-2001, McCray v. Tanner

Leonard’s Suburban when the shooting began and then saw Jones get into Dartrell’s car. He also

says that McCray was not on Bessemore Street when Leonard was killed. Suffice it to say that a

reasonable juror could find Perrin’s testimony more credible than that of McCray’s family

members.

The remaining affidavit came from Demetrus Smith, who said his father, Perrin, visited

him when Smith was in prison in 1996. Smith said Perrin expressed doubts about his testimony

identifying a killer in a 1994 murder trial. Smith also said that—13 years later and by “pure

happenstance”—he found himself incarcerated with McCray, and only then realized that McCray

was the man against whom his father had testified. His affidavit thus amounts to hearsay long

after the fact, from a fellow inmate; and we see no reason why every reasonable juror would find

his affidavit convincing.

McCray’s three other witnesses—Dante, Bradford, and Character—each submitted an

affidavit and testified at an evidentiary hearing. Dante said that he was in the police lineup with

McCray, that Perrin said he was not sure that McCray was the killer, and that an officer assured

Perrin that McCray was. Dante further testified that, after the lineup, Perrin approached him

outside the building and said he was unsure whether he had correctly identified the gunman.

Nothing in the record suggests, however, that Perrin knew or otherwise had any reason to confide

in Dante. And Dante’s only explanation for waiting 14 years to come forward with this

testimony—namely, that he did not realize how “important” it was—could likewise leave many if

not most reasonable jurors skeptical of his account.

Bradford said in her affidavit that she had witnessed the shooting’s aftermath, rather than

the shooting itself. Specifically, she said that—after Leonard’s Suburban finally rolled into a

nearby house—she saw a man of “medium height and build” walk away from Leonard’s vehicle

21 No. 18-2001, McCray v. Tanner

and get into a blue car. That description resembled McCray, who was 5'6" and 165 pounds at the

time of the murder. When Bradford testified at the evidentiary hearing, however, she claimed to

have witnessed the shooting itself. She also changed her description of the purported shooter,

saying he was around 5'5" and “chunky.” But Bradford testified more than a decade after the

shooting, rather than (as Perrin had) a short time afterward; and the district court itself noted that

Bradford’s memory appeared shaky.

That leaves Character, who said in his affidavit that he had been on Bessemore Street all

day “hustling and shooting dice” when he purportedly witnessed the shooting. Yet during the

hearing he said that he had been walking through a field near Bessemore when he saw “Fat Cat”

(whom he identified as Jones) shoot Leonard and then get into a blue car. Moreover, as noted

above, Character freely admitted on cross-examination that he had lied both when he said in his

affidavit that he had been on Bessemore Street all day on the day of the shooting, and when he

said he had learned about McCray’s conviction by “reading cases.” And Character also could not

remember describing the shooter as “Ant” in his affidavit, saying he knew him only as “Fat Cat.”

His testimony was patently not credible.

Most of what we said in McCray’s last appeal therefore remains true here: that most of

McCray’s new evidence “consists of testimony (or affidavits) from people who did not witness the

shooting and a recantation from an eyewitness [Dartrell] with a motive for dissembling”; that

Perrin “had no reason to lie about the murder” and “had a bird’s-eye view of the shooting”; and

that the “quantity” of McCray’s evidence “is not matched by its quality.” McCray, 499 F.3d at

573, 575. And McCray’s more recent effort to pin the murder on Jones—who was 5'8" and 265

pounds at the time of the shooting—founders on Perrin’s consistent and contemporaneous

testimony that the shooter was around 5'5" and weighed a hundred pounds less than that.

22 No. 18-2001, McCray v. Tanner

Yet McCray says the district court abused its discretion by disregarding the evidence we

considered in McCray’s prior appeal and by considering each of McCray’s new pieces of evidence

in isolation. But the record shows that the district court did not consider McCray’s evidence merely

in isolation. And more to the point, his evidence fares no better collectively than individually.

McCray’s use of the homicide file is representative. McCray apparently introduced that file to

bolster Dartrell’s recantations and to suggest that “false leads” had led to McCray’s arrest. But

that file also contains a statement from Leonard’s girlfriend, Parrish, who told police that McCray

sold drugs for Leonard and owed Leonard money. Dartrell’s initial statement to police—in which

he said he also had heard McCray owed Leonard money—corroborated those observations. That

file also contains Jones’s statement to police, in which he said that, just before the shooting, he

overheard Leonard tell McCray that “if I don’t get the title to the BMW signed over to me by the

end of the day I will kill you.” (The record also corroborates that statement—Parrish told police

that McCray had a yellow BMW.)

