dissenting.
I dissent from the principal opinion for two reasons. First, Mr. Amrine has not yet established that he is entitled to habe-as relief from his conviction of guilt. Second, Mr. Amrine has established that his sentence of death cannot now stand.
I. Conviction of Guilt
Habeas corpus is available to Mr. Am-rine if he establishes that his conviction and sentence constitute a manifest injustice. Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000); State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993). This requires Mr. Amrine to prove his actual innocence. State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 216 (Mo. banc 2001). To prove his innocence, Mr. Am-rine must show “that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Id. (citing Schlup v. Delo, 513 U.S. 298, 328-29, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Athough the majority indicates that they have lost confidence in Mr. Amrine’s final judgment of conviction and sentence of death, loss of confidence is not the applicable standard for relief from Mr. Amrine’s conviction of guilt by means of habeas corpus — actual innocence is the standard.
*552The recantations of witnesses Terry Russell, Randy Ferguson, and Jerry Poe merely raise the question of whether these witnesses were lying at Mr. Amrine’s trial, where a jury believed them, or whether they are lying now. This is a factual issue that requires resolution prior to any statement by us, from a cold written record, that Mr. Amrine is actually innocent.
Section 491.074, RSMo 2000,1 specifically provides that these three witnesses’ prior testimony remains as substantive evidence against Mr. Amrine, even though they now tell a different story. It says:
Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of a criminal offense shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.
This statute has been upheld and applied in State v. Blankenship, 830 S.W.2d 1, 12 (Mo. banc 1992). Accordingly, I concur with the separate opinion of Judge Benton and would refer this matter to a master for a hearing to determine, as a matter of fact and in light of all of the evidence, whether Mr. Amrine is actually innocent and, accordingly, whether he is entitled to relief from his conviction under habeas corpus.
II. Death Sentence
Mr. Amrine need not, however, prove actual innocence for relief from his sentence of death. The Supreme Court of Missouri is charged under section 565.035.3 with determining whether the death penalty is excessive or is disproportionate considering, among other things, “the strength of the evidence.” State v. Chaney, 967 S.W.2d 47, 60 (Mo. banc 1998); see also State v. Barriner, 34 S.W.3d 139, 153 (Mo. banc 2000) (Price, C.J., dissenting). I believe this is a continuing duty that must be addressed in light of new evidence such as the recantations in this instance. An assessment of the death penalty cannot withstand this analysis when it is based solely upon the testimony of witnesses all of whom recant, even though the recantations are not believed.
In this respect the loss of confidence standard utilized by the majority is applicable. There can be little doubt that the recantations substantially undercut any confidence that can exist in the assessment of the death peflalty against Mr. Amrine, and it should now be set aside.
. All statutory references are to RSMo 2000 unless otherwise stated.