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Opinion of the Court
two and a half minutes; that Schlup was walking at a leisurely pace; and that Schlup "was not perspiring or breathing hard, and he was not nervous." Affidavit of Robert Faherty ¶¶ 4, 6 (Oct. 26, 1993).25
On November 15, 1993, the Court of Appeals vacated its earlier opinion and substituted a more comprehensive analysis of the law to support its decision to deny Schlup's request for a stay. 11 F. 3d 738. The majority adhered to its earlier conclusion that Sawyer stated the appropriate standard for evaluating Schlup's claim of actual innocence. 11 F. 3d, at 740. The opinion also contained an extended discussion of Schlup's new evidence. The court noted in particular that Green's new affidavit was inconsistent in part with both his prison interview and his testimony at the Stewart trial. Id., at 742. The court viewed Faherty's affidavit as simply "an effort to embellish and expand upon his testimony" and concluded "that a habeas court should not permit retrial on such a basis." Id., at 743.
Judge Heaney again dissented, concluding that Schlup had "presented truly persuasive evidence that he is actually innocent," and that the District Court should therefore have addressed the merits of Schlup's constitutional claims. Id., at 744. Judge Heaney also argued that Schlup's ineffectiveness claim was substantial. He noted that Schlup's trial counsel failed to conduct individual interviews with Griffin Bey, McCoy, or any of the other inmates who told investigators that they had seen the killing. Moreover, counsel failed to interview Green about his statement that he had called
25 Faherty had testified at Schlup's trial, but he had not been asked about the significant details of his encounter with Schlup that are recited in his affidavit. Faherty Affidavit ¶ 9 (Oct. 26, 1993). Faherty left the Department of Corrections in 1989. He stated in his affidavit that he had been prompted to come forward after hearing about Schlup's case through an article in the local newspaper. Id., ¶ 11.
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