Scott Crow, Director, Oklahoma Department of Corrections v. Karl Fontenot

In 1988, an Oklahoma jury convicted Karl Fontenot in the abduction and killing of Denice Haraway. The chief evidence against Fontenot was his own confession—a confession the Oklahoma Court of Criminal Appeals found, in affirming Fontenot’s convictions, was corroborated in nine critical respects. In 2016, nearly two decades after his statute of limitations under the Antiterrorism and Effective Death Penalty Act had expired, Fontenot filed a federal habeas corpus petition. The State moved to dismiss as untimely, but the district court denied the State’s motion, finding both that Fontenot could pass through the actual-innocence gateway and that every one of Fontenot’s substantive claims entitled him to relief, without allowing a merits response by the State. The Tenth Circuit affirmed. Over a dissent, the majority held Fontenot had made a credible showing of actual innocence based on “new,” “reliable” evidence. While acknowledging a circuit split on the issue, the majority concluded that Fontenot’s evidence of alleged innocence, despite the fact that it was largely available at the time of trial, was nevertheless “new” within the meaning of this Court’s actual-innocence precedents. The question presented is whether “new” evidence, as referred to in Schlup v. Delo, 513 U.S. 298 (1995), and McQuiggin v. Perkins, 569 U.S. 383 (2013), means evidence that was not available at the time of trial or, under the broad reading adopted below, encompasses any evidence, including evidence known by the defendant and/or available with due diligence, not presented at trial.