560
Opinion of the Court
in particular, he must show "by clear and convincing evidence" that no reasonable juror would have found him eligible for the death penalty in light of the new evidence. Sawyer, supra, at 348.
The Sawyer standard has a broader application than is at first apparent. As the Court explained in Schlup, when a capital petitioner challenges his underlying capital murder conviction on the basis of an element that "function[s] essentially as a sentence enhancer," the Sawyer "clear and convincing" standard applies to the claim. Schlup, supra, at 326. Thus, to the extent a capital petitioner claims he did not kill the victim, the Schlup "more likely than not" standard applies. To the extent a capital petitioner contests the special circumstances rendering him eligible for the death penalty, the Sawyer "clear and convincing" standard applies, irrespective of whether the special circumstances are elements of the offense of capital murder or, as here, mere sentencing enhancers.
A claim like Thompson's could present some difficulty concerning whether to apply Schlup or Sawyer. Thompson makes no appreciable effort to assert his innocence of Fleischli's murder. Instead, he challenges, first, his rape conviction, and second, the jury's finding of the special circumstance of rape. The former challenge is subject to the Schlup "more likely than not" standard; the latter challenge is subject to the Sawyer "clear and convincing" standard. In theory, then, it would be possible to vacate Thompson's stand-alone conviction of rape but to let stand his conviction of murder and sentence of death. This anomaly perhaps reflects some tension between Sawyer and the later decided Schlup. The anomaly need not detain us, however, for Thompson's claims fail under either standard.
At trial, the prosecution presented ample evidence to show Thompson committed the rape. A vaginal swab of Fleischli's body revealed semen consistent with Thompson's blood type. App. 109. In addition, there was extensive evidence
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