United States v. MacDonald

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
JEFFREY R. MACDONALD,
Defendant-Appellant.

 No. 08-8525
NEW ENGLAND INNOCENCE PROJECT;
THE INNOCENCE PROJECT; NORTH
CAROLINA CENTER ON ACTUAL
INNOCENCE; NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS,
Amici Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(3:75-cr-00026-F-1; 5:06-cv-00024-F)

Argued: March 23, 2010

Decided: April 19, 2011

Before MICHAEL,1 MOTZ, and KING, Circuit Judges.
1
Judge Michael heard oral argument in this case but passed away before
the decision was filed. The decision is filed by a quorum of the panel pur-
suant to 28 U.S.C. § 46(d).
2 UNITED STATES v. MACDONALD
Vacated and remanded by published opinion. Judge King
wrote the opinion, in which Judge Motz joined.

COUNSEL

ARGUED: Joseph Edward Zeszotarski, Jr., POYNER
SPRUILL LLP, Raleigh, North Carolina, for Appellant. John
F. De Pue, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: George E. B.
Holding, United States Attorney, John Stuart Bruce, First
Assistant United States Attorney, Brian M. Murtagh, Special
Assistant United States Attorney, Anne M. Hayes, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. Barry C.
Scheck, THE INNOCENCE PROJECT, New York, New
York; Andrew Good, Philip G. Cormier, Harvey A. Silver-
glate, New England Innocence Project, GOODWIN PROC-
TER LLP, Boston, Massachusetts; Christine Mumma,
NORTH CAROLINA CENTER ON ACTUAL INNO-
CENCE, Durham, North Carolina, for Amici Supporting
Appellant.

OPINION

KING, Circuit Judge:

In 1979, Jeffrey R. MacDonald was convicted in the East-
ern District of North Carolina of the 1970 murders of his
pregnant wife and their two young daughters in the family’s
Fort Bragg home. MacDonald — who has steadfastly main-
tained that he is innocent of those horrific crimes — ulti-
mately failed to have his convictions overturned on direct
appeal and has since filed numerous motions for postconvic-
tion relief.
 UNITED STATES v. MACDONALD 3
As part of his most recent effort, MacDonald secured pre-
filing authorization from this Court in January 2006 for a suc-
cessive 28 U.S.C. § 2255 motion (the "§ 2255 motion"),
which asserted a Fifth Amendment due process claim based
on the newly discovered evidence of former Deputy U.S.
Marshal Jim Britt (the "Britt claim"). Shortly after MacDon-
ald presented the § 2255 motion to the district court, the
results of DNA testing previously authorized by this Court in
1997 became available. Consequently, in March 2006, Mac-
Donald moved in the district court — without seeking or
obtaining further prefiling authorization — to add a second
claim to the § 2255 motion premised on the DNA test results.
More specifically, MacDonald sought in his March 2006
motion (the "DNA motion") to raise a freestanding actual
innocence claim (the "DNA claim"). Additionally, the DNA
motion urged the district court to consider the DNA test
results as part of the "evidence as a whole" in assessing the
Britt claim under § 2255. See § 2255(h)(1) (providing that
successive § 2255 motion must contain "newly discovered
evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and con-
vincing evidence that no reasonable factfinder would have
found the movant guilty of the offense"). MacDonald also
proffered additional evidence — some excluded at trial, some
submitted in prior unsuccessful postconviction proceedings,
and some more recently obtained — for the district court to
consider in its analysis of both the Britt claim and the DNA
claim.

By its decision of November 4, 2008, the district court
denied the DNA motion, on the ground that the court lacked
jurisdiction as a result of MacDonald’s failure to secure addi-
tional prefiling authorization from this Court. See United
States v. MacDonald, No. 75-CR-26 (E.D.N.C. Nov. 4, 2008)
(the "Opinion").2 The district court also refused to consider
2
The unpublished Opinion is found at J.A. 1517-63. (Citations herein to
"J.A. __" refer to the contents of the Joint Appendix filed by the parties
in this appeal.)
4 UNITED STATES v. MACDONALD
the DNA test results and other evidence proffered by Mac-
Donald as part of the "evidence as a whole" relevant to the
Britt claim. And finally, after performing its more searching
assessment of the Britt claim than we had conducted for pur-
poses of prefiling authorization, the district court denied Mac-
Donald leave to file the § 2255 motion.

As explained below, the district court erred in assessing the
Britt claim by taking an overly restrictive view of what consti-
tutes the "evidence as a whole," and further erred in renounc-
ing jurisdiction over the DNA claim. Accordingly, without
expressing any view on the proper ultimate disposition of
either claim, we vacate the Opinion and remand for further
consideration of both the Britt claim and the DNA claim.

I.

A.

Much has been written about Jeffrey MacDonald’s case, by
both the courts and the media. As background, we include the
following recitation of the facts spelled out by the district
court, in 1985, in its first postconviction decision.

In the early morning of February 17, 1970, MacDon-
ald’s pregnant wife, Colette, and his two daughters,
Kristen and Kimberly, two and five years old, were
clubbed and stabbed to death in their apartment at
Fort Bragg, North Carolina. When military police
arrived at the crime scene following a telephone call
from MacDonald, they found MacDonald, a physi-
cian and Captain in the Army Medical Corps, uncon-
scious and lying partially across his wife’s body in
the master bedroom. The bodies of Kristen and Kim-
berly MacDonald were found in their bedrooms.
Although MacDonald had sustained a number of
stab wounds, one of which partially collapsed a lung,
he was treated at the Womack Army Hospital Emer-
 UNITED STATES v. MACDONALD 5
gency Room and released after a brief hospitaliza-
tion.

On the morning and afternoon of the murders and
in subsequent interviews, MacDonald told investiga-
tors that the murders had been committed by four
drug-crazed intruders. He said that upon retiring at
approximately 2:00 a.m. to 2:30 a.m., he found that
his youngest daughter, Kristen, had crawled into bed
with his wife and had wet his side of the bed. He
picked her up and returned her to her own room and
then went into the living room to lay down on the
sofa where he fell asleep. Sometime later, he was
awakened by his wife and oldest daughter’s screams
and looked up to see a woman with blonde hair
wearing a floppy hat, boots and a short skirt carrying
a lighted candle and chanting "acid is groovy; kill
the pigs." He said that three men, two white and one
black, standing near the couch then attacked him,
pulling or tearing his pajama top over his head which
he then used to ward off their blows. The three
attackers continued to club and stab him until he lost
consciousness. When he awoke on the hall steps to
the living room, MacDonald stated that he got up
and went to the master bedroom where he found his
wife dead. He said that he pulled a Geneva Forge
knife out of her body and covered her with his
pajama top and a bathmat. He then went to his chil-
dren’s rooms and unsuccessfully tried to revive
them. After going to the bathroom to wash himself
and calling the military police, he again lost con-
sciousness.

The military police, the Army’s Criminal Investi-
gation Division (CID), the FBI and the Fayetteville,
North Carolina Police Department initially accepted
MacDonald’s account of the murders and immedi-
ately began searching for four people fitting his
6 UNITED STATES v. MACDONALD
descriptions. At the same time, they continued to
examine the crime scene and began to discover evi-
dence which cast doubt on MacDonald’s story.
Although MacDonald had said that his pajama top
was torn during his struggle with the three assailants
in the living room, no fibers from the pajama top
were found in that room. Fibers were found, how-
ever, inside and outside the body outline of Colette
MacDonald in the master bedroom and in the rooms
of Kristen and Kimberly MacDonald. A piece of a
plastic surgeon’s glove, stained with Colette Mac-
Donald’s blood, was found inside a sheet in a pile of
bedding at the foot of the master bed. Moreover,
although there were numerous unidentified finger-
prints in the apartment, no direct evidence of the
alleged intruders was found to support MacDonald’s
version as to what happened on the night of the mur-
ders. From this and similar evidence, investigators
became convinced that MacDonald had killed his
family and staged the crime scene to cover up the
murders.

