Gregory Lott v. MARGARET BAGLEY , Warden

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0283p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GREGORY LOTT ,
Petitioner-Appellant,
v.
M ARGARET BAGLEY , Warden,
Respondent-Appellee.
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Nos. 05-4336; 07-4294
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
Nos. 95-02642; 04-00822—Kathleen McDonald O’Malley, District Judge.
Argued: June 11, 2008
Decided and Filed: August 8, 2008
Before: BOGGS, Chief Judge; MERRITT and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: Gregory W. Meyers, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio,
for Appellant. Sarah A. Hadacek, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee. ON BRIEF: Gregory W. Meyers, Melissa J. Callais, Robert K. Lowe, OFFICE
OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Sarah A. Hadacek, Stephen
E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Michael L. Collyer,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. The present question before us in this habeas corpus, murder
case, in which Ohio has imposed the death penalty, is whether the trial and post-conviction evidence
would now convince a reasonable factfinder that Lott is innocent of the crime. We agree with
District Judge O’Malley that the new evidence of prosecutorial wrongdoing does not undermine the
finding of guilt, which means that Lott may not proceed with his otherwise procedurally defaulted
claim that the State violated his due process rights by failing to turn over certain “exculpatory”
information in violation of Brady v. Maryland, 373 U.S. 83 (1963). Hence, we affirm the judgment
for the State.
1

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Nos. 05-4336; 07-4294 Lott v. Bagley Page 2
1For an explanation of the “old school strategy of ‘deliberate bypass,’” see Fay v. Noia, 372 U.S. 391, 433-40
(1963), overruled in part by Wainwright v. Sykes, 433 U.S. 72 (1977).
We have written three previous opinions in this case during the last seven years. Lott v.
Coyle, 261 F.3d 594 (2001); In re: Gregory Lott, 366 F.3d 431 (2004); In re: Gregory Lott, 424 F.3d
446 (2005). The first opinion recited the gruesome facts and affirmed the denial of Lott’s habeas
corpus petition on all issues except Lott’s actual innocence, “gateway” claim brought under the legal
theory set out in Schlup v. Delo, 513 U.S. 298 (1995). According to Schlup, a petitioner may
advance a procedurally defaulted claim if he is able to show “that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” Id. at 327. We did
not resolve the Schlup issue in our first opinion because we noted that “this issue may now be
pending in the state court and has not been fully briefed before us.” 261 F.3d 621. In an abundance
of caution, given that this is a death penalty case, we addressed this issue in our second opinion and
issued an “order authorizing the district court to consider [a] second [habeas] application for a
Brady, actual innocence, gateway claim.” 366 F.3d 431-34. In the third opinion, we resolved an
issue regarding the attorney-client privilege raised by Lott “in the midst of litigating his second
habeas corpus proceeding” concerning the actual innocence claim.
The issue, as explained in earlier opinions, turns on the application of Schlup v. Delo and
§ 2244(b)(2):
A claim presented in a second or successive habeas corpus application under section
2254 that was not presented in a prior application shall be dismissed unless —
. . . .
(B)(i) the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.
Lott concedes that his legal counsel knew of the facts constituting his Brady exculpatory
evidence claim by February of 1992. In fact, he admits that his “counsel intentionally committed
malpractice by deciding to deliberately bypass Ohio’s courts.” He explains: “Acting under the old
school strategy of ‘deliberate bypass,’ Baich [Lott’s prior counsel] hid this evidence from state
courts for fear that he would lose in what was perceived as a hostile forum, hoping instead to play
this winning hand in federal court.”1 Petitioner’s Brief, Lott v. Bagley (filed May 5, 2008). It is
difficult to read these statements by Lott’s present counsel as anything other than an admission that
Lott’s previous post-conviction counsel failed to meet the “due diligence” requirement of § 2244.