McCray has not remotely met the Supreme Court’s actual-innocence standard in House.

The district court therefore did not abuse its discretion when it denied McCray’s Rule 60(b) motion.

* * *

The district court’s August 17, 2018 order is affirmed.

23 No. 18-2001, McCray v. Tanner

KAREN NELSON MOORE, Circuit Judge, dissenting. Oyd McCray was convicted of

first-degree murder after a two-day trial in Michigan state court. No physical evidence connected

McCray to the murder. And of the state’s two witnesses that placed McCray as the murderer, one

has since fully recanted and now points to another man as the killer. The majority agrees that a

life-without-parole sentence now rests on a single-eyewitness account. That eyewitness’s

identification was shaky from the start. Since trial, McCray has marshaled substantial new

evidence that shows that he is likely innocent. In fact, it shows who likely did kill Perry Leonard:

Anthony Jones. The vast majority of this new evidence is consistent, corroborative, and credible.

Under the weight of this evidence, the slender reed on which the state rested its case buckles. But

the majority proceeds by ipse dixit, declaring that certain evidence should not count because it says

it should not count. It proceeds in piecemeal fashion, finding inconsequential issues, blinding

itself to the consistent threads showing McCray’s innocence. This approach is inconsistent with

the record and the law. At this juncture, all that McCray asks for is a day in federal court so that

the district court may consider his habeas petition on the merits. Because the majority is wrong to

deny McCray that narrow relief, I respectfully dissent.

From the outset, the majority misunderstands its task. It declares that the “standard

McCray must satisfy here is among the most demanding in federal law.” Maj. Op. at 19. Though

demanding, the genesis of the gateway standard, Schlup v. Delo, is not impossible to meet, as the

majority appears to think. 513 U.S. 298, 316 (1995) (explaining that “evidence of innocence” for

a gateway claim “need carry less of a burden” than other types of claims because the “claim of

innocence [is paired] with an assertion of constitutional error”). Consistent with that guidance,

this court and the Supreme Court have recognized that a petitioner can successfully meet their

burden by showing less than “conclusive exoneration,” House v. Bell, 547 U.S. 518, 553 (2006),

24 No. 18-2001, McCray v. Tanner

including by “dismantl[ing] the government’s case against” them, Keith v. Hill, 78 F.4th 307, 315

(6th Cir. 2023) (Kethledge, J.), cert. denied sub nom. Keith v. May (2024). Whether through

building an affirmative case or by attacking the evidence that supported a petitioner’s guilt, all that

is required is that a petitioner show that it is more likely than not that no reasonable juror would

convict. See, e.g., House, 547 U.S. at 541 (“When the only direct evidence of sexual assault drops

out of the case, so, too, does a central theme in the State’s narrative linking [the petitioner] to the

crime.”); Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005) (“[Petitioner] has presented new

evidence collected over the past several years that does raise sufficient doubt about his guilt and

that undermines confidence in the result of his trial.” (emphases added)); id. at 592 (“We conclude

that this new evidence . . . when taken together chips away at the rather slim circumstantial

evidence upon which [the petitioner] was convicted.” (internal quotation marks omitted and

alterations adopted)); Cleveland v. Bradshaw, 693 F.3d 626, 641–42 (6th Cir. 2012) (petitioner

satisfied Schlup in part by presenting recantation of witness whose testimony was “the only

evidence linking [the petitioner] to [the] murder”); McCray v. Vasbinder (“McCray I”), 499 F.3d

568, 575 (6th Cir. 2007) (recognizing that “contradict[ing] the testimony of an eyewitness” would

be a key part of showing actual innocence). When a petitioner does this, they show that it is “more

likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538.

At other times, the majority properly recites the law, but its analysis belies the very law it

invokes. We 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.” Maj. Op. at 19 (quoting House, 547 U.S. at 538). The majority’s piecemeal assessment

of the evidence, however, entirely contradicts this command. Rather than consider the consistent

narrative presented, the majority looks at each piece of evidence in isolation, identifying small

25 No. 18-2001, McCray v. Tanner

inconsistencies and effectively holding each piece up against Perrin’s trial testimony. At times, it

goes so far as to suggest that certain evidence could not be admitted at trial, directly contrary to

what we must consider at this juncture according to House. See Maj. Op. at 21. In so doing, the

majority loses the forest for the trees.