The Army eventually charged MacDonald with
the murders and a formal pre-court martial investiga-
tion was conducted and hearings held pursuant to
Article 32 of the Uniform Code of Military Justice.
At the close of the Article 32 proceedings, the inves-
tigating officer recommended that all charges against
MacDonald be dismissed and that civilian authorities
investigate Helena Stoeckley, a young woman
resembling MacDonald’s description of the female
assailant, as a possible suspect.

MacDonald was subsequently discharged from the
Army but investigation of the case continued into the
early 1970’s. Over six hundred witnesses were inter-
viewed and a thirteen-volume report, twice supple-
mented, was prepared by the CID. Based upon this
 UNITED STATES v. MACDONALD 7
report and other evidence gathered by civilian and
military authorities and testimony by witnesses, one
of which was MacDonald, on January 24, 1975 the
grand jury indicted MacDonald for the murder of his
family. A series of pre-trial motions and interlocu-
tory appeals delayed trial of the case until July of
1979.

During the seven-week trial of the case, the gov-
ernment presented extensive physical and circum-
stantial evidence supported by expert and lay
testimony. Physical evidence ranging from the
amounts of MacDonald’s pajama top fibers found in
various rooms in the MacDonald residence to the
pattern of blood spatterings on the victims and in the
rooms of the apartment was offered.[3] The govern-
ment also pointed to the absence of evidence in the
apartment linking Helena Stoeckley or anyone else
to the crimes, apparent contradictions in MacDon-
ald’s numerous accounts of what transpired that
morning, and the marital difficulties MacDonald and
his wife were allegedly having prior to February 17,
1970.

MacDonald’s defense consisted primarily of his
own testimony, character witnesses, and impeach-
ment of the integrity of the crime scene and evidence
offered by the prosecution. Although Helena Stoeck-
ley was located during the trial and offered as an
exculpatory witness, she testified before the jury that
she was not involved in the murders but that because
3
In its 1985 decision, the district court noted that "MacDonald, his wife
and two daughters all had different blood types: Colette MacDonald —
Type A, Jeffrey MacDonald — Type B, Kimberly MacDonald — Type
AB and Kristen MacDonald — Type O. This allowed investigators to
reconstruct the sequence of events occurring in the MacDonald apartment
on the night of the murders." United States v. MacDonald, 640 F. Supp.
286, 290 n.2 (E.D.N.C. 1985).
8 UNITED STATES v. MACDONALD
of her drug crazed condition and bizarre behavior
following the murders, she at least had come to won-
der whether she was in fact involved. The jury
apparently believed that she was not, for after six
hours of deliberation MacDonald was found guilty
of two counts of second-degree murder and one
count of first-degree murder.

United States v. MacDonald, 640 F. Supp. 286, 289-90
(E.D.N.C. 1985). Following his convictions by the jury in
1979, the trial court sentenced MacDonald to three consecu-
tive life terms of imprisonment, which he is currently serving.
See id. at 288.

B.

On direct appeal, a divided panel of this Court reversed
MacDonald’s convictions on the ground that his Sixth
Amendment guarantee of a speedy trial had been contravened
by the government’s delay in obtaining the indictment. See
United States v. MacDonald, 632 F.2d 258, 260 (4th Cir.
1980). The Supreme Court, however, rejected the premise for
the speedy trial ruling — "that criminal charges were pending
against MacDonald during the entire period between his mili-
tary arrest and his later indictment on civilian charges" — and
thus reversed our judgment and remanded for further proceed-
ings. See United States v. MacDonald, 456 U.S. 1, 9-11
(1982). On remand, we assessed MacDonald’s remaining
appellate contentions but found no error and affirmed his con-
victions. See United States v. MacDonald, 688 F.2d 224, 234
(4th Cir. 1982). One of those contentions was that the trial
court had erroneously excluded the testimony of seven so-
called "Stoeckley witnesses" concerning alleged inculpatory
statements made by Helena Stoeckley in the aftermath of the
murders. See id. at 230-34. On that issue, our Judge Murnag-
han reluctantly agreed with the other panel members that the
trial court had not abused its discretion; in a concurring opin-
ion, he observed that "the case provokes a strong uneasiness
 UNITED STATES v. MACDONALD 9
in me" and explained his belief that "MacDonald would have
had a fairer trial if the Stoeckley related testimony had been
admitted." Id. at 236 (Murnaghan, J., concurring).

C.

In 1984, MacDonald filed his first motion for postconvic-
tion relief, seeking a writ of habeas corpus under 28 U.S.C.
§ 2255 and a new trial pursuant to Federal Rule of Criminal
Procedure 33. Notably, MacDonald’s Rule 33 new trial
request relied on additional confessions made by Helena
Stoeckley (who had died in 1983), as well as inculpatory
statements made by Stoeckley’s former boyfriend Greg
Mitchell (who Stoeckley had implicated in the murders and
who himself had died in 1982). The district court denied relief
in its 1985 decision, see MacDonald, 640 F. Supp. at 333-34,
and we affirmed, see United States v. MacDonald, 779 F.2d
962, 963 (4th Cir. 1985).

Thereafter, in 1990, MacDonald filed his second motion for
postconviction relief, asserting claims under § 2255 that the
government had unconstitutionally withheld and suppressed
exculpatory evidence from the defense consistent with his
account of murderous intruders. This evidence included blond
synthetic hair-like fibers found on a hairbrush in the MacDon-
ald home — evidence that could incriminate Stoeckley, who
had been known to wear a blond wig that she had admitted
destroying within a few days after the murders. The allegedly
suppressed evidence also included unmatched human hairs
and woolen and cotton fibers collected from the victims’ bed-
ding, from places on and near Colette MacDonald’s body, and
from the wooden club used as a murder weapon. On the mer-
its of MacDonald’s claims, the district court observed that
"the ultimate question [was] whether the jury’s verdict would
have been different had the defense been aware of the alleg-
edly suppressed evidence at the time of trial." United States
v. MacDonald, 778 F. Supp. 1342, 1349 (E.D.N.C. 1991).
Relying on the report of an FBI forensic examiner that "the
10 UNITED STATES v. MACDONALD
blond synthetic fibers . . . were not consistent with blond wig
hairs from any known wig fibers currently in the FBI labora-
tory reference collection," id. at 1350, and observing that the
other unmatched hair and fibers "could have fallen in the
house at any time prior to the murders," id. at 1351, the court
concluded that "the allegedly suppressed evidence would
[have] simply mirror[ed] other evidence of unexplained
household debris that was presented to the jury," id. Addition-
ally, the court ruled that the allegedly suppressed evidence
would not have caused it to admit trial testimony by the seven
"Stoeckley witnesses," and that, in any event, the government
had not engaged in improper efforts to suppress the evidence.
See id. at 1352-56.

Finally and alternatively, the district court determined that
the claims in MacDonald’s second postconviction motion
were barred under the then-applicable doctrine of abuse of the
writ, which generally prohibited subsequent habeas consider-
ation of claims not raised, and thus defaulted, in a first federal
habeas proceeding. See MacDonald, 778 F. Supp. at 1356
(citing McCleskey v. Zant, 499 U.S. 467, 493-95 (1991) (rec-
ognizing that such procedural default will be excused only
upon showing of "cause and prejudice" or factual innocence
implicating "fundamental miscarriage of justice")). The court
explained that information about the allegedly suppressed evi-
dence was in MacDonald’s possession in 1984 when his first
postconviction motion was filed, and that he failed to satisfy
either of McCleskey’s standards for excuse of his procedural
default. See id. at 1356-60. On appeal, we affirmed the denial
of § 2255 relief, reaching only the procedural default issue.
See United States v. MacDonald, 966 F.2d 854, 856 (4th Cir.
1992) ("We find that MacDonald does not meet the stringent
requirements of McCleskey . . . necessary to overcome dis-
missal of a second or subsequent collateral claim for abuse of
the writ.").