Even if he were able to meet the due diligence requirement of § 2244, Lott has been unable
to advance facts that establish that it is more likely than not that he is actually innocent of the
aggravated murder of his aged victim. As a result, he may not advance his procedurally defaulted
claim that the State committed a Brady violation. In her thorough and comprehensive opinion of
September 28, 2007, District Judge O’Malley rejected Lott’s gateway actual innocence claim,
leaving no stone unturned in her analysis of the facts and the application of the law of procedural
default and actual innocence. We attach her findings and conclusions on this issue as Exhibit 1 to
this opinion and incorporate them by reference as our reasons for rejecting Lott’s Schlup actual
innocence claim and for affirming the judgment of the District Court. For the full opinion see Lott
v. Bagley, No. 1:04-CV822, 2007 U.S. Dist. LEXIS 91762 (N. D. Ohio Sept. 28, 2007).

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Accordingly, the judgment of the District Court denying Lott’s petition for a writ of habeas
corpus is affirmed.

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Nos. 05-4336; 07-4294 Lott v. Bagley Page 4
EXHIBIT 1
2.
Schlup v. Delo
Out of an abundance of caution and for appellate
review, the Court will, regardless of its findings pertaining to
Lott's actual innocence under the statutory standard, also
subject his actual innocence claim to the standard set forth in
Schlup v. Delo, 513 US. 298, 115 S. Ct. 851, 130 L. Ed. 2d
808 (1995). As the Court reasoned during the evidentiary
hearing, this is the standard that Lott must meet to excuse
the procedural default of his Brady claims. 14
14 Although the issue of whether the Schlup standard
survived the enactment of the AEDPA was raised
during the evidentiary hearing, it is a settled question
that Schlup remains intact. See House v. Bell, 547
U.S. 518, 126 S.Ct. 2064, 2078, 165 L. Ed. 2d 1
(2006)(finding Schlup remains the standard for
determining actual innocence in first federal habeas
petitions in which the petitioner seeks to excuse the
default of those claims based on a showing of actual
innocence); Williams v. Bagley, 380 F.3d 932, 973-
74 (6th Cir. 2004).
In Schlup v. Delo, the Supreme Court held that, where a
petitioner seeks to utilize claims of actual innocence as a
gateway to assert he was wrongly convicted of a crime, the
petitioner must demonstrate that "a constitutional violation
has probably resulted in the conviction of one who is actually
innocent." Id. at 327 (quoting Murray v. Carrier, 477
U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)).
To constitute the necessary "probability," the petitioner must
show "that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence." Id.
Thus, the Schlup Court concluded, if a habeas petitioner
presents evidence of his innocence that is so strong that a
habeas court cannot have confidence in the trial's outcome
unless it is also of the belief that the trial was free of
constitutional error, a habeas petitioner should be entitled to
a merit review of his underlying claims. Id. at 316.
The Supreme Court revisited the Schlup holding in House
v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L. Ed. 2d 1
(2006). There, the petitioner asserted that multiple facts that
had come to light since the time of his state court
proceedings could establish his actual innocence as a
gateway to excuse the procedural default of the claims raised
in the petition. Reversing the Sixth Circuit's denial of this
relief, the Supreme Court held that the petitioner had met
the Schlup standard.
Prior to applying this standard to the facts presented, the
House Court underscored several aspects of the Schlup
holding that are of particular significance here. First, the
House Court noted that, while Schlup requires the introduction
of new, credible evidence that was not presented at a
petitioner's trial, a habeas court is not limited to such
evidence in its actual innocence review. Id. at 2077. The
House Court also emphasized that 'the habeas court must
consider 'all the evidence,' old and new, incriminating and
exculpatory, without regard to whether it would necessarily be
admitted under 'rules of admissibility that would govern at
trial.'" Id. (quoting Schlup, 513 US. at 327-38)(emphasis
supplied).
