dissenting.
In Mathenia I, I dissented because Chuck Lee Mathenia was “well on the road to execution by reason of the carelessness and incompetence of his appointed public defender....” Mathenia v. Delo, 975 F.2d 444, 454-55 (8th Cir.1992) (Bright, J., dissenting) (Mathenia I). Today, Mathenia is further down that road despite new evidence of his counsel’s incompetence and that he lacked the “cool deliberation” necessary for imposition of the death penalty.
There are three issues in which I disagree with the majority. First, the district court failed to apply the correct standard of review for determining whether Mathenia makes out an “actual innocence” claim under Schlup v. Delo, — U.S. -, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Second, new evidence demonstrates that Mathenia lacked the requisite “cool deliberation” under Missouri law to commit capital murder. This evidence creates a “gateway” by which Mathenia’s ineffective assistance of counsel claim may be considered. Third, this new evidence strengthens my conviction, expressed in dissent in Mathenia I, that Mathenia’s counsel was incompetent.
ANALYSIS
I.
Mathenia brings new evidence that his counsel was incompetent and that he is innocent of capital murder. The new evidence consists of uncontradicted affidavits by medical experts concluding that Mathenia lacked “cool deliberation” when committing the murders, a necessary element for the imposition of the death penalty under Missouri law. As an initial matter, the district court applied the wrong standard in considering Mathe-nia’s “actual innocence” claim. In Schlup v. Delo, — U.S. -, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), the Supreme Court clarified the standard for claims that a habeas petitioner’s “actual innocence” serves as a “gateway” for the court to address the merits of another constitutional claim. Id. at- -, 115 S.Ct. at 860-69. Here, Mathenia offers evidence of actual innocence not as an independent constitutional claim, but as a means for this court to set aside procedural bars and reconsider his ineffective assistance of counsel claim in light of this new evidence.
The Supreme Court considered two standards to govern this situation. One stan*1483dard, previously enunciated in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 897 (1986), required a petitioner to “show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, — U.S. at -, 115 S.Ct. at 867 (emphasis added). The other standard, set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), “looks to whether there is sufficient evidence which, if credited, could support the conviction.” Schlup, — U.S. at -, 115 S.Ct. at 868 (emphasis added).
The Supreme Court noted two “important” distinctions between the Jackson and Carrier standards. Schlup, - U.S. at -, 115 S.Ct. at 868. The Court articulated the second distinction as follows:
Second, and more fundamentally, the focus of the inquiry is different under Jackson than under Carrier. Under Jackson, the use of the word “could” focuses the inquiry on the power of the trier of the fact to reach its conclusion. Under Carrier, the use of the word “would” focuses the inquiry on the likely behavior of the trier of fact.
Id. (emphasis added). Accordingly, the Court adopted the less stringent Carrier standard.
The district court overlooked this subtle, yet significant difference. The district court cited Schlup in its August 1995 Order denying Mathenia’s actual innocence claim, App. J9 (Dist.Ct.Order at 4-5), but improperly applied the Jackson standard:
[T]he petitioner has not established that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. See Schlup, — U.S. at -, 115 S.Ct. at 866. Taking into account the prosecution’s evidence of petitioner’s actions prior to and on the date of the murders, the Court finds that a jury could have reasonably inferred that petitioner acted deliberately and with premeditation even if it had considered the petitioner’s institutional records, family history, and recent medical opinions of three mental health experts.
Id. at 5 (emphasis added).
After quoting this language, the majority observes that “[bjased on the evidence introduced at trial, a rational factfinder would find that Mathenia “was capable of, and i[n] fact did, deliberate before he killed the victims.’” Op. at 1482 (quoting Dist.Ct.Order at 5) (emphasis added). The majority then states that “[bjeeause the district court’s August order applied the proper standard to find that Mathenia had not shown actual innocence, Mathenia’s argument fails.” Id. at 1482.
