Houston v. Tanner: Clarifying “Facts Underlying the Claim” and Actual-Innocence Gateways in Successive Habeas Petitions
I. Introduction
This commentary examines the Sixth Circuit’s published decision in Houston v. Tanner, No. 24‑1963 (6th Cir. Nov. 21, 2025), a successive federal habeas corpus case involving a Michigan murder conviction. The case sits at the intersection of several restrictive doctrines under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA):- The gatekeeping requirements for successive state-prisoner habeas petitions under 28 U.S.C. § 2244(b)(2)(B);
- The “actual innocence” gateway for bypassing procedural and timeliness barriers (drawing on Schlup v. Delo and McQuiggin v. Perkins); and
- The standards for crediting late, prison-generated affidavits and recantations.
- How to interpret § 2244(b)(2)(B)(ii)’s phrase “facts underlying the claim, if proven”: the court holds that “proven” refers to the facts that establish the constitutional violation (e.g., what competent counsel would have done), not to the ultimate narrative of innocence contained in new affidavits.
- How strictly courts should scrutinize new affidavits and recantations when applying both § 2244(b)(2)(B) and the equitable actual-innocence gateway: the panel reaffirms that such affidavits, especially when delayed and prison-generated, are presumptively unreliable absent strong corroboration.
- He fails the demanding innocence gateway under § 2244(b)(2)(B)(ii); and
- He cannot obtain equitable tolling based on actual innocence under McQuiggin/Schlup.
II. Factual and Procedural Background
A. The Underlying Homicide and Trial Evidence
In the early morning of September 6, 2002, Carlton Thomas was fatally shot in a high drug-trafficking area of Detroit, in a vacant lot on Buena Vista Street. Key features of the crime scene and medical evidence:- Carlton had four gunshot wounds (left knee, left front side, left side, and right cheek), each with an exit wound.
- No bullets or shell casings were recovered.
- Carlton had no money on his person when police recovered his belongings.
- Crooks reported that Houston had threatened him with a gun and assisted police in locating and arresting Houston.
- After Houston’s arrest, Crooks claimed he had seen Houston shoot Carlton.
- Police also arrested Johnson on drug charges; when re-interviewed, Johnson identified Houston as the shooter.
- Crooks’s account: He claimed he was parked near the lot selling drugs; Houston, Johnson, and Houston’s girlfriend were on a porch; an argument erupted when a man entered the vacant lot; Houston asserted control of the drug territory, went inside to get a gun, fired a shot that hit the man (including in the face), then searched the victim’s pockets and fired additional shots.
- Johnson’s account: He corroborated that they were together on the porch and that Houston chased and shot the victim multiple times near a tree, then ordered Johnson to check whether Carlton was dead. Johnson claimed the victim was still alive when he checked but lied to Houston about it. He did not observe a return to the house for a gun, any search of pockets, or the racial slur Crooks recounted, and he did not see Crooks or his car.
B. First Round of Review: Direct Appeal and Initial Federal Habeas
Houston pursued direct appeal and state post-conviction relief, all unsuccessful. He then filed his first federal habeas petition, which the Eastern District of Michigan denied in 2011 (Houston v. Ludwick, 2011 WL 1135465 (E.D. Mich. Mar. 25, 2011)).C. Second Round: New Affidavits and State Collateral Proceedings
In 2016—roughly fourteen years after the crime—Houston returned to state court with a new motion for relief from judgment, asserting:- Ineffective assistance of trial counsel for failure to investigate potential witnesses, especially Buena Vista resident Nicole Thomas; and
- “New evidence” of innocence: an affidavit from Tony Miller.
- Miller claimed he was outside Nicole’s home at around 4:00–4:30 a.m. on the night of the shooting, waiting in his car to pick her up.
- He allegedly saw Crooks and a woman in Crooks’s car; two men, one with a bicycle, approached.
- After the man with the bicycle ran away, Crooks chased the remaining man into the vacant lot and shot him several times.
- Miller said he then left without Nicole and never told her what he had seen.
- Miller met Houston in prison in 2010 and executed the affidavit twelve years after the homicide.
D. Federal Successive Petition, CIU Review, and District Court Ruling
Houston then pursued federal relief again:- He sought authorization from the Sixth Circuit under § 2244(b) to file a successive habeas petition, premised on ineffective assistance of counsel (failure to investigate Nicole/Miller) and actual innocence.