B. Substantive Analysis
1.28 U.S.C. § 2244(b)
As noted above, the Court must now apply the claim
Lott raised in the successor petition to the requirements set
forth in § 2244(b). As Lott does not contend that the Supreme
Court has created a new rule of constitutional law made
retroactive to him under § 2244(b)(2)(A), the Court will
review his claim pursuant to § 2244(b)(2)(B). That statute
requires Lott to demonstrate both that he could not have
previously discovered the factual predicate of his claims, and
that he can establish, by clear and convincing evidence, that
he would not have been convicted but for constitutional
error. 15 The Court reviews each of these statutory prongs,
finding that Lott can satisfy neither.
15 Although the Court holds elsewhere in this
Opinion that Lott has satisfied the diligence
requirement of § 2254(e)(2), it notes that the
difference in that statute's language from
§ 2244(b)(2)(B)(i) is significant and requires the
Court to perform a distinct analysis. While
§ 2254(e)(2) merely requires that the petitioner not
have "failed to develop" his claims in state court, a
requirement Lott clearly has fulfilled by filing a second
petition for post-conviction relief, § 2244(b)(2)(B)N
requires that an applicant acted timely in presenting
newly discovered materials to the state courts.
a. § 2244(b)(2)(B)(1)
Lott's failure to present his Brady and actual innocence
claims in a timely fashion is undisputable. As Lott concedes
in the successor petition, Lott's post-conviction counsel
obtained the City of Cleveland and Cuyahoga County
Prosecutor's Office records that form the basis of his Brady
and actual innocence claims by October, 1991. Although Lott
could have presented these claims based on this
information to the state court at that time, he failed to do
so. Current habeas counsel concede that post-conviction
counsel "engaged in an 'intentional bypass' of the state
courts in the hopes that the federal courts would more
thoroughly consider the documents. (Doc. No. 1, at 24).
Thus, there is no doubt that Lott fails

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Nos. 05-4336; 07-4294 Lott v. Bagley Page 5
to demonstrate that he could not have discovered the
factual predicate of his claims previously, as is required under
the statute. '6
16 Attempting to circumvent this quandary, Lott's
counsel asserted during the evidentiary hearing, as
stated above, that "the degree of ineptitude by [post-
conviction and first habeas counsel] combined give
a legal basis to excuse ... the due diligence default."
(Doc. No. 85, at 8). Counsel conceded that this
argument currently has no legal support. Id. at 10.
The Court cannot forgive Lott's lack of due
diligence because there is simply no authority for what
amounts to Lott's ineffective assistance of collateral
counsel claim. In fact, the Supreme Court has held
explicitly that no such constitutional right exists.
Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S Ct.
1990, 95 L. Ed. 2d 539 (1987); 28 U.S.C. §2254(1).
b. §
2244(b)(2)(B)(11)
Even if Lott could satisfy the requirements of §
2244(b)(2)(B)(i), he cannot demonstrate, by clear and
convincing evidence, that no reasonable factfinder would
have convicted him of McGrath's murder if no Brady
violation had occurred at his trial. The Court sets forth
below the evidence presented at trial and during the federal
habeas proceedings.
i. Evidence presented at trial
The Court briefly reviews the most inculpatory evidence
the prosecution presented during Lott's trial. The Court
acknowledges that the majority of this evidence is
circumstantial. The prosecution presented the testimony of
several police detectives who stated that a shoe print found
in the dusty floor of McGrath's bedroom generally matched
a pair of shoes found in Lott's possession. Moreover, the
prosecution presented testimony that Lott's fingerprints
were on a church envelope that recently had been mailed to
McGrath, and another fingerprint matching Lott's was
found in McGrath's bedroom. And, the prosecution
presented uncontroverted evidence that Lott had been in
McGrath's home on prior occasions and was, thus, obviously
familiar with the home and with the fact that the home
belonged to McGrath.