In 1997, MacDonald filed a motion to reopen the proceed-
ings on his second postconviction motion, pursuant to Federal
 UNITED STATES v. MACDONALD 11
Rule of Civil Procedure 60(b), on the ground that the govern-
ment and one of its witnesses (the FBI forensic examiner
responsible for analyzing the blond synthetic fibers) had per-
petrated a fraud on the court. In support of his motion, Mac-
Donald claimed that he had discovered evidence establishing
that the FBI forensic examiner had falsely testified that the
blond fibers — because they were made from a substance cal-
led "saran" — likely had come from a doll rather than a wig.
MacDonald’s evidence reflected that, contrary to the FBI
forensic examiner’s testimony, the FBI’s own reference col-
lection contained a text stating that saran was used in the
manufacture of wigs, and that, prior to filing its response to
the second motion, the government had interviewed two doll
experts who opined that the blond fibers probably did not
come from a doll. MacDonald also proffered affirmative evi-
dence — consisting of recently obtained statements of wig
and fiber industry executives — that saran was used to make
wigs before 1970. In conjunction with his Rule 60(b) motion
to reopen proceedings, MacDonald sought access to all items
of physical evidence analyzed by the FBI forensic examiner,
plus other unsourced hairs, fibers, and blood debris found in
critical locations, so that he could conduct independent labo-
ratory analyses including newly available DNA tests.

The district court denied MacDonald’s Rule 60(b) motion
for failure to show that the FBI forensic examiner’s testimony
was material to the disposition of the second postconviction
motion or that the FBI forensic examiner or any other govern-
ment agent had committed wrongdoing in defending against
the second motion. See United States v. MacDonald, 979 F.
Supp. 1057, 1069 (E.D.N.C. 1997). The court further recog-
nized, however, that to the extent the Rule 60(b) motion relied
on new evidence — the statements of wig and fiber industry
executives — to demonstrate MacDonald’s actual innocence,
the motion was akin to a successive § 2255 motion for habeas
relief. See id. at 1067-68. Citing recent amendments to § 2255
engendered by the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), the court concluded that it was
12 UNITED STATES v. MACDONALD
obliged to "transfer this matter to the Court of Appeals for the
Fourth Circuit for consideration" of whether to grant prefiling
authorization for the successive § 2255 motion. Id. at 1068.
Finally, in light of its other rulings, the court concluded that
"there [was] no basis on which to allow MacDonald discov-
ery," and thus denied his request for access to items of physi-
cal evidence to conduct DNA tests and other independent
analyses. Id. at 1067.

We thereafter considered and disposed of two separate
appeals from the district court’s 1997 decision. In the first
appeal, by Order of October 17, 1997, we denied MacDonald
authorization to file a successive § 2255 motion. See In re
MacDonald, No. 97-713 (4th Cir. Oct. 17, 1997). By that
same Order, however, we ruled "that the motion with respect
to DNA testing is granted and this issue is remanded to the
district court." Id. We subsequently issued an unpublished per
curiam decision in the second appeal, affirming the district
court’s denial of MacDonald’s Rule 60(b) motion to reopen
proceedings premised on the government’s alleged fraud on
the court. See United States v. MacDonald, No. 97-7297 (4th
Cir. Sept. 8, 1998). Thereafter, until the present proceedings,
the district court’s involvement in MacDonald’s case was lim-
ited to resolving issues about the performance of the DNA
testing.

II.

A.

MacDonald initiated the present proceedings by seeking
from this Court, as mandated by AEDPA, prefiling authoriza-
tion for the § 2255 motion asserting the Britt claim. We
granted such authorization on January 12, 2006, based on our
determination that the § 2255 motion made "a prima facie
showing" of the requirements for a successive motion. See 28
U.S.C. § 2244(b)(3)(C); United States v. Winestock, 340 F.3d
200, 205 (4th Cir. 2003) ("The court of appeals must examine
 UNITED STATES v. MACDONALD 13
the application to determine whether it contains any claim that
satisfies § 2244(b)(2) (for state prisoners) or § 2255[(h)] (for
federal prisoners)."); see also In re Williams, 364 F.3d 235,
238 (4th Cir. 2004) ("The initial determination of whether a
claim satisfies these requirements must be made by a court of
appeals.").4 In granting prefiling authorization for the § 2255
motion, we left it to the district court to conduct a more
searching assessment of whether that motion satisfied the suc-
cessive motion standard. See Winestock, 340 F.3d at 205
("When the application is thereafter submitted to the district
court, that court must examine each claim and dismiss those
that are barred under § 2244(b) or § 2255[(h)].").

On January 17, 2006, after obtaining our authorization,
MacDonald presented the § 2255 motion to the district court.
According to MacDonald’s memorandum in support of the
§ 2255 motion, the Britt claim was premised on the following
newly discovered evidence:

In January of 2005, counsel for Jeffrey MacDonald,
Wade Smith, Esq., was first contacted by a former
deputy United States Marshal, Jim Britt, with infor-
mation, previously concealed, about prosecutorial
misconduct during the MacDonald trial. Britt, now
retired, served with distinction for twenty-two years
as a deputy United States Marshal entrusted with the
security of the federal courts and judges in North
4
At the time of our 2003 Winestock decision, the provision applicable
to federal prisoners — § 2255(h) — was designated as § 2255 ¶ 8 but con-
tained the same language. Under this provision, "[a] second or successive
motion must be certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain" either "(1) newly discovered evi-
dence that, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that no reason-
able factfinder would have found the movant guilty of the offense,"
§ 2255(h)(1), or "(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable," § 2255(h)(2).
14 UNITED STATES v. MACDONALD
Carolina. Britt was working at the Raleigh court-
house during the 1979 MacDonald trial and was
responsible for escorting the key defense witness,
Helena Stoeckley, who was in custody on a material
witness warrant. Jim Britt was present in the prose-
cutor’s office when the lead prosecutor, James
Blackburn, interviewed Helena Stoeckley, the day
before she was to be called as a witness. As reflected
in his sworn affidavit . . . , Jim Britt avers that he
personally witnessed Helena Stoeckley state to
James Blackburn that she and others were present in
the MacDonald home on the night of the MacDonald
murders and that they had gone there to acquire
drugs; Jim Britt further avers that he witnessed and
heard James Blackburn, upon hearing this, directly
threaten Helena Stoeckley, telling her that if she so
testified in court he would indict her for first degree
murder. This threat caused her to change her testi-
mony, as the next day, when called to the witness
stand by the defense, Stoeckley claimed to have
amnesia as to her whereabouts from midnight until
5 a.m. the night of the MacDonald murders — the
precise time-frame during which the crimes
occurred. James Blackburn never disclosed to the
court or defense counsel what Helena Stoeckley
admitted to him in Jim Britt’s presence. On the con-
trary, Blackburn, at a critical juncture in the trial,
advised the court that Stoeckley, when he inter-
viewed her, denied having any knowledge of the
MacDonald family, the MacDonald home, or
involvement in the MacDonald murders. Blackburn
even went so far as to elicit from Stoeckley, through
leading questions before the jury, testimony that was
contrary to what she had told him during his inter-
view of her the day before in the presence of Jim
Britt.

J.A. 935-36. MacDonald’s memorandum noted that the DNA
testing authorized in 1997 had "been ongoing since then," and
 UNITED STATES v. MACDONALD 15
explained that MacDonald was nonetheless proceeding with
the Britt claim because of AEDPA’s one-year limitations
period for asserting claims based on newly discovered evi-
dence. Id. at 934 n.1; see § 2255(f)(4). The memorandum
requested that the district court "consider this new evidence
[underlying the Britt claim], notwithstanding whatever results
are produced by the DNA testing." J.A. 934 n.1. In addition
to the Britt affidavit, the memorandum incorporated numerous
exhibits, including the affidavits of three other witnesses
swearing that Helena Stoeckley’s boyfriend, Greg Mitchell,
had confessed to murdering the MacDonald family.