I disagree. The district court’s misapplication of Schlup is evident on the face of its order. The district court applied this standard in direct contravention of a carefully considered, fundamental distinction mandated by the Supreme Court and dictates that we remand this matter for further proceedings. Schlup, — U.S. at -, 115 S.Ct. at 869; See also Jones v. Delo, 56 F.3d 878, 883 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1330, 134 L.Ed.2d 481 (1996) (only “in certain instances” should the court proceed without consideration under the correct standard by the district court).
II.
This court rejected Mathenia’s original ineffective assistance of counsel claim in Mathenia I. This claim, however, is not procedurally barred as successive in this action because Mathenia successfully asserts a claim of “actual innocence” enabling this court to reconsider this claim.
The new medical evidence submitted by Mathenia is unrebutted by the state and reveals that Mathenia has a history of méntal health problems.5 The experts examining Mathenia included Dr. William A. O’Connor, a psychologist at the Kansas City Mental Health Foundation, Dr. Richard Wetzel, Professor of Medical Psychology at Washington University Medical School, and Dr. Jonathan Pincus, Professor and Chairman of the De*1484partment of Neurology at the George Washington Medical Center.
The uneontroverted medical evidence offers compelling evidence that Mathenia was incapable of “cool reflection” prior to the murders. For example, Dr. Pincus states that, at the time of the murders,
Mathenia was incapable of “cool reflection.” Because of his retardation and brain dysfunction, he could not have deliberated before acting. Had the information which was available at the time of his trial been properly evaluated by a competent mental health expert and had Mr. Mathe-nia been properly examined at that time, this conclusion would have been obvious from a medical, psychological and neurological standpoint.
App. J7 (Pincus Aff. at 10).
State law dictates that an individual commits capital murder if he “unlawfully, willfully, knowingly, deliberately and with premeditation” kills another person. Mo.Rev.Stat. § 565.001 (1978) (repealed by L. 1983, S.B. No. 276, p. 922, § 1). The element that distinguishes capital murder from second degree murder is “deliberation.” State v. Gilmore, 650 S.W.2d 627, 629 (Mo.1983) (en banc). In other words, even if Mathenia committed murder with “knowledge” and “premeditation,” Missouri law prohibits his execution if he was incapable of cool deliberation. Id. Rather, Mathenia would be guilty of a lesser form of homicide.
Schlup requires Mathenia to demonstrate that it is more likely than not that “no reasonable juror” would determine that he possessed the “cool deliberation” necessary for a capital offense. Schlup, — U.S. at --, 115 S.Ct. at 868-69. “The word ‘reasonable’ in that formulation is not without meaning. It must be presumed that a reasonable juror would consider fairly all of the evidence presented. It must also be presumed that such a juror would conscientiously obey the instructions of. the trial court requiring proof beyond a reasonable doubt.” Id. at -, 115 S.Ct. at 868.
With the admission of Mathenia’s new evidence, a jury would consider the following evidence: (1) facts relating to the murder. Mathenia threatened to kill two women and killed them. After murdering Daisy Nash, Mathenia rode two blocks on his bike and murdered Louanna Bailey; and (2) uncontro-verted evidence that Mathenia lacked the requisite mental ability for “cool deliberation.” The new evidence specifically addresses the fact that Mathenia threatened the women before the murders, App. J2 (O’Connor Aff., June 16, 1993, at 9-10), that he rode his bike after the first murder and before committing the second murder, (Id. at 13; App. J2 (Wetzel Aff. at 25)), and that after the murders he attempted to hide incriminating evidence. App. J2 (O’Connor Aff. at 15). The evidence demonstrates that these actions are not inconsistent with a finding that Mathenia lacked “cool deliberation” when committing the murders. In fact, the new evidence concludes “to a reasonable degree of psychological certainty” that Mathe-nia did not possess the requisite “cool deliberation.” App. J2 (Wetzel Aff. at 26).
It is not enough that there is sufficient evidence for a conviction of capital murder. In order to find beyond a reasonable doubt that Mathenia coolly deliberated when committing these murders, a jury would need to essentially ignore the medical evidence. This would result in an unreasonable verdict, however, because the new evidence is uncontro-verted and places the facts in context. That context rejects any inference of “cool deliberation.”