The only direct evidence linking Lott to McGrath's
murder was the testimony of Diedrea Coleman. Coleman
identified Lott from a photo array as the man who she had
seen driving a Ford Escort, which was later determined to
be McGrath's, in her neighborhood. She stated that her
suspicions became aroused when she viewed Lott around
her neighbor's home. She later observed Lott
departing quickly from that area holding a brown bag or
shirt under his arm.
ii. Materials in support of actual innocence acquired
since trial
a. Identification Issue
Lott's identification claim contains several sub-parts:
First, he maintains that McGrath failed to identify him as the
assailant because of his description regarding the complexion,
hair, and height of the assailant. Lott also notes from the
police report containing this description that McGrath
believed that he recognized his assailant from his
barbershop. Lott also asserts that Coleman's artist sketch
of him and her description of him as having a "reddish"
complexion demonstrates his innocence. Moreover, he
contends, police suggested to Coleman that Lott altered his
skin tone by using skin-lightening makeup.
i. McGrath identification
The Court finds that, while parts of McGrath's
description of his assailant may support Lott's actual
innocence, it by no means proves it by clear and convincing
evidence. In his first habeas petition, the Court alternatively
held that, even if not defaulted, Lott's claim regarding
McGrath's identification of him would not have been well-
taken because McGrath's "description is not so contrary to
Lott's actual appearance that it would have made a material
difference in the outcome of Lott's trial." (Case No. 95 CV
2642, Doc. 109, at 60). Upon review of the evidence and
testimony presented during the evidentiary hearing, the
Court's conclusion remains unaltered. As stated above, Art
McCoy testified during the evidentiary hearing that
McGrath frequented his barbershop during the summer of
1986. He stated that McGrath would receive a haircut
approximately every two to three weeks. (Doc. No. 85, at
54). Thus, it is fair to assume that McGrath was referring to
McCoy's barbershop when mentioning it to the police.
McCoy also testified during cross-examination that Lott
frequented the area around the barbershop. Id. at 59. He
conceded, moreover, that Lott actually entered the
barbershop on several occasions. Id. Thus, McGrath's
barbershop statement only serves to undermine Lott's
innocence claim.
McGrath's physical descriptions of Lott, however, are
less clear cut. While the Court, as stated above, finds
consistent with its earlier conclusion that McGrath's
description does not depart significantly from Lott's actual
appearance, particularly his description of Lott's height,
which varied only two inches from Lott's actual height, the
other aspects of the identification present some discrepancies
that are inexplicable. Lott's complexion, upon observation,
cannot be characterized as "very light," as McGrath
described him. Less significant was Lott's hair

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Nos. 05-4336; 07-4294 Lott v. Bagley Page 6
length, a physical characteristic which was readily
changeable. Kyle testified at the hearing that Lott's hair length
remained constantly short throughout the summer of 1986.
While the Court does not suspect the veracity of Kyle's
recollection, it also is mindful that Kyle's memory of Lott's
hair length, a fairly insignificant fact given the events of that
summer, could have been mistaken. In sum, the Court finds
that the only evidence supporting Lott's actual innocence
based on McGrath's identification of him is McGrath's
description of his complexion.
Viewing this description in light of the time and
condition in which it was received serves to undercut its
import, however. Although Detective Copeland testified
during the hearing that, pursuant to his typical practice and
routine, he would not interview a victim unless lucid, it is
undeniable that McGrath's age, and certainly his medical
condition at the time of the statement, must be considered
when assessing its significance. Along with his physical
description of Lott, McGrath also stated during the identical
police statement that, "the suspect came back on Monday
and let him [McGrath] drive his [own] car." (Doc. No. 17,
Exh. B, at 1). He thereafter stated that "he was not sure if
this happened or not." Id. These statements hardly inspire
confidence that McGrath's description, supplied two
sentences later, was accurate. ''
17 Lott also raised the issue that McGrath failed to
identify Lott from the composite sketch created by
Coleman. A review of the police report depicting
this display reveals, however, that McGrath merely
was not responsive when shown the sketch. He died
several hours later. (Doc. No. 17, Exh. C). Thus, the
Court does not consider this fact to be helpful to
Lott.