In March 2006, shortly after the § 2255 motion was submit-
ted to the district court, the results of the DNA testing — con-
ducted by the Department of Defense Armed Forces Institute
of Pathology ("AFIP") — finally became available. On March
22, 2006, MacDonald filed the DNA motion in the district
court, without first requesting prefiling authorization from this
Court. As described above, the purpose of the DNA motion
was twofold: first, MacDonald sought to raise the DNA claim,
a freestanding actual innocence claim, as an additional predi-
cate to the pending § 2255 motion; and second, he sought to
have the district court consider the DNA test results as part of
the "evidence as a whole" in assessing the Britt claim under
§ 2255(h)(1). According to the DNA motion,

28 biological specimens were deemed by the AFIP
laboratory sufficient for testing for DNA results to
be matched against known exemplars from the Mac-
Donald family members, as well as Helena Stoeck-
ley and Greg Mitchell. Of these 28 specimens tested,
9 specimens either produced no useable result or
produced an inconclusive result. Of the remaining 19
specimens, 13 specimens were consistent with mem-
bers of the MacDonald family who were killed. Of
the 6 specimens remaining, three were consistent
with the DNA of Jeffrey MacDonald. The three
remaining specimens, specimens 58A1, 75A, and
16 UNITED STATES v. MACDONALD
91A, provided DNA results that did not match any
of the MacDonald family members or Helena
Stoeckley or Greg Mitchell.

. . . Regarding the unidentified specimens, speci-
men 58A1 was a hair found at the crime scene on the
bedspread in Kristen MacDonald’s room. Specimen
75A was a 63 mm. (2 1/4 inch) hair with root and
follicle intact retrieved at the crime scene from off or
under the body of Colette MacDonald. And also,
most tellingly, specimen 91A was hair with the root
intact, found along with blood residue underneath
the fingernail of three-year-old Kristen MacDonald,
who at the crime scene was found murdered in her
bed. . . .

. . . [T]hese unidentified hairs, and particularly the
ones found in such critical places as underneath the
fingernail (along with blood fragments) of a child
who was murdered in her bed, and who clearly suf-
fered other defensive wounds and was trying to
defend herself at the time she was murdered, and a
hair of over two inches in length with hair and folli-
cle intact found under Colette MacDonald’s body is
profound new evidence that could not have previ-
ously been discovered through due diligence, and
that when viewed in light of the other evidence taken
as a whole, entitles the petitioner to have his sen-
tence vacated. Further, . . . this new evidence, irre-
spective of the new evidence submitted through
witness Jim Britt, entitles the petitioner to have the
entire panoply of evidence reviewed (both evidence
adduced at trial, and developed post-trial), and to
have a determination now made of whether this evi-
dence, analyzed in its entirety, proves the petition-
er’s innocence.

J.A. 1090-91 (footnotes omitted).
 UNITED STATES v. MACDONALD 17
On March 23, 2006, the day after he filed the DNA motion,
MacDonald moved, pursuant to Rule 7 of the Rules Govern-
ing Section 2255 Proceedings for the United States District
Courts, to expand the record to include an attached statement
of itemized material evidence. MacDonald contended that his
itemized evidence — including evidence excluded at trial
(e.g., the testimony of the "Stoeckley witnesses"), evidence
submitted with prior unsuccessful postconviction motions
(e.g., the blond synthetic hair-like fibers), and evidence more
recently discovered (e.g., the DNA test results and the three
affidavits describing confessions made by Mitchell) — was
part of the "evidence as a whole" relevant to the district
court’s consideration of the Britt claim and the separate DNA
claim. On March 30, 2006, the government filed a motion to
strike certain exhibits submitted with the § 2255 motion —
specifically, the three affidavits detailing Mitchell’s confes-
sions. Thereafter, on May 6, 2007, MacDonald filed a motion
to supplement his proposed statement of itemized material
evidence with an affidavit allegedly executed by Helena
Stoeckley’s since-deceased mother, who was also named
Helena Stoeckley, swearing that the daughter had twice con-
fided in her mother that she was present in the MacDonald
home during the February 17, 1970 murders.

B.

By its Opinion of November 4, 2008, the district court
granted the government’s motion to strike exhibits from the
§ 2255 motion; denied the DNA motion, as well as MacDon-
ald’s motions to expand the record with the attached state-
ment of itemized evidence and to supplement such statement;
and denied MacDonald leave to file the § 2255 motion. The
court observed that the government had moved to strike
exhibits from the § 2255 motion — the three affidavits
describing confessions made by Greg Mitchell — "for one or
both of two reasons: first, because MacDonald’s claims relat-
ing to Mitchell’s ‘confessions’ previously were considered
and rejected in this court’s earlier post-conviction motions;
18 UNITED STATES v. MACDONALD
and, second, because this evidence is untimely." Opinion 18.
The court granted the government’s motion to strike "for the
reasons cogently set forth" therein. Id.

Turning to the DNA motion, as well as MacDonald’s
motion to supplement his proposed statement of itemized
material evidence with the affidavit of the elder Helena
Stoeckley, the district court characterized those motions as
"seek[ing] to add discrete factual bases to" the § 2255 motion
raising the Britt claim. See Opinion 18. The court concluded
that, because "[t]he only grounds upon which MacDonald
sought or obtained [prefiling authorization] are contained in
his [§ 2255 motion] concerning the Britt affidavit," "the DNA
and the elder Stoeckley affidavit motions are bootstrapping,
piggybacking attempts." Id. at 20 (internal quotation marks
omitted). As such, the court ruled that the claims in the DNA
and the elder Stoeckley affidavit motions were "untimely,
successive and independent," thus depriving the court of "sub-
ject matter jurisdiction over them." Id.

With respect to MacDonald’s motion to expand the record
with the attached statement of itemized material evidence, the
district court "reject[ed] his suggestion that [the court was]
required, under the circumstances presented by this case, to
expand the record and to consider every manner of supple-
mentary material he deems supportive of his position, regard-
less of its source or its competence." Opinion 21.
Furthermore, the court found that the pre-existing record was
"more than adequate to permit a thorough and complete
understanding of the material facts pertinent to the motions
now before it." Id. at 21-22.

With only the § 2255 motion remaining for its consider-
ation, the district court observed that MacDonald had "pass-
[ed] through [the] first gate" by obtaining prefiling
authorization from this Court. Opinion 24. The district court
then explained that its role was to "conduct[ ] the second
gatekeeping step by examining each claim of the proposed
 UNITED STATES v. MACDONALD 19
successive application without reaching the merits, and dis-
missing those that fail to satisfy the requirements for the filing
of such a motion." Id. at 25 (internal quotation marks omit-
ted). Notably, the court deemed the applicable standard to be
that found in 28 U.S.C. § 2244(b)(2)(B), rather than
§ 2255(h)(1). See id. at 24. Pursuant to § 2244(b)(2)(B), the
movant must demonstrate (1) that "the factual predicate for
the claim could not have been discovered previously through
the exercise of due diligence," § 2244(b)(2)(B)(i), and (2) that
"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," § 2244(b)(2)(B)(ii). In
assessing the Britt claim under that standard, the court "af-
ford[ed] MacDonald the benefit of the assumption that he
exercised due diligence in discovering Britt’s assertions."
Opinion 28. Nevertheless, the court concluded that "MacDon-
ald has not demonstrated that the Britt affidavit, taken as true
and accurate on its face and viewed in light of the evidence
as a whole" — i.e., the evidence in the pre-existing record —
"could establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found MacDonald guilty of the murder of his wife and daugh-
ters." Id. at 46.5
5
On November 24, 2008, the government filed a motion to publish and
modify the Opinion. By Order of January 9, 2009, the district court largely
denied the government’s motion, except to allow a few minor revisions on
"clerical, non-substantive matters." United States v. MacDonald, No. 75-
CR-26, slip op. at 2 (E.D.N.C. Jan. 9, 2009). The court recognized that the
government’s most significant modification request was based on its reve-
lation "that it has evidence, including affidavits and official documents,
that prove the falsity of Jim Britt’s affidavit." Id. at 1-2. According to the
court, "[t]he Government apparently withheld this evidence under the
assumption that the [§ 2255 motion] would survive the thorough review
required for the . . . court’s gatekeeping function, and that an evidentiary
hearing would be ordered at which the Government at last would drop its
bombshell. It did not work out that way." Id. at 2 (internal quotation marks
20 UNITED STATES v. MACDONALD
C.

