Michael Mosley v. John Rich, Superintendent, Elmira Correctional Facility

In this case, despite having an alibi, the Petitioner was convicted of Murder in the First Degree, based entirely on circumstantial evidence, and sentenced to life without parole. There was no direct evidence, eyewitness or confession against him. After trial, he was the first inmate in New York to ever have a 440.10 Hearing conducted based on freestanding Actual Innocence and vast amounts of Ineffective Counsel. The State Court found that he did not prove his innocence by "clear and convincing evidence", and that all of his lawyer's decisions were "based on trial strategy". The questions presented to this Court for review are: Regarding Actual Innocence:

1. In this wholly circumstantial case where the Petitioner has alibi, and after trial presents: 1) substantial new exculpatory witnesses and evidence showing that two other men actually committed the crime, 2) new forensic experts who proved that the prosecutor and her experts misrepresented the ONLY evidence connecting the Petitioner to the crime, and 3) new fact witnesses and evidence proving that the prosecutor's unsupported claims of motive, opportunity and consciousness-of-guilt were completely false and fabricated, does all of this new credible and compelling evidence, combined with the alibi, constitute a "truly persuasive showing of actual innocence" pursuant to Herrera v Collins sufficient to warrant freestanding habeas relief?

2. Did the District Court commit error in not reviewing Petitioner's Actual Innocence claim under the Schlup v Delo "gateway" standard, in order to review two Ineffective Counsel claims it found to be procedurally defaulted, so that ALL of counsel's errors, ALL of the evidence and the credibility of the trial witnesses could be considered as a whole and re-weighed, in order to ensure that a Constitutional violation did not result in the conviction of an innocent man?