ii. Coleman identification
Lott raised the issue of Coleman's identification of him,
albeit pursuant to another claim, in his first federal habeas
petition. The Court found Coleman's description of Lott,
crafted after she had viewed him perusing her neighborhood,
to be credible because
she had a reason to observe him, thus
suggesting that she would pay a close degree
of attention to his appearance (and would
have reason to remember it). The fact that
she described Lott as having worn a running
suit which was identical to the one found in
Lott's car also makes her identification more
reliable. Though there are factors, including
the apparent differences between Coleman's
sketch of the man she saw and Lott's actual
appearance, which somewhat weaken the
reliability of
the identification, they do not render the
Ohio court's reliability determination
unreasonable....
(Case No. 95 CV 2642, Doc. 109, at 65).
Moreover, Coleman's assertion that Lott had a
"reddish" complexion is less compelling when taken in the
context of her trial testimony. When defense counsel
questioned her on cross- examination regarding the "reddish"
pigment she described as Lott's skin tone, she elaborated as
follows:
A: Like you have got some black people
who have a bluish tone, and some have a
yellowish undertone, and some have - - like
tannish. You have different shades,
variations.
(Trial Tr., at 136). She also admitted that her sketch of Lott
was not a "true rendering" of Lott's features, Id. at 131. She
stated that she was not attempting to be accurate, instead
choosing to prepare a sketch quickly so that police could
apprehend the individual. She had expected that a police
artist would subsequently enhance the drawing because
"they [were] trained in that field," and she was not. Id.
18 Lott also raised the issue about whether Lott used
skin-lightening makeup to alter his skin tone. As
Lott observes, there is nothing in the trial record to
support the assertion that Lott ever used skin makeup
to alter his complexion. The issue was raised as
conjecture during the trial and deposition testimony of
Coleman. Lott asserts the Respondent raised this
issue to deflect the obvious discrepancy between
McGrath's description of his assailant and Lott's
actual skin tone.
As Judge Boggs found in his opinion dissenting
from the Sixth Circuit's grant of permission to file
a second habeas petition, the skin-lightening
theory "seems unlikely." In re Lott, 366 F.3d 431, 437
(6th Cir. 2004)(Boggs, J., dissenting). Given the fact
that the Court already has called McGrath's
identification of Lott into question because of his
medical condition at the time he provided the
description, the Court declines to speculate further
on this issue.
b. Lamp oil issue
During closing arguments at trial, the prosecutor argued
that Lott had brought lamp oil with him to McGrath's
home, intending to set him afire. The records

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post-conviction counsel received in 1991 reveal that,
among McGrath's possessions, was a kerosene lamp that
would have used lamp oil to be ignited. Lott asserts that the
prosecutor's argument that there was no reason for
McGrath to have lamp oil in his home was an outright
fabrication to prove the element of Lott's intent to kill.
During closing statements, the prosecutor attempted to
counter defense counsel's assertions that McGrath may have
accidentally ignited himself by arguing as follows:
The physical examination of his house
unquestionably shows aggravated burglary
and aggravated robbery as stated in the
indictment and the laws of the State of Ohio.
But to consider the specific intent that the
killer had to kill Mr. McGrath.
I'm not going to even seriously consider
those suggestions made by defense counsel
concerning the bottle of lamp oil. Nothing in
that man's house that uses kerosene or lamp
oil. So, with that in mind, consider the intent
of the individual who would break into an old
man's house, knowing the frailty that age has
inflicted on him, bringing with him a cord to
tie him up and the lamp oil to burn him.
You may argue that a person that has a
gun and kills somebody does it by accident, a
knee jerk reaction or a spasm, or for some
reason reacted to some fear instilled by the
victim.
You cannot but look upon this act as
deliberate, vile and specifically intending to
cause the death of Mr. McGrath; that he was
tied up and that the killer poured this
flammable substance on him and ignited him.
