dissenting.
Chief Justice Rehnquist observed in Schlup v. Delo that the “exegesis of the *1231Carrier standard” in determining actual innoeenee in a habeas action “will inevitably create confusion in the lower courts.” 513 U.S. 298, 334, 115 S.Ct. 851, 870, 130 L.Ed.2d 808 (1995) (Rehnquist, C.J., dissenting). The court’s opinion proves the point. In attempting to implement Schlup, the court exacerbates the confusion inherent in death penalty habeas litigation and opens the door to repetitive Schlup-type hearings in the federal district courts of this circuit by encouraging death-sentenced petitioners to release new and different bits of evidence, piecemeal, at various stages of the habeas proceeding.13 From this unfortunate result, I dissent.
It is clear to me that this appeal presents a freestanding Herrera claim and not a Schlup claim. Compare Schlup, at 312-14, 115 S.Ct. at 860 mth Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Amrine advances exculpatory evidence, almost all of it at odds with earlier testimony given by the same people under oath at the state court trial. Some of his current allegations, however, were not presented to the district court prior to its entry of the judgment that is the subject matter of this appeal. All of the information, if truthful, was available pri- or to the filing of the habeas petition.14
The court incorrectly concludes that Amrine has presented a Schlup gateway claim and not a “freestanding” actual innocence claim. Herrera, 506 U.S. at 405, 113 S.Ct. at 863. The distinction is critical because freestanding claims are judged by the “extraordinarily high” Herrera standard which requires a showing of unquestionable innocence.15 Schlup, at 316-18, 115 S.Ct. at 862 (citing Herrera, 506 U.S. at 417, 113 S.Ct. at 869). In order to have his claim judged under the more lenient Schlup standard, Amrine must link his proffer of new evidence to a trial error of constitutional magnitude.16 Schlup, at 314-16, 115 S.Ct. at 861. See also, McCoy v. Norris, 125 F.3d 1186, 1187 (8th Cir.1997) (new evidence must support constitutional allegations). The court acknowledges this distinction, but does not apply it.
The only constitutional error linked with Amrine’s new evidence is a claim that “his rights to due process were violated because there was insufficient evidence to support his conviction, especially in light of the recantations of Ferguson and Russell.” Ante, at 1225.17 The Supreme Court has held that claims of insufficient evidence are subject to federal habeas review. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, a Jackson claim cannot be the constitutional basis for the Schlup gateway because the two inquiries are fundamentally incompatible. “[T]he sufficiency of the *1232evidence review authorized by Jackson is limited to ‘record evidence.’” Herrera, 506 U.S. at 402, 113 S.Ct. at 861 (quoting Jackson, 443 U.S. at 318, 99 S.Ct. at 2788). To allow Jackson to serve as the constitutional predicate for a Schlup gateway claim would conflate two separate inquires. Jackson prohibits consideration of evidence outside the record; Schlup requires consideration of evidence outside the record. Similarly, under Jackson, new credibility determinations are prohibited, while Schlup often requires new credibility assessments. Compare Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 with Schlup, at 328-30, 115 S.Ct. at 868.
Furthermore, I cannot fathom how Amrine can use Jackson to avoid the Herrera standard if Herrera himself could not. Like Herrera, Amrine produced affidavits on appeal in which witnesses claimed that pressure from law enforcement prevented them from identifying the real killer at trial. Herrera, 506 U.S. at 398 n. 4, 113 S.Ct. at 859 n. 4. Like Herrera, Amrine invokes the due process clause to support his claim of actual innocence. Id. at 407, 113 S.Ct. at 864. Like Herrera, Amrine’s claims are thinly disguised attempts to convince us that his jury reached the wrong conclusion. However, “ ‘[fjederal courts are not forums in which to relitigate state trials.’ ” Herrera, 506 U.S. at 401, 113 S.Ct. at 861 (quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983)).
Assuming a Jackson claim could serve as the constitutional violation predicate to Schlup, Amrine still has not alleged a color-able Jackson claim. The relevant question under Jackson is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis omitted). Here, there is no doubt that a rational trier of fact, acting on the evidence presented at trial, could have found the essential elements of the crime beyond a reasonable doubt.
Even if Amrine had stated a Schlup gateway claim, he would not be entitled to relief. The court concedes that “[i]t remains to be seen, of course, if the new testimony is credible.” Ante at 1229. Later in the same paragraph, though, the court concludes “[a]l-though an evidentiary hearing [in district court] is not required if development of the claim would not establish actual innocence, Amrine has made a sufficient showing to require such a hearing since, if credited, [by whom is unexplained by the court but presumably by a jury] his evidence could establish actual innocence.” Id. (quotation omitted) (emphasis added). I confess I am not certain what message this paragraph conveys as a whole. I am certain, however, that the court is judging the credibility of Amrine’s various affidavits and is finding them sufficiently credible and reliable, presumably when compared with the testimony at the state trial, to require a district court hearing on Amrine’s “Schlup claim.”
