dissenting.
I believe Charles Goldblum is entitled to a federal evidentiary hearing to develop the record on the allegations before us. A brief recapitulation of the case’s relevant procedural history may help clarify why this concern prevents me from joining the court’s opinion.
In 1976, Goldblum, sitting in the back seat of a parked car, allegedly stabbed George Wilhelm, sitting in the driver’s seat, while Clarence Miller looked on from the passenger seat. Goldblum was convicted of first-degree murder and voluntary manslaughter in 1977, pursuant to a jury trial in the Court of Common Pleas of Allegheny County, Pennsylvania; he was sentenced to life in prison for the murder and 15-30 years’ imprisonment for other offenses. Miller was, as this court characterizes him, “the prosecution’s central witness” at the trial. In 1989, after Goldblum had exhausted his appeals and state post-conviction remedies, the United States District Court for the Western District of Pennsylvania denied his first habeas petition.20
Goldblum applied in 1996 for relief in state court under Pennsylvania’s Post-Conviction Relief Act (“PCRA”). The Allegheny County Court of Common Pleas (as the “PCRA court”) denied the petition without an evidentiary hearing. However, the Superior Court remanded the case for a hearing on one of Goldblum’s claims: whether Goldblum’s trial counsel was ineffective for failing to investigate “blood spatter” evidence or present testimony from Dr. Cyril Wecht, a forensic expert who, primarily on the basis of the “blood spatter” evidence, would have testified that Goldblum did not kill Wilhelm. On remand, the PCRA court took testimony from Dr. Wecht and the state’s rebuttal expert, Toby Wolson. Deciding that the remand was “strictly confined to the issue of Dr. Wecht’s testimony,” the PCRA court declined to hear the proffered testimony of other forensic experts who submitted affidavits on Goldblum’s behalf. Commonwealth v. Goldblum, No. CC 76021267, slip. op. at 6 (Allegheny County Ct. C.P. Aug. 22, 2001). The PCRA court again dismissed Goldblum’s claims. In 2002, the Superior Court affirmed.
In 2004, upon receiving permission from this court to do so, Goldblum filed a second federal habeas petition in the Western District of Pennsylvania alleging claims different from those in the first petition.21 In 2005, the Magistrate Judge recommended that this petition be dismissed because, in the Magistrate Judge’s view, the petition did not overcome the jurisdictional constraints on second or successive habeas petitions, as set forth in 28 U.S.C. § 2244 and under the “abuse-of-the-writ” standard, which require a showing of “actual innocence” or “cause and prejudice.”22 *242See In re Minarik, 166 F.3d 591, 600 (3d Cir.1999).
En route to recommending dismissal of the habeas petition, the Magistrate Judge denied an evidentiary hearing on whether Goldblum could overcome the jurisdictional constraints. Addressing this issue, the Magistrate Judge stated that the “threshold question” before the court is “whether the habeas petitioner ‘has failed to develop the factual basis of his [sic] claim in State court proceedings.’ ” Magistrate Judge’s Report and Recommendation (“R & R”) at 47 n. 21 (quoting 28 U.S.C. § 2254(e)(2)). In explaining the denial of an evidentiary hearing, the Magistrate Judge ruled that: (1) the state court record was complete with respect to whether Goldblum’s petition satisfied the “abuse-of-the-writ” standard; and (2) whether or not Goldblum’s petition was fully developed in state court, the decision to hold a hearing lay within her discretion and, in this case, there was no need for one. The District Court summarily adopted the Magistrate Judge’s report and recommendation and dismissed Goldblum’s habeas petition.
Before us now is the question whether the District Court had, and should have exercised, authority to adjudicate the claims underlying Goldblum’s second ha-beas petition, notwithstanding the jurisdictional constraints of 28 U.S.C. § 2244 and the “abuse-of-the-writ” doctrine. See Minarik, 166 F.3d at 602. Specifically, we must determine whether Goldblum has made a showing of “cause and prejudice” or “actual innocence” under the pre-AEDPA standard, as required to establish federal jurisdiction over a second ha-beas petition raising claims different from an earlier petition filed prior to AEDPA. See id. I share the court’s view that the question is jurisdictional in nature.23
I cannot, however, join the court because, in my view, an adequate answer to this question cannot be derived from the record before this court. Goldblum is entitled to an evidentiary hearing to determine whether the District Court has jurisdiction on the ground that a fundamental miscarriage of justice is at stake.24 This hearing would include evidence that the Common*243wealth’s key witness confessed to participation in the murder and testimony from highly credentialed forensic experts who believe Goldblum is innocent.