What is more, the majority comes up with unfounded per se rules for throwing out

compelling evidence without considering it at all, and certainly not in combination with other

evidence. Although this court previously held that certain evidence presented by McCray did not

make a showing of actual innocence at that time, McCray I, 499 F.3d at 573–74, McCray has

presented substantial new evidence that corroborates that old evidence and makes it all the more

compelling today. Simply disregarding this evidence is at odds with the totality-of-the-

circumstances approach we must take. Peppered throughout the majority opinion are indications

that evidence that comes from fellow inmates, or family members, or from witnesses that saw the

immediate aftermath of the shooting but not the shooting directly simply counts for nothing. See

Maj. Op. at 21, 22. Although those may be reasons further to scrutinize evidence, the majority’s

conclusory decisions to declare evidence incredible betrays the proper inquiry.

Properly framed, McCray has proven his actual innocence both by entirely dismantling the

state’s weak case and by affirmatively showing that he was not the shooter. First, a combination

of the evidence directly contradicts the lone standing eyewitness’s account. McCray I, 499 F.3d

at 574. From the beginning, Perrin’s identification has rested on an uncertain foundation. Perrin

had admitted issues identifying McCray in the lineup, because McCray had facial hair whereas

Perrin recalled that the shooter did not. Moreover, evidence that the panel considered in McCray

I suggested that Perrin was mistaken, given competing versions of the immediate aftermath of the

shooting. See, e.g., R. 14 (Stacy McCray Aff. at 1) (Page ID #47) (Anthony Jones was at the side

26 No. 18-2001, McCray v. Tanner

of Leonard’s vehicle, fled the scene in Dartrell Effinger’s car, and McCray was not on Bessemore

Street); R. 14 (Ross Aff. at 1) (Page ID #48) (McCray was not the one running from the Suburban);

R. 14 (Rice Aff. at 1–2) (Page ID #50–51) (Jones fled the scene in Dartrell Effinger’s car and

McCray was not on Bessemore); R. 14 (Gilbert Aff. at 1) (Page ID #51) (similar); R. 106-1

(Hearing Tr. at 61:4–63:9) (Page ID #1365–67) (explaining that McCray was at Bacon’s home

watching children when shooting occurred).

Additional new information not considered by this court in McCray I now suggests that

Perrin’s eyewitness identification, essentially the state’s entire case, should be discounted. The

preliminary-examination transcript further demonstrates that Perrin was unsure of his

identification of McCray. R. 96-5 (Preliminary Examination at 35:10–22) (Page ID #1120) (Perrin

stated that the shooter “could be No. 3” and did not recall the shooter having facial hair). The

homicide file likewise undermines confidence in Perrin’s account; at the lineup, Perrin stated only

that McCray “looks like [the shooter]” and that McCray again had no mustache during the

shooting. R. 96-1 (Homicide File at 84–85) (Page ID #937–38). Now, two affiants have come

forward with further statements from Perrin showing that Perrin’s initial identification could not

have supported a conviction. First, Demetrus Smith, Eric Perrin’s son, explained that Perrin

admitted to misidentifying McCray at the lineup while under pressure from the police. R. 78-4

(Smith Aff. at 1) (Page ID #466). Presumably, Smith would have an incentive not to state that his

father was critically incorrect. Cf. McCray I, 499 F.3d at 572–74 (explaining that a court should

be cautious in crediting family-member testimony due to their personal stake in a matter). Second,

Dante Effinger averred in a manner entirely consistent with the homicide file and Perrin’s

preliminary-examination testimony that Perrin said that “number three could be the shooter but I

27 No. 18-2001, McCray v. Tanner

am not sure,” and that Perrin admitted that he was unsure about his identification after the lineup.

R. 78-3 (Dante Effinger Aff. at 1) (Page ID #465).

A combination of the evidence goes further, by both contradicting Perrin’s account and by

showing that Anthony Jones was the likely shooter. For one, Perrin’s own trial testimony in

combination with the homicide file and preliminary-examination testimony shows that Anthony

Jones, not McCray, likely shot Leonard. A key detail from Perrin’s trial testimony was that after

McCray finished shooting Leonard, McCray walked to Dartrell Effinger’s blue Malibu and left the

scene with Effinger. R. 19 (Trial Tr. at 62:24–64:24) (Page ID #529–31). No one else was in the

vehicle according to Perrin. Id. Anthony Jones testified at the preliminary examination, however,

that he left the scene in Effinger’s car after the shooting, and that McCray was not even on

Bessemore Street. R. 96-5 (Preliminary Examination at 8:13–15, 14:5–15) (Page ID #1094, 1100).