- The federal district court stayed the case while the Wayne County Prosecutor’s Conviction Integrity Unit (CIU) examined Houston’s innocence claim; the CIU recommended no relief.
- The Sixth Circuit granted authorization to file the successive petition on the ineffective-assistance claim (In re Houston, No. 18‑1579 (6th Cir. Nov. 17, 2020)). Authorization only permits filing; it does not predetermine that § 2244(b)’s substantive requirements are satisfied.
- In the successive petition, Houston offered four affidavits:
- Miller’s (as above);
- Johnson’s 2013 affidavit, recanting his trial testimony and claiming Crooks had threatened to kill him if he did not implicate Houston;
- Jermaine Jones’s 2021 affidavit, attesting that Crooks was known as violent and that “everyone in the area” said Crooks committed the murder; and
- Houston’s own affidavits, asserting that he had asked his lawyer to interview Nicole and that he later learned in prison of Miller’s alleged eyewitness account.
- Found the affidavits unreliable;
- Held that Houston failed both prongs of § 2244(b)(2)(B);
- Found the petition untimely and not saved by equitable tolling based on actual innocence; and
- In the alternative, rejected the ineffective-assistance claim on the merits, and denied an evidentiary hearing.
III. Summary of the Sixth Circuit’s Opinion
Judge Larsen, writing for a unanimous panel (Chief Judge Sutton and Judge Batchelder joining), affirms the dismissal on two independently sufficient grounds:- Failure to satisfy § 2244(b)(2)(B)’s actual-innocence gateway for successive petitions.
- The court assumes without deciding that new facts must be “rooted in constitutional error” (following the Tenth Circuit’s Case v. Hatch).
- Under that assumption, only Miller’s affidavit is sufficiently connected to the asserted ineffective-assistance violation; Johnson’s recantation and Jones’s hearsay “word on the street” statements are too speculative and attenuated.
- Even taking as “proven” that counsel would have discovered Miller and Miller would have testified as in his affidavit, the court holds that no reasonable factfinder would be required to believe Miller over Crooks and Johnson, given Miller’s delay, prison connection, and lack of independent corroboration.
- Thus Houston cannot, “by clear and convincing evidence,” show that, but for constitutional error, no reasonable factfinder would have found him guilty.
- Failure to establish actual innocence for equitable tolling of AEDPA’s statute of limitations.
- Houston waives any direct challenge to the district court’s statute-of-limitations calculation by not raising it in his opening brief.
- He instead invokes the McQuiggin/Schlup actual-innocence gateway.
- Applying that (less demanding) standard—“more likely than not that no reasonable juror would have convicted”—the court holds that the same reliability problems doom the affidavits; they do not constitute the kind of “new reliable evidence” required.
IV. Precedents and Doctrinal Framework
A. AEDPA and Successive Petitions: § 2244(b)(2)(B)
AEDPA sharply restricts federal habeas review of state convictions (Cullen v. Pinholster, 563 U.S. 170 (2011)) and, in particular, successive petitions (Tyler v. Cain, 533 U.S. 656 (2001)). Under § 2244(b)(2)(B), a successive petition presenting a claim based on new facts may proceed only if:- Due diligence: “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence”; and
- Stringent actual innocence: “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.”
- Schlup v. Delo, 513 U.S. 298 (1995) (procedural default); and
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (time-bar).
B. The “Rooted in Constitutional Error” Question: Case, Clark, MacDonald, and Graham
A key interpretive question under § 2244(b)(2)(B)(ii) is:Must the new “facts underlying the claim” be tethered to the alleged constitutional error itself (e.g., ineffective trial counsel), or may courts consider any new exculpatory evidence, even if logically independent of the constitutional violation?Two competing lines of authority inform this question:
- Tenth Circuit – Case v. Hatch, 731 F.3d 1015 (10th Cir. 2013).
Case held that a petitioner “is required to tie his newly proffered facts to the claimed constitutional violation,” i.e., the new facts must be “rooted in constitutional error[] occurring during trial.” This narrows the universe of “new facts” that can be used to satisfy § 2244(b)(2)(B)(ii). - Fourth Circuit – United States v. MacDonald, 641 F.3d 596 (4th Cir. 2011).
MacDonald, interpreting the federal-prisoner analogue in § 2255(h)(1), suggested that the reference to “the evidence as a whole” allows courts to consider new evidence even if it is not itself part of the claimed constitutional violation.