I respectfully dissent because, without this hearing, any conclusion as to our subject matter jurisdiction lacks an adequate basis. First, with respect to whether AEDPA forecloses an evidentiary hearing for Goldblum, I will point to certain “principles” announced by the court which, in my judgment, require significant modification. Next, I will take issue with the court’s view that the evidentiary hearing held by the PCRA court obviated any need for a District Court evidentiary hearing.25
I. The court’s “principles”
My disagreement with the court derives, in substantial measure, from the “principles” the court identifies and relies upon to determine whether the District Court erred in not holding an evidentiary hearing. The court frames the standards governing Goldblum’s contention as follows:
Goldblum ... contends that he is entitled to an evidentiary hearing under section 2254(e)(2) because the state court did not permit him to develop the record fully as the court precluded the testimony of two forensic experts who would have provided expert opinions similar to those of Dr. Wecht. Under 28 U.S.C. § 2254(e)(2),
[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim 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. Thus, under section 2254(e)(2), if an
applicant has developed the factual basis of his claims in the state court, he is not entitled to a federal evidentiary hearing. Furthermore, even if the factual basis is not sufficiently developed, a petitioner must demonstrate that his case falls within the very limited circumstances listed in section 2254(e)(2)(A) and (B), and only then is the district court permitted under the AEDPA, though not required, to grant an evidentiary hearing. See Campbell v. Vaughn, 209 F.3d 280, 286-87 (3d Cir.2000). We reiterate that the decision to grant an evidentiary hearing is “left to the sound discretion of
*244district courts.” Schriro, 127 S.Ct. [1933,] 1939 [2007]. Additionally, the Supreme Court has made clear that “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record,” as “[i]f district courts were required to allow federal habeas applicants to develop even the most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts.” Id. at 1940 (internal quotation marks and citation omitted).
The court then notes its position that “section 2254(e) makes clear that it applies in all proceedings ‘instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court,’ ” (quoting 28 U.S.C. § 2254(e)(1)), and goes on to state: “with these principles in mind, we review Gold-blum’s evidentiary hearing contention.” Thereupon the court identifies the respects in which, measured against the “principles” stated by the court, Goldblum’s contention comes up short.
A.
The first of the court’s “principles” that I believe is an inapposite statement of the law is the court’s pronouncement — after quoting 28 U.S.C. § 2254(e)(2) — as follows: “Thus, under section 2254(e)(2), if an applicant has developed the factual basis of his claims in the state court, he is not entitled to a federal evidentiary hearing.”26 Section 2254(e)(2) does not speak in terms to the situation to which the court refers — • the situation in which “an applicant has developed the factual basis of his claims in the state court.” Section 2254(e)(2) speaks in terms to the obverse situation — the situation in which the applicant has, as the statute puts it, “failed to develop the factual basis of a claim in State court proceedings,” with the result that the applicant is barred from an evidentiary hearing in the district court unless the applicant can satisfy the very demanding requirements of subsections' (A) and (B). There is no rule — whether of formal logic, or of semantics, or of statutory construction — which would require that § 2254(e)(2)’s preclusion of a federal evidentiary hearing for the applicant who “has failed to develop the factual basis of a claim in State court proceedings” should bar a federal eviden-tiary hearing for the applicant who has been able to present the factual basis of his claims in a state court.
To be sure, in most of the situations in which the applicant has been able to present the elements of his claim in a state court, it is unlikely that a further eviden-tiary hearing will be needed. But there are occasional circumstances where a supplementary federal evidentiary hearing may be called for — e.g., where the state court’s hearing, while encompassing the factual basis of a claim, was not “full and fair.” Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); see also Randy Hertz and James S. Lieb-man, Federal Habeas Corpus Practice and Procedure § 20.3e (5th ed. 2005) (identifying instances of unfair hearings). And § 2254(e)(2) is not a bar to such a hearing. “In cases where an applicant for federal habeas relief is not barred from obtaining *245an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.” Schriro v. Landrigan, — U.S. —, 127 S.Ct. 1933, 1937, 167 L.Ed.2d 836 (2007).