After the district court denied him a certificate of appeala-
bility ("COA"), MacDonald sought a COA from this Court so
that he could appeal the Opinion. See 28 U.S.C. § 2253(c)(1)-
(2) (requiring a § 2255 applicant to obtain a COA, by making
"a substantial showing of the denial of a constitutional right,"
in order to appeal an adverse final order of the district court);
see also Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recog-
nizing that, if the district court refused relief on procedural
grounds, a COA should issue upon the applicant’s showing
"that jurists of reason would find it debatable whether" (1)
"the petition states a valid claim of the denial of a constitu-
tional right" and (2) "the district court was correct in its pro-
cedural ruling"). In his informal brief of February 20, 2009,
MacDonald requested certification of three issues: (1) that the
district court erred in denying him leave to file the § 2255
motion because, in assessing the Britt claim asserted therein,
the court failed to consider the "evidence as a whole," includ-
ing the DNA test results, the evidence in his statement of
itemized material evidence and the proposed supplement
thereto, and the three affidavits stricken at the government’s
request; (2) that the court erred in denying the DNA motion
on the ground that he was required to obtain additional prefil-
ing authorization before either relying on the DNA test results
in connection with the Britt claim or asserting the freestand-
ing DNA claim; and (3) that the court erred in its assessment
of the Britt claim both by excluding, and thus ignoring, rele-
vant evidence and by drawing flawed conclusions from the

omitted). The court refused to modify the Opinion to address the govern-
ment’s evidence on the grounds that the government provided no legal
basis for such modification, and that the request "reveal[ed] a failure to
recognize that the truth or falsity of Britt’s affidavit . . . is irrelevant to this
court’s rationale for denying MacDonald’s request to file [the] § 2255
motion." Id. (The unpublished Order of January 9, 2009, is found at J.A.
1672-74.)
 UNITED STATES v. MACDONALD 21
evidence it did consider. On June 9, 2009, we granted Mac-
Donald a COA on the following issue:

[W]hether the district court’s procedural decisions
prohibiting expansion of the record to include evi-
dence received after trial and after the filing of the
[§ 2255] motion was erroneous in light of 28 U.S.C.
§ 2244(b)(2)(B)(ii) (2006).

See United States v. MacDonald, No. 08-8525 (4th Cir. June
9, 2009). The parties subsequently filed formal briefs and oral
argument was scheduled for March 23, 2010.

Ten days before argument, on March 13, 2010, the govern-
ment filed a motion to dismiss this appeal on the ground that
the COA was insufficient to establish 28 U.S.C. § 2253 juris-
diction; as we understood the government’s position, it was
that we had failed to certify an issue of constitutional magni-
tude and, thus, could not exercise jurisdiction over the appeal.
We heard argument on the previously scheduled date and
then, by Order of May 6, 2010, denied the government’s
motion to dismiss. See United States v. MacDonald, No. 08-
8525 (4th Cir. May 6, 2010). By that same Order, we explic-
itly recognized that MacDonald had made a substantial show-
ing of the denial of a constitutional right with respect to both
the Britt claim and the DNA claim, and we amended the COA
to encompass the following issues:

(1) Whether the district court erred in assessing the
Britt claim by applying the standard of 28
U.S.C. § 2244(b)(2)(B)(ii), rather than
§ 2255(h)(1); by prohibiting expansion of the
record to include evidence received after trial
and after the filing of the 28 U.S.C. § 2255
motion; and by excluding, and thus ignoring,
relevant evidence and drawing flawed conclu-
sions from the evidence it did consider; and
22 UNITED STATES v. MACDONALD
(2) Whether the district court’s procedural decision
with respect to the freestanding DNA claim,
requiring additional prefiling authorization
from this Court, was erroneous in light of 28
U.S.C. § 2255(h).

Id. at 7. Additionally, we directed the parties to file supple-
mental briefs on the issues identified in the amended COA
that were not addressed in their formal briefs. The last of
those supplemental briefs having been submitted, this appeal
— over which we possess jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253 — is ripe for decision.6

III.

In an appeal from the denial of authorization to file a suc-
cessive 28 U.S.C. § 2255 motion — just as we do in an appeal
from the denial of a first or successive § 2255 motion once
filed — we review a district court’s conclusions of law de
novo. See United States v. Poindexter, 492 F.3d 263, 267 (4th
Cir. 2007) ("When reviewing an appeal from the denial of a
§ 2255 motion, we review de novo the district court’s legal
conclusions."); Reyes-Requena v. United States, 243 F.3d
893, 900 (5th Cir. 2001) ("A district court’s denial of a second
§ 2255 motion on the ground that the motion fails to meet
AEDPA’s conditions is a legal conclusion, which we review
under a de novo standard of review."). Similarly, our review
is de novo where a district court construes a motion as a suc-
cessive § 2255 motion and dismisses it for failure to obtain
prefiling authorization from a court of appeals. See Lang v.
United States, 474 F.3d 348, 351 (6th Cir. 2007) ("Whether
or not [a] motion is ‘second or successive’ within the meaning
of § 2255 is . . . an issue that we review de novo.").
6
Notably, in our Order of May 6, 2010, we instructed the parties to state
in their supplemental briefs any request for further oral argument.
Although the parties requested it, we are satisfied that further argument
would not be of assistance and thus deny those requests.
 UNITED STATES v. MACDONALD 23
IV.

A.

In resolving the first issue before us under MacDonald’s
COA — whether the district court erred in assessing the Britt
claim — we begin with the threshold question of whether the
court erred by applying the standard of 28 U.S.C.
§ 2244(b)(2)(B)(ii), rather than § 2255(h)(1). We then turn to
whether the court erred by prohibiting expansion of the record
to include evidence received after trial and after the filing of
MacDonald’s § 2255 motion. Finally, we focus on whether
the court erred by excluding, and thus ignoring, relevant evi-
dence or by drawing flawed conclusions from the evidence it
did consider.

1.

On the threshold question with respect to the Britt claim,
we conclude that the district court erred by applying the stan-
dard of 28 U.S.C. § 2244(b)(2)(B)(ii), rather than
§ 2255(h)(1). As we explained in United States v. Winestock,
§ 2244(b)(2) sets forth the controlling standard for state pris-
oners, and § 2255(h) spells out the standard applicable to
those in federal custody. See 340 F.3d 200, 205 (4th Cir.
2003) (observing that the prefiling authorization inquiry
involves a determination of whether the application "contains
any claim that satisfies § 2244(b)(2) (for state prisoners) or
§ 2255[(h)] (for federal prisoners)"). Nonetheless, the stan-
dards of § 2244(b)(2)(B)(ii) and § 2255(h)(1) are quite simi-
lar. Compare § 2244(b)(2)(B)(ii) (demanding that "the facts
underlying the claim, if proven and viewed in light of the evi-
dence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no rea-
sonable factfinder would have found the applicant guilty of
the underlying offense"), with § 2255(h)(1) (requiring "newly
discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear
24 UNITED STATES v. MACDONALD
and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense").