- In re McDonald, 514 F.3d 539 (6th Cir. 2008). The court allowed consideration of a recanting affidavit because, if believed, it would have established all elements of the underlying Brady claim. This fits with the “rooted in constitutional error” approach.
- Clark v. Warden, 934 F.3d 483 (6th Cir. 2019). A footnote suggested that recantations may be considered in the § 2244(b)(2)(B)(ii) calculus “even when those recantations do not themselves give rise to the constitutional claim,” and cited MacDonald. But Clark acknowledged that the parties had not disputed the issue, and the footnote did not affect the outcome. Under Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019), such commentary is nonbinding dictum.
- Fourth Circuit refinement – In re Graham, 61 F.4th 433 (4th Cir. 2023). Subsequent Fourth Circuit authority noted that § 2255(h)(1) is textually “more lenient” than § 2244(b)(2)(B)(ii), casting doubt on MacDonald’s assumption that the two provisions should be treated identically.
- Acknowledges the tension but does not resolve it definitively;
- Recognizes Clark’s relevant language as dictum;
- Clarifies that McDonald does not stand for a rule allowing consideration of evidence unrelated to the constitutional claim; and
- Adopts, for purposes of this case, the Case v. Hatch requirement that new evidence be “rooted in constitutional error occurring during trial.”
C. Interpreting “Facts Underlying the Claim, If Proven”: Charboneau and Houston
Section 2244(b)(2)(B)(ii) instructs courts to assume the “facts underlying the claim” are “proven,” but then to ask whether those facts, viewed alongside the entire record, would clearly and convincingly show that no reasonable factfinder would convict. The Ninth Circuit in Charboneau v. Davis, 87 F.4th 443, 456 (9th Cir. 2023), explained that courts do not treat as “proven” the ultimate contested facts about guilt or innocence, because that would nullify the statute’s remaining requirements (“clear and convincing” standard; “evidence as a whole”). Houston expressly adopts this approach:- Courts must take as proven the predicate facts of the constitutional claim (e.g., that counsel would have interviewed a particular witness, or that the witness would have testified as described);
- But courts do not assume that every reasonable juror would believe that new testimony over existing testimony.
D. Skepticism Toward Late Affidavits and Recantations
The court follows and synthesizes several precedents that treat late, prison-generated affidavits and recantations with skepticism:- Hubbard v. Rewerts, 98 F.4th 736 (6th Cir. 2024). Emphasizes the “pall of unreliability” cast by substantial delay and prison connections; underscores that affidavits must be “reliable” to qualify as new evidence of innocence.
- United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001). States that recantation affidavits are to be viewed with “extreme suspicion.”
- Herrera v. Collins, 506 U.S. 390 (1993). (O’Connor, J., concurring) notes that death-row prisoners often can find someone new to vouch for them at the eleventh hour, warranting skepticism about late affidavits.
- McCray v. Vasbinder, 499 F.3d 568 (6th Cir. 2007). Criticizes unexplained delays in coming forward with exculpatory evidence in murder cases.
- Davis v. Bradshaw, 900 F.3d 315 (6th Cir. 2018). Highlights the corroborating value of a witness’s knowledge of “non-public” details; the absence of such independent corroboration reduces the weight of new affidavits.
E. Actual Innocence as an Equitable Gateway: Schlup, McQuiggin, and Hubbard
In addition to § 2244(b)(2)(B)’s statutory gateway, the Supreme Court has recognized a non-statutory, equitable “actual innocence” gateway that can excuse:- Procedural default (Schlup); and
- Expiration of AEDPA’s one-year statute of limitations (McQuiggin).
- The petitioner must present “new reliable evidence” (e.g., “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence”); and
- Show that, in light of this new evidence and the old trial record, “it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.”
V. The Court’s Legal Reasoning in Detail
A. The § 2244(b)(2)(B) Gatekeeping Analysis
The court reviews dismissal of a habeas petition de novo and factual findings for clear error (Hubbard). It assumes arguments about the due-diligence prong and resolves the case on prong two.1. The Two-Pronged Test and Its “Very Demanding” Nature
The panel reiterates that § 2244(b)(2)(B) establishes a “very demanding test” (quoting Justice Alito’s concurrence in Foster v. Chatman, 578 U.S. 488 (2016)):- First, the petitioner must show that the new factual predicate could not have been discovered earlier with due diligence.
- Second, and crucially here, the petitioner must demonstrate that, assuming those new facts as they relate to the constitutional violation are true, and considering all evidence, the new evidence would clearly and convincingly establish that no reasonable juror would convict.