This approach violates Schlup for at least two reasons. First, nothing in Schlup, or any other case I have been able to find, authorizes an appeals court to make credibility and reliability findings on this type of proffer. Second, Schlup specifically reserves this credibility and reliability inquiry for the district court. Justice O’Connor, the decisive fifth vote in Schlup, explained that, “a petitioner does not pass through the gateway ... if the district court believes it more likely than not that there is any juror who, acting reasonably, would have found the petitioner guilty beyond a reasonable doubt____ [T]he Court does not disturb the traditional discretion of district courts in this area. ...” Schlup, at 333, 115 S.Ct. at 870 (O’Connor, J., concurring) (emphasis added). In Amrine’s case, the district court, with most of this “new evidence” in mind, has determined that an evidentiary hearing is unnecessary. Indeed, the court seems to acknowledge the district court’s unique discretion by noting that in Schlup, Chief District Judge Hamilton, not the circuit court, decided on the need for a hearing for Schlup in the first instance and then, after hearing, found an “actual innocence” gateway that was open wide enough for consideration of Schlup’s defaulted constitutional claims. Ante, at 1227 n. 11.18
*1233The clear implication of the court’s opinion is that any time a death-sentenced petitioner comes forward, at any stage of the habeas proceeding — even appeal of that proceeding — with a recanting witness or other sworn allegations, even from convicted felons who have testified to the contrary under oath at trial; and the evidence, if credited by a well instructed trial jury, could lead to an acquittal; then, as a matter of course, an evidentiary hearing must be held in the district court. At that hearing, the district judge balances the evidence; retries the contested issues of guilt and innocence; and may set aside the state court verdict, if the district court concludes that any defaulted constitutional claim has merit. I do not believe that Schlup or any other Supreme Court case supports such a sweeping result. As Justice O’Connor observed in Schlup, there is a “ need to ensure that the actual innocence exception remains only a safety valve for the extraordinary case.” Schlup, 513 U.S. at 333, 115 S.Ct. at 870 (O’Connor, J., concurring) (quotations omitted). If the court’s reasoning prevails, then resourceful counsel will ensure that federal habeas is a never ending process.19
Accordingly, I dissent. I would affirm the well written opinion of the district court.
. As Justice Blackmun pointed out in his dissent from denial of certiorari in Callins v. Collins, 510 U.S. 1141, 1145, 114 S.Ct. 1127, 1129-30, 127 L.Ed.2d 435 (1994), each passing attempt to apply courtdeveloped habeas rules actually seems to erode any perception that we have established a system that accords proper deference to the competing concerns of comity, finality, fairness and due process in death penalty habeas adjudication. A similar theme was advanced in a recent American Bar Association Resolution adopted by its House of Delegates in February 1997. Report No. 107, Section of Individual Rights and Responsibilities of the Litigation Section of the American Bar Ass’n (adopted February 1997).
. As noted by the court, Amrine’s initial federal habeas lawyer was allowed to withdraw after the appeal was filed. New counsel has presented an affidavit from Jerry Poe, an inmate eyewitness who testified at trial and Kevin Dean and Edward Epps, fellow prisoners of Amrine who did not testify at trial. It can hardly be said they were unknown or unavailable to Amrine and his lawyers at any relevant time.
. These affidavits fall far short of establishing that Amrine is "unquestionably innocent” of the crime for which the jury convicted him.
. As I read the court's opinion, the district court is required, upon finding that the gateway has been opened, to consider the merits of any and all new constitutional claims whether or not they are related to the purportedly new and relevant evidence. I can find no support for such a result.
. Amrine does not claim that his attorney was constitutionally deficient in failing to discover these recantations at trial, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); nor does he claim that the prosection knew of this exculpatory evidence and failed to disclose it. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Indeed, there is no legal or factual basis for such claims.
. Particularly problematic in this case is that by finding the evidence sufficiently credible to diclate that the district court must hold an eviden*1233tiaiy hearing, this court has, in large measure, preordained the eventual outcome of the "gateway’’ inquiry.
. Recent experience shows that death penalty habeas cases in which persuasive counsel will be unable to generate new affidavits refuting earlier testimony, even eyewitness accounts, will be few and far between. Amrine and Schlup, both represented by the same lawyer, have amply demonstrated the predictability of this outcome. See also Parkus v. Delo, 33 F.3d 933, 936 (8th Cir. 1994) and Wilkins v. Bowersox, 933 F.Supp. 1496, 1502-03 (W.D.Mo.1996). As Justice O’Connor has noted, ”[a]ffidavits like these are not uncommon, especially in capital cases.... It seems that, when a prisoner's life is at stake, he often can find someone new to vouch for him. Experience has shown, however, that such affidavits are to be treated with a fair degree of skepticism.” Herrera, 506 U.S. at 423, 113 S.Ct. at 872 (O’Connor, J., concurring).