Trial Tr. at 778-79.
The Court finds that, while the prosecutor's assertions
regarding the lamp oil may be the subject of a prosecutorial
misconduct claim, they are immaterial to Lott's claim of
actual innocence. As Judge Boggs observed in his dissent
from the granting of the application to file a successor
petition:
Assuming that McGrath owned the oil, it
was available to Lott, who used it in his attack
on the victim. Were this an argument about
prosecutorial misconduct in the penalty
phase of a capital trial, I would see the
relevance. In this context, Icannot draw any
inference from the oil that indicates Lott's
innocence.
In re Lott, 366 F.3d 431, 437 (6th Cir. 2004). Although his
opinion is not binding on this Court, the Court finds Judge
Boggs's reasoning to be persuasive. Moreover, during the
evidentiary hearing, defense counsel Kersey admitted that
he and co-counsel were aware that there was no evidence
to support the prosecutor's statement that Lott brought
the lamp oil with him. (Doc. No. 85, at 43).
Because Lott was tried before a three judge panel, this
Court must assume that the panel was aware of the lack of
evidentiary support for the prosecutor's claim. The panel
also was well aware that the prosecutor's argument did not
constitute evidence during the trial. Thus, Lott is hard
pressed to demonstrate that the comment had any effect
on the outcome of the trial or has any relevance here. The
Court finds that the fact that a kerosene lamp was found in
McGrath's home does not tend to demonstrate Loft's
actual innocence.
iii. Loft's confession
As the House Court dictates, this Court must consider
all evidence, both inculpating and exculpating, when
reviewing an actual innocence claim. House v. Bell, 126
S.Ct. at 2077; Lott v. Coyle, 261 F.3d at 621. Thus, while
this statement was suppressed before trial and the panel
did not consider it because Lott's counsel was not present
when it was given, the Court now considers the statement
Lott made to Detective James Hughey after his arrest
when assessing his actual innocence. The police report
containing this statement reads as follows:
When questioned about the above incident
with Mr. John McGrath he started crying. He
stated he never intended to hurt Mr.
McGrath. He went over to Mr. McGrath's
house at 7:00 a.m. sometime in the middle of
July and went to the back of the house and
broke out a basement window. He went into
the house and found Mr. McGrath in a front
bedroom on the main floor of the house. He
stated that the next thing he knew Mr.
McGrath was tied up. He remembers using
either a telephone cord or electrical wire to
tie him up. McGrath wasn't in bed when this
took place but he doesn't remember or
know why he wasn't.
After he was tied up he took his car keys
which were on a dresser or table ei-

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Nos. 05-4336; 07-4294 Lott v. Bagley Page 8
ther in the bedroom or the room next to it and
left the house and got into the car, which
was in the driveway and drove off with it. He
described McGrath's car as being a smaller
model car, dark in color.
When asked about any type of
flammable [sic] fluid or liquid being put on
Mr. McGrath and then setting it on fire he
stated that he didn't remember anything
about that. He was asked about why he
broke into Mr. McGrath's house and why
did he tie him up he stated he didn't know
why he broke into the house, he didn't want
him to contact the police when he left the
house with his car....
When questioned about his intent in the
McGrath incident he stated he didn't know.
He stated he didn't intent [sic] to hurt
anyone and that he didn't know what he was
doing. He stated that he would do anything to
keep from [going] to the [electric] chair.
Lott v. Coyle, 261 F 3d 594, 620-21 (6th Cir. 2001).
When reviewing Lott's actual innocence claim on
appeal from his first federal habeas petition, the Sixth
Circuit found Lott's confession to be significant. Although
it initially opined that it was "troubled" that Lott was
convicted based solely on circumstantial evidence, the Sixth
Circuit reasoned that if Lott's statement ultimately were
found to be reliable, it would present the Court with more
direct evidence of Lott's guilt. It held, "[a] more detailed
review of the circumstances than appears in this record may
show that Lott's inculpatory statement, although suppressed
at trial, was voluntarily made and admits of no reason to
doubt its reliability or truthfulness." Id. at 621.
