Cite as: 513 U. S. 298 (1995)
Opinion of the Court
The District Court denied the motion and the supplemental motion without opinion.
Petitioner then sought from the Court of Appeals a stay of execution pending the resolution of his appeal. Relying on Justice Powell's plurality opinion in Kuhlmann v. Wilson, 477 U. S. 436 (1986), Schlup argued that the District Court should have entertained his second habeas corpus petition, because he had supplemented his constitutional claim "with a colorable claim of factual innocence." Id., at 454.
On October 15, 1993, the Court of Appeals denied the stay application. In an opinion that was subsequently vacated, the majority held that petitioner's claim of innocence was governed by the standard announced in Sawyer v. Whitley, 505 U. S. 333 (1992), and it concluded that under that standard, the evidence of Schlup's guilt that had been adduced at trial foreclosed consideration of petitioner's current constitutional claims.22
Judge Heaney dissented. Relying on Green's affidavit, the videotape, and the affidavits of four other eyewitnesses, Judge Heaney concluded that the petitioner had met both the Kuhlmann standard and a proper reading of the Sawyer standard.23 Cf. infra, at 331. He believed that the District Court should have conducted an evidentiary hearing in which the affiants would have been subjected to examination by the State so "their credibility could be accurately determined." 24
In the meantime, petitioner's counsel obtained an affidavit from Robert Faherty, the former lieutenant at the prison whom Schlup had passed on the way to lunch on the day of the murder and who had reprimanded Schlup for shouting out the window. See n. 10, supra. Faherty's affidavit stated that Schlup had been in Faherty's presence for at least
22 Schlup v. Delo, No. 93-3272, 1993 WL 409815, *3 (CA8, Oct. 15, 1993).
23 Id., at *7.
24 Id., at *5.
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