2. Limiting the Evidence: Only Facts “Rooted In” the Constitutional Error Count
Applying Case v. Hatch, the court holds that, for purposes of this case, only new evidence that is “rooted in constitutional error occurring during trial” may be used in the § 2244(b)(2)(B)(ii) analysis. Houston’s underlying constitutional claim is ineffective assistance of counsel:- He argues his lawyer performed deficiently by refusing to investigate Nicole Thomas and other local witnesses; and
- Claims that, had counsel done so, he would have identified Tony Miller and elicited exculpatory testimony that Crooks, not Houston, was the shooter.
- Miller’s affidavit: The court accepts, for analytical purposes, the following chain:
- A reasonably diligent lawyer would have interviewed Nicole;
- Nicole would have alerted counsel that Miller was outside her home at the time of the shooting;
- Counsel would have located Miller; and
- Miller would have testified at trial consistent with his affidavit.
- Johnson’s affidavit (recantation): Houston attempts to connect this to the constitutional claim by speculating:
- Counsel’s discovery of Miller would have induced police to arrest Crooks;
- With Crooks in custody, Johnson would have felt safe defying Crooks’s threat;
- Johnson would have retracted his identification of Houston; and
- He would have testified to having lied previously due to Crooks’s intimidation.
- Jones’s affidavit (“word on the street” hearsay): Jones does not claim personal knowledge; he only says Crooks was violent and that “everyone” said Crooks committed the murder. Houston posits that a proper investigation would have armed counsel with this “word on the street.” But because this is speculation about what unnamed persons might have told counsel, the court deems it too attenuated to be rooted in the ineffective-assistance claim.
3. What Must Be Deemed “Proven” Under § 2244(b)(2)(B)(ii)?
Houston contends that the court must treat Miller’s affidavit as substantively true—i.e., as if a reasonable juror would necessarily credit Miller over Crooks and Johnson. The panel rejects this argument as inconsistent with the text and structure of § 2244(b)(2)(B)(ii):- Courts must treat as “proven” the factual premises of the constitutional claim: here, that competent counsel would have discovered Miller and that Miller would have testified in accordance with his affidavit.
- But courts may not treat as conclusively “proven” that Miller’s version is what actually happened, or that jurors would be compelled to believe him.
- The requirement to weigh evidence “as a whole” would be superfluous; and
- The “clear and convincing evidence” standard would be effectively nullified, because the statute would be directing courts to assume away the credibility inquiry entirely.
4. Applying the “Clear and Convincing” Standard to Miller’s Affidavit
The court then asks a focused question drawn from Clark:Is there a “clear and convincing reason” to believe Miller’s identification of Crooks as the shooter rather than Crooks’s and Johnson’s identifications of Houston as the shooter—“a reason that no reasonable factfinder would overlook”?Unlike in Clark, where the record was insufficient and a remand for credibility findings was required, the panel finds the existing record here adequate to answer “no.” Key reliability problems with Miller’s affidavit:
- Extraordinary delay: Miller came forward 12 years after the homicide, and four years after meeting Houston in prison. The delay, with no persuasive explanation, “casts a pall of unreliability” (Hubbard; McCray).
- Prison-originated testimony: Miller’s emergence as a witness coincides with his incarceration and acquaintance with Houston. The court quotes Herrera’s observation that, when a prisoner’s liberty is at stake, someone can often be found to vouch for him, so such affidavits deserve significant skepticism.
- Lack of independent corroboration: Although Miller’s statement mirrors certain known details (Nicole’s residence near the lot, the presence of a bicycle, Crooks’s car, a woman with Crooks, multiple shots, the vacant lot), all of these details were already in the record and known to Houston. There is no independent, non-public fact that only a true eyewitness would likely know (Davis v. Bradshaw).
- Unverifiable linkage to Nicole: Miller asserts he was outside Nicole’s home, but he admits he never told Nicole what he had witnessed; Houston claims Nicole died in 2009, so she cannot confirm any part of Miller’s story or even that she knew him.
- They both place the shooting in the vacant lot near a tree, consistent with the blood and the body’s location.
- They both describe multiple gunshots, consistent with the medical examiner’s findings.
- Crooks’s account that the victim was searched for money fits with the absence of money on Carlton’s person.
- Both Crooks and a police officer testified that Carlton was still alive when first discovered, consistent with Johnson’s testimony that he found Carlton alive but misreported his condition to Houston.