Although Lott now attests that this statement was a
complete fabrication, the Court observes both that Lott first
made such an assertion in 2002, during his clemency hearing
and that Lott presented no evidence at the hearing before
this Court which supports that claim. Thus, Lott did not
contest the veracity of this statement in any of his prior
proceedings and has still yet to do so in any meaningful way.
During a deposition taken during the second habeas
proceeding, Lott denied he made any statement regarding his
involvement in the McGrath murder. Instead, he maintained
that Hughey spoke to him about someone he knew by the
name of Freddie Robinson and his brother. (Doc. No. 69,
Exh. 2, at 18). Although Lott conceded that he became
emotional after being arraigned on mur
der charges, he claims that he never even spoke to Hughey
regarding the McGrath murder. Id. at 20.
The Court finds Lott's attack on Hughey's credibility
unavailing. Not only is there no evidence in the record that
Hughey had any reason to fabricate the confession, the
confession itself undercuts any claim that it was fictionalized.
First, the absence of reference to an outright admission
regarding the arson is telling -- had Hughey invented Lott's
words, he would likely have completed the story. Second,
details provided in the statement are itself telling -- all being
later corroborated by the murder investigation. Lott's
confession comports with police testimony stating that the
assailant broke in through a basement window, that
McGrath was tied up with a telephone cord, and that the
assailant left McGrath in the bedroom. Moreover, it
substantiates both Coleman's testimony and McGrath's
statement that Lott was driving McGrath's car. For these
reasons, the Court credits Respondent's assertion that Lott,
in fact, provided the above- described confession shortly
after the murder.
c. Conclusion
In reviewing all the evidence regarding Lott's actual
innocence of McGrath's murder, the Court finds, for the
reasons stated above, that he falls far short of establishing,
as he must to prevail on a successor petition, that he can
establish his actual innocence by clear and convincing
evidence. Although McGrath's description of Lott's skin
tone would tend to exculpate Lott, other evidence Lott
maintains proves his actual innocence does not, in fact, do
so. Upon further review, some of these materials, such as
McGrath's assertion that he knew his assailant from his
barbershop, tend to further implicate Lott. Given the
circumstantial evidence presented at trial and Lott's
confession, the Court finds that Lott fails to meet the
standard set forth in § 2244(b)(2)(B)(ii). Thus, pursuant to
that statute, his successor petition must be dismissed.
2. Schlup v. Delo
Even if the Court were to disregard the heightened
statutory standard of actual innocence, it would find that
Lott could not establish his actual innocence pursuant to
Schlup. As discussed above, Schlup and House dictate that,
to establish actual innocence, a habeas petitioner must
demonstrate that it is "more likely than not, in light of the
new evidence, no reasonable juror would find [the petitioner]
guilty beyond a reasonable doubt-or, to remove the double
negative, that more likely than not any reasonable juror
would have reasonable doubt." House, 126 S. at 2077.
As stated above, most of the new evidence Lott
presents in support of his innocence does not prove it. The
Court found that only the McGrath skin tone description

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Nos. 05-4336; 07-4294 Lott v. Bagley Page 9
would support his innocence. All other evidence Lott
presented was either neutral, neither establishing nor
undercutting his guilt, or tended to inculpate him. This
new evidence coupled with the evidence presented at
trial and Lott's confession do not establish that it is
more likely than not that any reasonable juror, hearing
all this evidence, would have reasonable doubt about
Lott's guilt. Lott cannot establish his actual innocence
pursuant to Schlup. Accordingly, the Court must also
find that Lott has failed to establish a "gateway" by
which to excuse the procedural default of his Brady
claims. Thus, Lott is not entitled to a merit review of
them.

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