I believe a remand to the district court is appropriate. The district court should hold an evidentiary hearing regarding Mathenia’s mental state at the time of the murders and utilize the appropriate Schlup analysis in reaching a decision as to whether Mathenia makes an “actual innocence” claim.
III.
Mathenia’s actual innocence claim creates a “gateway” by which we may consider his ineffective assistance of counsel claim. Schlup, — U.S. at -, 115 S.Ct. at 861. Indeed, the evidence surrounding his “actual innocence” claim is itself further evidence of the incompetence of his counsel during both the guilt and penalty phases of Mathenia’s trial.
*1485In Mathenia I, I noted three reasons why Mathenia’s counsel was unconstitutionally deficient: (1) by not taking action to assure that his mentally retarded client would not speak to the sheriff and incriminate himself; (2)by not attempting to suppress the confession or, at a minimum, to suppress the video portion of the confession; and (8) by not presenting evidence of Mathenia’s mental retardation at the guilt phase. Mathenia, 975 F.2d at 455-57.
I elaborated on the third point by observing that counsel’s “conduct in the guilt, phase of the trial, ... does little to suggest confidence in the outcome of the proceedings. [Trial counsel] called no witnesses at the guilt phase and rested without presenting a defense.” Id. at 457. Specifically, counsel “acted unreasonably by not ... including the presentation of reasonable evidence of Mathenia’s mental retardation....” Id. at 458.
At the time of Mathenia I, this court did not know the extent of Mathenia’s mental disease. The evidence now before us, however, indicates that the dissent underestimated the incompetence of Mathenia’s counsel at the guilt phase. Indeed, the discussion in the previous section indicates that the new evidence offers a compelling argument that Mathenia did not possess all the elements necessary for imposition of the death penalty.
This evidence also demonstrates the utter incompetence of counsel at the penalty phase of Mathenia’s trial. Counsel presented no evidence of Mathenia’s mental problems even though much of the new evidence now before us constitutes powerful mitigation which could and should have been presented to the jury. Furthermore, the following evidence was readily available to counsel at the time of the penalty phase, but was not utilized:.
(1) School records that Mathenia tested into the mentally retarded range with an I.Q. of 59 when he was 14 years old. App. HI (WISC Record Form, Nov. 1982).
(2) Farmington State Mental Hospital records indicating four commitments for evaluation and/or treatment. App. HI (Farm-ington State Hosp. Admission Note and Final Summary, July 31,1975).
(3) A social security physician’s report prepared eighteen months prior to the murders indicating evidence of mental deficiency and possible petit mal seizures. The report recommended further evaluations at the state hospital. App. HI (Medical Report Including Physician’s Certification Form/Disability Evaluations, Oct. 14, 1982).
(4) A psychological report, prepared three months prior to the murders, indicating that Mathenia suffered from organic brain damage. App. HI (Farmington State Hospital Psychological Evaluation, Jan. 11, 1984).
(5) A psychiatric report, prepared three months prior to the murders in relation to another matter, that Mathenia, “at the time of the alleged offense perhaps was incapable of understanding the nature, quality and wrongfulness of his act.” App. H4 (Certificate at 5, Jan. 23,1984).
Sadly, the incompetence of counsel prevented this evidence from reaching the jury during. the penalty phase and resulted in Mathenia’s death sentence-
CONCLUSION
It appears unlikely Mathenia will find relief in the federal courts. The Governor of Missouri, however, stayed Mathenia’s execution pending the results of a competency examination pursuant to state law. Mo.Rev. Stat. § 552.060 (1995). Not surprisingly, Mathenia was found incompetent to assist in the executive clemency proceedings. This dissenter trusts that Missouri will prevent the execution of a mentally incompetent man who faces execution because of the incompetence of his counsel.
. After the district court rejected Mathenia’s request for funding of a full medical and psychiatric examination, the Missouri Capital Representation Center made the necessary financial assistance for this important information.