- A reasonable juror could view Miller’s affidavit as fabricated or unreliable;
- A reasonable juror could still rely on Crooks’s and Johnson’s testimony (despite their flaws) to convict; and
- Houston has not furnished a clear and convincing reason compelling belief in Miller over the trial evidence.
5. Even With Johnson and Jones Considered, Houston Still Fails
The court goes further, assuming arguendo that Johnson’s recantation and Jones’s hearsay affidavit were properly considered. Even then, they do not suffice.- Johnson’s recantation:
- Recantations are viewed with “extreme suspicion” (Willis).
- Johnson waited over ten years to recant.
- His accounts have shifted repeatedly: first denying knowledge of the shooting; then testifying he saw it; then claiming police threats at the prelim; then downplaying police pressure at trial; and now blaming Crooks’s threats in the affidavit.
- These shifting narratives drastically undermine his credibility.
- Jones’s “word on the street” affidavit:
- It is hearsay; while hearsay is not per se inadmissible at the actual-innocence stage, it need not be treated more credibly than it deserves (Hubbard).
- Jones waited nearly twenty years to come forward and offers no persuasive explanation.
- He has no firsthand knowledge of the shooting itself.
B. Equitable Tolling and Actual Innocence
1. Waiver of Direct Timeliness Arguments
AEDPA’s one-year statute of limitations applies to successive petitions as well. The district court found Houston’s petition time-barred. On appeal:- Houston’s opening brief did not challenge the district court’s timeliness calculation under § 2244(d)(1)(D).
- He raised a timeliness argument only in his reply brief.
2. The Actual-Innocence Gateway for Equitable Tolling
Houston instead argued that actual innocence entitled him to equitable tolling under McQuiggin and Schlup. The applicable standard:- He must present “new reliable evidence” (e.g., trustworthy eyewitness accounts or physical evidence) that is exonerative in nature;
- He must show that, in light of this evidence and the trial record, “it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.”
3. Why the Affidavits Fail Even This Lower Standard
The same reliability defects that doomed the affidavits under § 2244(b) apply here:- Miller’s 12-year-delayed, prison-generated account lacks independent corroboration;
- Johnson’s recantation is undermined by delay and shifting stories; and
- Jones’s hearsay statement is speculative, uncorroborated, and very late.
- Describe his instructions to counsel to interview Nicole; and
- Recount how he met Miller in prison and learned of Miller’s alleged eyewitness account.
C. Denial of an Evidentiary Hearing
Finally, the panel upholds the district court’s refusal to hold an evidentiary hearing. Under Schriro v. Landrigan, 550 U.S. 465 (2007), whether to grant an evidentiary hearing in habeas is committed to the district court’s discretion. AEDPA’s overarching purposes—curbing delay, preventing relitigation, and respecting state convictions—counsel restraint in granting hearings. Because:- The affidavits are facially unreliable and markedly late;
- They do not materially undermine the original trial testimony when viewed in light of the record; and
- They do not meet even the threshold of a credible innocence showing;
VI. Simplifying the Key Legal Concepts
A. What Is a Successive Habeas Petition?
A “successive” habeas petition is a second (or later) attempt to obtain federal habeas relief after a first petition has already been denied. Under AEDPA, successive petitions are tightly controlled:- The petitioner must first obtain authorization from the court of appeals;
- Even after authorization, the district court must independently apply § 2244(b)(2) to determine whether the petition fits within narrow statutory exceptions.
B. “Actual Innocence” vs. “Legal Innocence”
“Actual innocence” refers to factual innocence—you did not commit the crime—as opposed to “legal innocence” (e.g., your conviction was obtained in violation of procedural rules). The Supreme Court generally has treated actual innocence as a gateway that allows review of otherwise defaulted or time-barred claims, rather than as a freestanding constitutional claim in its own right (cf. Herrera).C. The § 2244(b)(2)(B) Gateway vs. the Schlup/McQuiggin Gateway
There are effectively two “actual innocence” gateways at issue:- Statutory gateway for successive petitions (§ 2244(b)(2)(B)).
- Applies only to state prisoners seeking to file a second or later federal habeas petition;
- Requires clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the petitioner guilty.
- Equitable gateway for procedural/default barriers (Schlup) and time-bar (McQuiggin).
- Applies more broadly to untimely or procedurally defaulted claims;
- Requires the petitioner to show that it is more likely than not that no reasonable juror would convict in light of new reliable exculpatory evidence.