Because of the similarities between § 2244(b)(2)(B)(ii) and
§ 2255(h)(1), see, e.g., In re Dean, 341 F.3d 1247, 149 n.4
(11th Cir. 2003) (observing that those provisions are "materi-
ally identical"), the district court’s error in identifying the
controlling standard was probably harmless.7 We do not con-
cern ourselves with the harmlessness question, however,
because (as next explained in this decision) the court commit-
ted prejudicial error by taking an overly restrictive view of
what constitutes the "evidence as a whole" for purposes of
either § 2244(b)(2)(B)(ii) or § 2255(h)(1). Thus, in any event,
we must remand for a proper § 2255(h)(1) assessment of the
Britt claim.

2.

Turning to the district court’s prior assessment of the Britt
claim, we conclude that, as a result of its flawed interpretation
of the "evidence as a whole," the court erred by prohibiting
expansion of the record to include evidence received after
trial and after the filing of MacDonald’s § 2255 motion. Sim-
ply put, the "evidence as a whole" is exactly that: all the evi-
7
Furthermore, the district court may have committed harmless error in
holding MacDonald to an additional § 2244(b)(2)(B) requirement: that
"the factual predicate for the claim could not have been discovered previ-
ously through the exercise of due diligence." § 2244(b)(2)(B)(i). MacDon-
ald was yet obliged to establish that he acted with due diligence, see
§ 2255(f)(4) (imposing a one-year limitations period for a § 2255 motion
running from "the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due dili-
gence"), and the court accepted that he did so, see Opinion 28
("afford[ing] MacDonald the benefit of the assumption that he exercised
due diligence in discovering Britt’s assertions"); cf. Wolfe v. Johnson, 565
F.3d 140, 168 n.42 (4th Cir. 2009) (observing that prisoner apparently
exercised diligence in pursuing claim premised on witness recantation,
because there was "no indication that [witness] would have been willing
to recant his trial testimony any earlier").
 UNITED STATES v. MACDONALD 25
dence put before the court at the time of its
§ 2244(b)(2)(B)(ii) or § 2255(h)(1) evaluation.

a.

Significantly, the § 2244(b)(2)(B)(ii) and § 2255(h)(1) stan-
dards — including their "evidence as a whole" provisions —
were added to § 2244 and § 2255 with the enactment of
AEDPA in 1996. See Antiterrorism and Effective Death Pen-
alty Act of 1996, Pub. L. No. 104-132, §§ 105-106, 110 Stat.
1214, 1220-21. Plainly, those standards derived from pre-
AEDPA decisions of the Supreme Court regarding the
reviewability of abusive and procedurally defaulted federal
habeas corpus claims.8

For example, in McCleskey v. Zant, the Supreme Court rec-
ognized that, under the doctrines of abuse of the writ and pro-
cedural default, a prisoner seeking to have his abusive or
procedurally defaulted claims heard is required to show either
"cause and prejudice" or factual innocence implicating a "fun-
damental miscarriage of justice." See 499 U.S. 467, 493-95
(1991). Of particular relevance here, the exception for a fun-
damental miscarriage of justice requires a showing that "a
constitutional violation probably has caused the conviction of
one innocent of the crime." Id. at 494 (reiterating standard
spelled out in Murray v. Carrier, 477 U.S. 478, 496 (1986)).
In Sawyer v. Whitley, the Court refined the fundamental mis-
carriage of justice exception for situations in which the pris-
oner asserted innocence of the death penalty, rather than the
offense of conviction. See 505 U.S. 333, 335-36 (1992). The
Sawyer Court held that, in those circumstances, "one must
show by clear and convincing evidence that, but for a consti-
8
The Supreme Court has explained that abusive claims are those that
were "not raised, and thus defaulted, in the first federal habeas proceed-
ing." McCleskey v. Zant, 499 U.S. 467, 490 (1991). On the other hand,
procedurally defaulted claims are those that were "defaulted in state
court." Id.
26 UNITED STATES v. MACDONALD
tutional error, no reasonable juror would have found the peti-
tioner eligible for the death penalty." Id. at 336.

Thereafter, the Supreme Court clarified in Schlup v. Delo
"that the Carrier ‘probably resulted’ standard rather than the
more stringent Sawyer standard must govern the miscarriage
of justice inquiry when a petitioner who has been sentenced
to death raises a claim of actual innocence [of a crime] to
avoid a procedural bar." 513 U.S. 298, 326-27 (1995).
Expounding on the Carrier "probably resulted" standard, the
Schlup Court explained that such standard requires the peti-
tioner to "show that it is more likely than not that no reason-
able juror would have found petitioner guilty beyond a
reasonable doubt." Id. at 327. With respect to both the Carrier
and Sawyer standards, the Court observed that "[i]t is not the
district court’s independent judgment as to whether reason-
able doubt exists that the standard addresses; rather the stan-
dard requires the district court to make a probabilistic
determination about what reasonable, properly instructed
jurors would do." Id. at 329.

The Schlup Court was careful to distinguish the claim of
innocence before it — "‘a gateway through which a habeas
petitioner must pass to have his otherwise barred constitu-
tional claim considered on the merits’" — from a freestanding
actual innocence claim. See 513 U.S. at 315 (quoting Herrera
v. Collins, 506 U.S. 390, 404 (1993)). And, the Court
observed that, "[t]o be credible, [a gateway innocence] claim
requires petitioner to support his allegations of constitutional
error with new reliable evidence — whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or criti-
cal physical evidence — that was not presented at trial." Id.
at 324.

Explaining the proper assessment of a gateway innocence
claim, the Schlup Court recognized that, because "[t]he Car-
rier standard is intended to focus the inquiry on actual inno-
cence, . . . the district court is not bound by the rules of
 UNITED STATES v. MACDONALD 27
admissibility that would govern at trial." 513 U.S. at 327.
Rather, the Court observed,

the emphasis on actual innocence allows the review-
ing tribunal also to consider the probative force of
relevant evidence that was either excluded or
unavailable at trial. Indeed, with respect to this
aspect of the Carrier standard, . . . [t]he habeas court
must make its determination concerning the petition-
er’s innocence in light of all the evidence, including
that alleged to have been illegally admitted (but with
due regard to any unreliability of it) and evidence
tenably claimed to have been wrongly excluded or to
have become available only after the trial.

Id. at 327-28 (internal quotation marks omitted).

Following the enactment of AEDPA, the Supreme Court
had occasion in House v. Bell — because it involved claims
asserted in a first § 2254 habeas corpus petition that were pro-
cedurally barred under state law — to invoke its decision in
Schlup. See 547 U.S. 518, 539 (2006) (observing that no
AEDPA "provision addresses the type of petition at issue here
— a first federal habeas petition seeking consideration of
defaulted claims based on a showing of actual innocence").
The House Court emphasized that, although "a gateway claim
requires ‘new reliable evidence,’" the district court’s assess-
ment "is not limited to such evidence." Id. at 537 (quoting
Schlup, 513 U.S. at 324). Indeed, as the Court recognized,

Schlup makes plain that the habeas court must con-
sider "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. at 538 (quoting Schlup, 513 U.S. at 327-28); see also
Sharpe v. Bell, 593 F.3d 372, 377-78 (4th Cir. 2010)
28 UNITED STATES v. MACDONALD
(acknowledging Supreme Court’s directive to review "all the
evidence" in assessing gateway innocence claim); Royal v.
Taylor, 188 F.3d 239, 244 (4th Cir. 1999) (recognizing that,
under Schlup, a gateway innocence claim should be evaluated
"in light of all available evidence, including that considered
unavailable or excluded at trial and any evidence that became
available only after trial").

b.

