444
Blackmun, J., dissenting
Obviously, the stronger the evidence of the prisoner's guilt, the more persuasive the newly discovered evidence of innocence must be. A prisoner raising an actual-innocence claim in a federal habeas petition is not entitled to discovery as a matter of right. Harris v. Nelson, 394 U. S. 286, 295 (1969); 28 U. S. C. § 2254 Rule 6. The district court retains discretion to order discovery, however, when it would help the court make a reliable determination with respect to the prisoner's claim. Harris v. Nelson, 394 U. S., at 299-300; see Advisory Committee Note on Rule 6, 28 U. S. C., pp. 421-422.
It should be clear that the standard I would adopt would not convert the federal courts into " 'forums in which to relitigate state trials.' " Ante, at 401, quoting Barefoot v. Estelle, 463 U. S. 880, 887 (1983). It would not "require the habeas court to hear testimony from the witnesses who testified at trial," ante, at 402, though, if the petition warrants a hearing, it may require the habeas court to hear the testimony of "those who made the statements in the affidavits which petitioner has presented." Ibid. I believe that if a prisoner can show that he is probably actually innocent, in light of all the evidence, then he has made "a truly persuasive demonstration," ante, at 417, and his execution would violate the Constitution. I would so hold.
IV
In this case, the District Court determined that petitioner's newly discovered evidence warranted further consideration. Because the District Court doubted its own authority to consider the new evidence, it thought that petitioner's claim of actual innocence should be brought in state court, see App. 38-39, but it clearly did not think that petitioner's evidence was so insubstantial that it could be dismissed without any hearing at all.7 I would reverse the order of the
7 Justice O'Connor reads too much into the fact that the District Court failed to pass on the sufficiency of the affidavits, did not suggest that it wished to hold an evidentiary hearing, and did not retain jurisdiction after
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