Jones’s preliminary-examination testimony is consistent with both Jones’s own statement to the

police, R. 96-1 (Homicide File at 167) (Page ID #1020) (explaining that Jones ran back to

Effinger’s car after the shooting), and Dartrell Effinger’s statement to the police, id. at 162 (Page

ID #1015) (stating that Effinger and Jones left the scene after the shooting in Effinger’s car and

that McCray ran off into a vacant lot).

The state entirely fails to address this critical point concerning Perrin’s claim that the

person who got into Effinger’s car was the shooter. So, too, does the majority. Perrin’s trial

testimony and Jones’s and Effinger’s preliminary-examination testimony and statements to the

police cannot coexist. Either Perrin witnessed the shooter enter Dartrell Effinger’s car and leave

with him, making the shooter Jones, or the shooter did not leave the scene with Dartrell Effinger,

seriously undermining Perrin’s identification. Jones’s statement that he got into Effinger’s car after

28 No. 18-2001, McCray v. Tanner

the shooting in combination with Perrin’s trial testimony is plainly a statement against Jones’s

interest: it suggests that Jones was the shooter, not McCray.

Witness affidavits and testimony—both those presented to the district court before McCray

I and those that post-date the decision—bolster the conclusion that Jones, rather than McCray, shot

Leonard. Some of that evidence includes witness statements that the prior panel held were not

sufficient, standing alone, to satisfy the requirements of an actual-innocence gateway claim, either

due to the fact that the evidence came from McCray’s family or because the affiant did not directly

witness the shooting. In other words, despite the holding in McCray I that the evidence presented

at that time did not clear Schlup’s hurdles, McCray is not starting from square one. Rather, he has

already presented substantial evidence that (1) he was not at the scene of the crime in the immediate

aftermath of the shooting; (2) Anthony Jones was; and (3) Jones left with Dartrell Effinger.

Because it is the totality of the evidence that matters, prior evidence that has now been corroborated

deserves weight today.

The new witness affidavits and testimony play this corroborating role. With this

corroboration, evidence this court once held insufficient standing alone is seen in a new light.

Marcus McCray submitted an affidavit stating that he directly witnessed the shooting and that it

was done by “Fat Cat,” whose real name is Tony. R. 88-2 (Marcus McCray Aff. at 1) (Page ID

#787). Marcus McCray’s affidavit is consistent with the details presented in other evidence,

including that Jones left the scene in the blue Malibu with “Trell.” Id. And Bradford’s affidavit

and testimony reiterate the same. She directly witnessed the shooting, saw the shooter get into a

car after the shooting, and explained that the shooter was not McCray. R. 88-3 (Bradford Aff. at

1) (Page ID #790). Although Bradford had some difficulty remembering certain specific details

during her testimony, she clearly identified Anthony Jones as the shooter. R. 97 (2017 Hearing Tr.

29 No. 18-2001, McCray v. Tanner

at 12:23–13:1) (Page ID #1147–47). Again, Bradford did not offer her statements in a vacuum;

the thrust of her recollection is entirely consistent with the other evidence. In all, nearly every

witness statement and piece of documentary evidence tells a consistent story about who was at the

scene (Jones), who was not (McCray), and who left with Dartrell Effinger (Jones).

Finally, a combination of the evidence supports Dartrell Effinger’s recantation and lends

credibility to it. Dartrell Effinger submitted another affidavit after McCray I, explaining that

Anthony Jones left the crime scene with him, that he could not identify who was standing near

Leonard’s vehicle, and that he had testified that it was McCray who shot into Leonard’s vehicle

only due to police-created “fear and coercion.” R. 88-4 (Dartrell Effinger 2010 Aff. at 1) (Page ID

#793). Dartrell Effinger’s new statements are consistent with his prior affidavit. See R. 14

(Effinger Aff. at 1) (Page ID #53) (stating that Effinger could not identify who was standing near

the Suburban and that the police threatened Effinger with potential charges); R. 106-1 (Hearing Tr.

at 19:13–20:1, 22:1–6) (Page ID #1323–24, 1326) (same). But so too are his affidavits

corroborated by each and every other witness that McCray presented that explained either that (1)

McCray was not at the scene; (2) Jones was the one standing by Leonard’s car immediately prior

to the shooting; (3) Jones was the one who entered Dartrell Effinger’s blue Malibu after the

shooting; or (4) Jones was the shooter.