The § 2244(b)(2)(B)(ii) and § 2255(h)(1) standards clearly
incorporate features of the standards spelled out in the pre-
AEDPA decisions in Carrier, Sawyer, and Schlup. Focusing
specifically on the standard applicable here, § 2255(h)(1) —
like Schlup — obliges the prisoner to proffer some new evi-
dence in support of his habeas corpus claim. See § 2255(h)(1)
(requiring "newly discovered evidence"); Schlup, 513 U.S. at
324 (recognizing that "petitioner [must] support his allega-
tions of constitutional error with new reliable evidence").
Both § 2255(h)(1) and Schlup also require the prisoner, in
order to pass through the innocence gateway to have his claim
heard, to show "that no reasonable factfinder would have
found the movant guilty of the offense," § 2255(h)(1), or, in
other words, "that no reasonable juror would have found peti-
tioner guilty beyond a reasonable doubt," Schlup, 513 U.S. at
327 (expounding on Carrier "probably resulted" standard).
Moreover, § 2255(h)(1)’s standard of proof is that imposed by
Sawyer: "clear and convincing evidence." § 2255(h)(1); Saw-
yer, 505 U.S. at 336.

Consequently, we cannot ignore the pre-AEDPA precedent
in interpreting what constitutes the "evidence as a whole."
Indeed, by its plain language, "the evidence as a whole"
means, in the equivalent language of Schlup, "all the evi-
dence." See 513 U.S. at 328. Thus, a court must make its
§ 2244(b)(2)(B)(ii) or § 2255(h)(1) determination —
unbounded "by the rules of admissibility that would govern at
trial" — based on "all the evidence, including that alleged to
 UNITED STATES v. MACDONALD 29
have been illegally admitted [and that] tenably claimed to
have been wrongly excluded or to have become available only
after the trial." Id. at 327-28. Or, to say it another way, the
"court must consider ‘all the evidence,’ old and new, incrimi-
nating and exculpatory, without regard to whether it would
necessarily be admitted under [evidentiary rules]." House, 547
U.S. at 538 (quoting Schlup, 513 U.S. at 328). That is not to
say, however, that the petitioner is to be accorded the benefit
of every doubt. To the contrary, the court must give "due
regard to any unreliability of" the evidence, Schlup, 513 U.S.
at 328 (internal quotation marks omitted), and "may have to
make some credibility assessments," id. at 330. "Because a
[gateway innocence] claim involves evidence the trial jury did
not have before it, the inquiry requires the federal court to
assess how reasonable jurors would react to the overall, newly
supplemented record." House, 547 U.S. at 538.

c.

We must reject the district court’s conflicting view, also
espoused by the government, of what constitutes the "evi-
dence as a whole." In accordance with that view, the court
confined its assessment of the Britt claim to the newly discov-
ered evidence of former Deputy U.S. Marshal Jim Britt and
the pre-existing record. See Opinion 21-22 (deeming "the
record as it presently is constituted to be more than adequate
to permit a thorough and complete understanding of the mate-
rial facts"). The court refused to consider evidence obtained
following our grant of prefiling authorization for the § 2255
motion containing the Britt claim — specifically, the DNA
test results and the affidavit of the elder Helena Stoeckley —
in the absence of our further prefiling authorization for that
evidence or additional claims premised on it. The court also
declined to take into account evidence that had been submit-
ted with MacDonald’s prior unsuccessful postconviction
motions, including evidence of the blond synthetic hair-like
fibers found on a hairbrush in the MacDonald home, appar-
ently on the theory that to consider such evidence would be
30 UNITED STATES v. MACDONALD
to improperly relitigate the earlier claims. And, the court
refused to consider evidence obtained since the filing of the
prior postconviction motions, including the three affidavits
attached to the § 2255 motion describing confessions made by
Greg Mitchell, on the grounds that it simply mirrored evi-
dence previously rejected and was, in any event, untimely.

The government endorses the district court’s narrow inter-
pretation of the "evidence as a whole" by contending that a
broader reading would effectively nullify three AEDPA pro-
visions: the requirement of § 2244(b)(3) for prefiling authori-
zation from a court of appeals for "a second or successive
application" brought by a state prisoner under § 2254 or by a
federal prisoner under § 2255; the prohibition in § 2244(b)(1)
against entertaining any claim presented in a second or suc-
cessive § 2254 petition "that was presented in a prior applica-
tion"; and the one-year limitations periods found in § 2244(d)
and § 2255(f) for § 2254 and § 2255 applications. The district
court and the government, however, misapprehend the opera-
tion of AEDPA’s statutory scheme.

When we granted prefiling authorization for the § 2255
motion, it contained a single claim: the Britt claim. In accor-
dance with § 2244(b)(3)(C), we determined that the § 2255
motion made "a prima facie showing" that it satisfied the
requirements of § 2255(h)(1), i.e., that the Britt claim was
based on "newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be suffi-
cient to establish by clear and convincing evidence that no
reasonable factfinder would have found [MacDonald] guilty
of the [murders of his wife and daughters]." It was then
incumbent on the district court to conduct a more searching
assessment of the Britt claim to determine whether it passed
muster under § 2255(h)(1). See Winestock, 340 F.3d at 205.
Additionally, the court had to be concerned with whether the
Britt claim complied with § 2255(f)’s one-year limitations
period — which runs, in pertinent part, from "the date on
which the facts supporting the claim . . . could have been dis-
 UNITED STATES v. MACDONALD 31
covered through the exercise of due diligence," § 2255(f)(4))
— a question that the court essentially answered when it
accepted that MacDonald had acted with due diligence in dis-
covering the underlying evidence of former Deputy U.S. Mar-
shal Jim Britt. See supra note 7. The court might also have
been concerned with § 2244(b)(1)’s prohibition against suc-
cessive claims raised in second or successive applications,
except that the Britt claim was never before presented in any
of MacDonald’s prior postconviction motions.9

The district court clearly went too far, however, when (at
the government’s urging) it applied the constraints of
§ 2244(b)(3), § 2255(f), and § 2244(b)(1) to substantially
limit the evidence it would consider as part of the "evidence
as a whole" in conducting its assessment of the Britt claim. In
so doing, the court wrongly conflated MacDonald’s proffered
evidence with his claim for relief. That is, the court viewed
the various items of proffered evidence — such as the DNA
test results, the affidavit of the elder Helena Stoeckley, the
blond synthetic hair-like fibers, and the three affidavits
describing confessions made by Greg Mitchell — as being
submitted in support of claims separate and distinct from the
Britt claim and each other.10

The district court instead should have treated the proffered
evidence as part of the "evidence as a whole" in evaluating
the Britt claim under § 2255(h)(1). That is, the court should
9
Furthermore, it is an open issue in this Circuit — one we need not
resolve today — whether § 2244(b)(1) applies to successive claims pres-
ented in second or successive § 2255 applications. See Winestock, 340
F.3d at 205 ("Although [§ 2244(b)(1)] is limited by its terms to § 2254
applications, some courts have also applied it to § 2255 applications. We
need not decide here whether to follow this approach." (citations omit-
ted)).
10
Of course, in addition to proffering the DNA test results as part of the
"evidence as a whole" relevant to the Britt claim, MacDonald also sought
to rely on those test results in support of the freestanding DNA claim,
which we address below. See infra Part IV.B.
32 UNITED STATES v. MACDONALD
have considered the proffered evidence — with due regard for
"the likely credibility" and "the probable reliability" thereof,
see Schlup, 513 U.S. at 332 — to determine if it, in combina-
tion with the newly discovered Britt evidence, would be suffi-
cient to establish that no reasonable juror would have found
MacDonald guilty. If so, MacDonald would merely pass the
procedural bar to having the Britt claim considered on its mer-
its, and he would yet be obliged to prove the constitutional
violation alleged in that claim before obtaining any § 2255
relief thereon.

3.