D. “Clear and Convincing Evidence” vs. “More Likely than Not”
These are different standards of proof:- “More likely than not” (~51%) means something is more probable than not. This is the standard in the Schlup/McQuiggin gateway.
- “Clear and convincing evidence” is higher: the evidence must show that the truth of a proposition is highly probable. This is what § 2244(b)(2)(B)(ii) requires.
E. Ineffective Assistance of Counsel for Failure to Investigate
Under Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance has two components:- Deficient performance: Counsel’s work falls below an objective standard of reasonableness.
- Prejudice: A reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.
- That competent counsel would have conducted the investigation; and
- That the investigation would have yielded specific, credible evidence that likely would have altered the outcome.
F. Why Courts Distrust Recantations and Late Affidavits
Courts are wary of:- Recantations: They may be motivated by loyalty, threats, remorse, or external pressure; they flip prior sworn testimony and often arise long after trial.
- Prison-generated affidavits: Inmates have opportunities and incentives to coordinate stories; late-breaking “eyewitnesses” can be hard to vet, and records may be stale.
- Timing;
- Consistency with prior statements;
- Independent corroboration (especially non-public details); and
- Plausible reasons for delay.
VII. Impact and Future Significance
A. Practical Implications for State Prisoners and Habeas Counsel
Houston sends several strong signals to habeas practitioners in the Sixth Circuit:- New evidence must be directly tied to the constitutional claim. Counsel should be prepared to show that each new piece of evidence is not merely exculpatory in some abstract sense, but logically and causally connected to the alleged trial-level constitutional error (e.g., what competent counsel would have done).
- Anticipate credibility skepticism. Any new affidavit—especially one:
- created years after the fact,
- originating in prison, or
- recanting prior sworn testimony
- Petitioner’s own affidavit is rarely enough. Self-serving statements about what counsel should have done or what others allegedly told the petitioner will not, by themselves, constitute evidence of factual innocence.
- Strategic briefing is critical. Failing to preserve timeliness arguments in the opening brief (as here) can be fatal; courts will not consider new theories raised only in reply.
B. Interpretation of § 2244(b)(2)(B)(ii) in the Sixth Circuit
While the court stops short of a definitive holding on the “rooted in constitutional error” question, Houston strongly nudges practice in that direction:- It explicitly treats Clark’s more expansive suggestion as dictum and not binding;
- It approves Case’s narrower reading for purposes of this case; and
- It clarifies that its own earlier decision in McDonald is consistent with, not contrary to, the tethering requirement.
C. Influence on Evidentiary Hearings and Conviction Integrity Work
The decision also:- Affirms district courts’ discretion to deny evidentiary hearings when the written record already demonstrates that new evidence is facially unreliable and insufficient under AEDPA.
- Highlights the role but also the limits of Conviction Integrity Units: CIU review is informative but not binding; even after CIU declines relief, courts must still apply AEDPA standards independently.
D. Doctrinal Coherence: Textual Differences Between § 2244(b) and § 2255(h)
By referencing the Fourth Circuit’s later recognition (in Graham) that § 2255(h)(1) is linguistically “more lenient” than § 2244(b)(2)(B)(ii), the Sixth Circuit implicitly endorses a more text-sensitive, provision-specific approach to successive petitions. That may prove relevant in future cases where litigants try to port generous readings from the federal-prisoner statute (§ 2255) into the state-prisoner context (§ 2254/§ 2244).VIII. Conclusion
Houston v. Tanner is a significant elaboration of the Sixth Circuit’s successive habeas jurisprudence. It does not break wholly new doctrinal ground, but it sharpens and consolidates several important principles:- Section 2244(b)(2)(B)’s actual-innocence gateway is exceptionally narrow and demands clear and convincing evidence that truly compels a finding of innocence in light of the whole record.
- New evidence must be credibly tied to the underlying constitutional violation, not merely exculpatory in a general sense.
- The phrase “facts underlying the claim, if proven” does not permit courts to assume exculpatory witness accounts are true; rather, courts must still assess their credibility against the trial evidence.
- Late, prison-generated affidavits and recantations—especially those unaccompanied by independent corroboration or plausible explanations for delay—will almost never satisfy either the § 2244(b) gateway or the Schlup/McQuiggin actual-innocence standard.
- Equitable tolling based on actual innocence is reserved for extraordinary cases with truly reliable, exonerative new evidence; this case, as the court emphasizes, is “less-than-extraordinary.”
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