Moreover, Dartrell Effinger’s recantation is consistent with Jones’s testimony at the

preliminary-examination hearing that Jones was forced by the police to make certain statements

about the shooting, as well as evidence that the police may have leveraged Jones’s and Dartrell

Effinger’s criminal exposure against them. See R. 96-5 (Preliminary Examination at 11:10–12)

(Page ID #1097) (testimony pertaining to police forcing Jones to make statement); R. 96-1

(Homicide File at 25) (Page ID #878) (notice of parole violation for Jones following his recanting

30 No. 18-2001, McCray v. Tanner

statements at the preliminary examination). And as with Jones’s statements, Dartrell Effinger’s

recantation tends plausibly to inculpate him as an accomplice to Jones’s crime, further suggesting

that it is credible. See, e.g., Cleveland, 693 F.3d at 640 (“In sum, the fact that [the recanting

witness] had no motive to recant his testimony but instead sought to do so on his own free will,

and has not subsequently withdrawn that testimony, lends it credibility.”).

No doubt, individual pieces of the evidence have their issues. But those issues merely

show that, standing alone, any one piece of evidence would fail to meet the Schlup standard.

McCray, however, has presented sufficient evidence that, on the whole, would lead no rational

juror to convict him beyond a reasonable doubt. Like the state in this case, the majority has failed

to point out inconsistencies across affidavits and documents presented by McCray. The issues that

the majority identifies simply call for further scrutiny of certain witness statements. With respect

to Bradford, obviously certain details were not crystal clear. These minor details, however, hardly

go to McCray’s guilt, particularly in light of Bradford’s insistence that she directly witnessed the

shooting and her positive identification of Jones as the shooter. Contrary to the majority’s view,

Bradford gave a description of the shooter prior to identifying Jones that is consistent with Jones’s

appearance: “chunky” and “stocky.” R. 97 (2017 Hearing Tr. at 12:9–14) (Page ID #1146).

Bradford stated that the shooter may have been 150 or 160 pounds only after prompting from the

state and after explicitly explaining that she had difficulty estimating body weights. Given the

overall consistency of Bradford’s statements with the other evidence, such insignificant

inconsistencies do little to undermine her statements.

The same is true for Demetrus Smith and Dante Effinger. As with statements from Dartrell

Effinger and Anthony Jones, the statements from Smith and Dante Effinger are not self-interested

and potentially inculpate family members. For example, Dante Effinger’s statements concerning

31 No. 18-2001, McCray v. Tanner

Perrin’s issues identifying the shooter increase Dante Effinger’s own criminal exposure and that

of his brother, because both Effinger brothers appeared to be suspects at one point. Likewise,

Smith’s statements concern his father’s misidentification of the shooter. Presumably, Smith would

have little incentive to disparage his father unless the information was important. Although the

majority is correct that it took both witnesses time to come forward, the statements are consistent

with the wealth of the evidence produced to date. And a reasonable explanation exists for why

Dante Effinger sat on the information: he was a suspect in the murder.

Successfully meeting Schlup’s standard does not entitle a petitioner to any affirmative

relief: it just allows a petitioner to have their day in federal court. To date, thirteen witnesses have

filed sworn statements or testified either that McCray was not at the scene of the shooting or that

Anthony Jones actually shot Leonard. Several of these witnesses are either disinterested or have

testified in a manner that goes against their own self-interest. Substantial other evidence, including

the homicide file itself, corroborates those statements. The only non-recanting eyewitness to the

shooting, Eric Perrin, testified that the shooter left in the blue Chevrolet Malibu. Either Perrin is

to be believed, in which case he misidentified McCray when he saw Jones, or his testimony as the

only non-recanting witness is not credible, eviscerating the state’s thin case. The majority declines

to grapple with, let alone address, this core issue. Confronted with the wealth of evidence

undermining Perrin and affirmatively exculpating McCray, any reasonable juror would have a

reasonable doubt about McCray’s guilt. At this stage, that is sufficient for McCray to continue

litigating this case. McCray has satisfied the Schlup standard and should be allowed to proceed

with his habeas petition. For those reasons, I respectfully dissent.