In light of the district court’s overly restrictive view of
what constitutes the "evidence as a whole," we conclude that
the court erred in its analysis of the Britt claim by excluding
and, thus, ignoring relevant evidence — necessitating remand
for a fresh analysis of whether the Britt claim satisfies the
applicable standard of § 2255(h)(1). Such assessment must
include the previously excluded evidence discussed herein,
and may also include other evidence not mentioned, if it is
part of the "evidence as a whole" properly put before the
court. In these circumstances, we need not reach an additional
matter encompassed in MacDonald’s COA: whether the court
erred in assessing the Britt claim by drawing flawed conclu-
sions from the evidence it did consider. We emphasize, how-
ever, that today’s decision is not intended to signal any belief
that the Britt claim passes muster under § 2255(h)(1) or ulti-
mately entitles MacDonald to habeas corpus relief. Indeed,
the standards of § 2255(h)(1) and its predecessor, the funda-
mental miscarriage of justice exception, were designed to
ensure that they could be satisfied only in the "rare" and "ex-
traordinary case." See Schlup, 513 U.S. at 321. Nonetheless,
we recognize that MacDonald is entitled to a procedurally
valid assessment of the Britt claim.11
11
We also recognize that the district court’s further assessment of the
Britt claim will be complicated by the fact that — as the government noti-
 UNITED STATES v. MACDONALD 33
B.

On the second issue before us under MacDonald’s COA —
whether the district court lacked jurisdiction over the free-
standing DNA claim as a result of MacDonald’s failure to
obtain additional prefiling authorization — we conclude that
the court erred in deeming itself to be without jurisdiction.
Simply put, because we granted 28 U.S.C. § 2244(b)(3) pre-
filing authorization for the § 2255 motion raising the Britt
claim, the district court possessed jurisdiction over the sepa-
rate DNA claim insofar as MacDonald had timely and appro-
priately sought to add it to the pending § 2255 motion. See
Winestock, 340 F.3d at 205 (concluding that, "because the
[prefiling] authorization requirement applies to the entire
application, the jurisdictional effect of § 2244(b)(3) extends to
all claims in the application").

As we recognized in Winestock, when deciding whether to
grant prefiling authorization, we inspect "the application" —
that is, the entire § 2255 motion — "to determine whether it
contains any claim that satisfies" the § 2255(h) standard. See
340 F.3d at 205; see also In re Williams, 330 F.3d 277, 281
(4th Cir. 2003) (observing that "we must determine whether
the motion makes ‘a prima facie showing’ that [the prisoner]
can satisfy the [statutory] requirements" (quoting
§ 2244(b)(3)(C))). If any one claim satisfies such standard, we

fied the court on October 28, 2008 (seven days before the issuance of the
November 4, 2008 Opinion) — the key witness in support of that claim,
former Deputy U.S. Marshal Jim Britt, died on October 22, 2008. And,
despite prior notices filed by MacDonald on September 7, 2007, and
November 5, 2007, warning that Britt had been "suffering from serious
heart problems" and was in "fragile health," Britt was never allowed to
testify in an evidentiary hearing. The government now contends that the
Britt claim is moot as a result of Britt’s death — a contention that the gov-
ernment failed to raise in the district court despite having the opportunity
to do so. We leave that issue for the district court on remand, as it will be
in a better position to pass upon the government’s mootness claim in the
first instance.
34 UNITED STATES v. MACDONALD
"authorize the prisoner to file the entire application in the dis-
trict court, even if some of the claims in the application do not
satisfy the applicable standard[ ]." Winestock, 340 F.3d at
205; see also Williams, 330 F.3d at 281 (explaining that, "if
any claim meets the statutory threshold, we will grant [prefil-
ing authorization] and allow [the prisoner] to file the [pro-
posed motion] in its entirety"). It is then the responsibility of
the district court to more closely scrutinize "each claim and
dismiss those that are barred under [§ 2255(h)]." Winestock,
340 F.3d at 205.

Here, the district court deemed Winestock inapposite
because MacDonald sought to add the DNA claim to the
§ 2255 motion only after our prefiling authorization for the
motion was granted and it was submitted to the district court.
See Opinion 19-20. In analogous circumstances, however,
another district court within this Circuit relied on Winestock
in concluding that our permission was not required to add
additional claims to a previously authorized successive § 2255
motion. See Hazel v. United States, 303 F. Supp. 2d 753, 758-
59 (E.D. Va. 2004). There, the prisoner had "sought and
received certification from the Fourth Circuit" for a proposed
motion raising a single claim and then, after presenting the
motion in the district court, asserted two additional claims. Id.
at 758. The Hazel court concluded that, under Winestock, the
prisoner could raise the additional claims "even though he did
not receive express certification from the Fourth Circuit to do
so." Id. at 758-59. Nonetheless, the court recognized that the
question remained whether the proposed amendments to the
§ 2255 motion were proper. Id. at 759. And, in addressing the
propriety of the proposed amendments, the court looked to
Federal Rule of Civil Procedure 15(a), which spells out the
standards for amending pleadings. Id. at 763, 765.12
12
Rule 15 is applicable to § 2255 motions by way of 28 U.S.C. § 2242,
Federal Rule of Civil Procedure 81(a)(4), and Rule 12 of the Rules Gov-
erning Section 2255 Proceedings for the United States District Courts. See
Mayle v. Felix, 545 U.S. 644, 655 (2005) (recognizing that Rule 15 simi-
larly applies in 28 U.S.C. § 2254 habeas corpus proceedings).
 UNITED STATES v. MACDONALD 35
We agree with the Hazel court’s analysis and utilize it
herein: Under Winestock, the lack of additional prefiling
authorization was no obstacle to MacDonald’s pursuit of the
DNA claim in the district court; rather, the real potential bar-
rier was Rule 15(a). Accordingly, we vacate the district
court’s denial of the DNA claim and remand for further pro-
ceedings. In so doing, we could instruct the district court to
conduct a belated Rule 15(a) assessment of MacDonald’s
request to add the DNA claim to the pending § 2255 motion,
presumably to be followed by an evaluation of the DNA claim
under the standard of § 2255(h)(1). It is a more efficient use
of judicial resources, however, to simply grant MacDonald
prefiling authorization for the DNA claim so that the district
court may proceed directly to the § 2255(h)(1) evaluation. See
Winestock, 340 F.3d at 208 (recognizing that, where appropri-
ate, we may construe prisoner’s notice of appeal and appellate
brief as motion for authorization to file successive § 2255
motion). Thus, we do just that.13

Finally, without expressing any view on the proper disposi-
tion of the DNA claim, we acknowledge that MacDonald has
a daunting burden ahead in seeking to establish that he is eli-
gible for habeas corpus relief solely because of his "actual
innocence." The Supreme Court has only "assume[d], for the
sake of argument . . . , that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would
render the execution of a defendant unconstitutional." Her-
rera v. Collins, 506 U.S. 390, 417 (1993). The Court has yet
13
In these circumstances, we need not reach MacDonald’s alternative
theories of jurisdiction with respect to the DNA claim: (1) that, by autho-
rizing the DNA testing in 1997, this Court also implicitly authorized a
subsequent § 2255 claim based on the test results; and (2) that no prefiling
authorization is necessary, because the DNA claim is properly asserted
under the Innocence Protection Act of 2004 (the "IPA"), 18 U.S.C.
§ 3600, rendering it free from the strictures of AEDPA. Nonetheless, on
remand, the district court may consider in the first instance whether the
IPA — a statute initially mentioned in this appeal by the government and
subsequently invoked by MacDonald — is applicable to the DNA claim.
36 UNITED STATES v. MACDONALD
to come across any prisoner who could make the "extraordi-
narily high" threshold showing for such an assumed right. Id.;
see Dist. Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2321
(2009) ("Whether [a federal constitutional right to be released
upon proof of ‘actual innocence’] exists is an open question.
We have struggled with it over the years, in some cases
assuming, arguendo, that it exists while also noting the diffi-
cult questions such a right would pose and the high standard
any claimant would have to meet."). In any event, MacDonald
is entitled at least to the prefiling authorization for his DNA
claim that we grant herein, as well as the more searching
§ 2255(h)(1) evaluation of such claim that the district court
must conduct on remand.

V.

Pursuant to the foregoing, we vacate the Opinion and
remand for such other and further proceedings as may be
appropriate.

VACATED AND REMANDED