B.
What I think to be the court’s second mis-stated “principle” follows right after the first: “Furthermore, even if the factual basis is not sufficiently developed [in a state court], a petitioner must demonstrate that his case falls within the very limited circumstances listed in section 2254(e)(2)(A) and (B), and only then is the district court permitted under the AED-PA, though not required, to grant an evi-dentiary hearing.” The court’s formulation omits a crucial point. Section 2254(e)(2) bars a federal evidentiary hearing for a habeas petitioner who has not made a sufficient factual demonstration in a state court only when the inadequacy of the state court demonstration was the fault of the petitioner. See Williams v. Taylor, 529 U.S. 420, 429-37, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
C.
The court, in my view, runs counter to circuit precedent in advancing a third “principle”: “[SJection 2254(e) makes clear that it applies in all proceedings ‘instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court’ ” (quoting 28 U.S.C. § 2254(e)(1)). This court ruled, in Cristin v. Brennan, 281 F.3d 404, 413 (3d Cir.2002), cert. denied, 537 U.S. 897, 123 S.Ct. 195, 154 L.Ed.2d 166 (2002), that “[sjection 2254(e)(2) was not intended to govern all evidentiary hearings.” In Cris-tin, the district court held an evidentiary hearing on whether a habeas petitioner’s allegation of “actual innocence” was sufficient to excuse a procedural default, thus allowing the court to reach the petition’s merits. Section 2254(e)(2), which applies when an applicant “has failed to develop the factual basis of a claim in State court proceedings,” would, if applicable, have foreclosed the hearing. The Cristin court, determining that it was proper for the district court to hold a hearing, concluded that “the plain meaning of § 2254(e)(2)’s introductory language does not preclude federal hearings on excuses for procedural default at the state level.” Id.; accord Holloway v. Horn, 355 F.3d 707, 716 (3d Cir.2004) (applying Cristin).
A contrary interpretation of § 2254(e)(2), as the Cristin court recognized with respect to evidentiary hearings on whether a prisoner’s procedural default precludes a federal court from adjudicating his habeas petition, see 281 F.3d at 415-17, would severely handicap federal courts seeking to determine their subject matter jurisdiction.27 The Supreme Court *246instructs that allegations of “actual innocence” made for the purpose of excusing procedural default or a successive petition, are “procedural, rather than substantive” because the “claim of innocence does not by itself provide a basis for relief.” Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). That is, the claim of innocence “is a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim decided on the merits.” Id. (quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). State courts have no institutional interest in developing records on this issue of federal procedure. Cristin recognizes that it is therefore “unreasonable” to require a ha-beas petitioner to rely solely on the state record in attempting to pass through this gateway:
[S]ometimes a petitioner will develop facts in state court that later prove relevant to excusing a procedural default during federal proceedings. These occurrences, however, are coincidental, for it is rare that a state court intentionally provides a forum in which the petitioner can develop facts that might one day excuse his procedural default. It would be unreasonable to require a petitioner to rely on such coincidences to receive an evidentiary hearing on his procedural default.
Cristin, 281 F.3d at 416 n. 13.
Although Cristin concerned an issue of procedural default, its observations are no less apt with respect to hearings on a prisoner’s second habeas petition. Following Cristin, I conclude that the bar on evidentiary hearings in § 2254(e)(2) is inapplicable where a petitioner seeks a hearing to establish a showing of “actual innocence” under Schlup. Indeed, as addressed below, the inadequacy of the state court record in this case precisely illustrates the concerns that animate Cristin.
II. The District Court’s abuse of discretion
As § 2254(e)(2) does not foreclose a hearing to determine whether there is federal subject matter jurisdiction over Gold-blum’s second petition, I turn to the question whether a hearing is necessary. The court believes not, holding that Goldblum’s allegations “can be resolved by reference to the state court record.” This record consists of an evidentiary hearing held by the state PCRA court on the narrow issue “whether trial counsel was ineffective for failing to present the expert testimony of Dr. Cyril Wecht” at Goldblum’s 1977 trial. Commonwealth v. Goldblum, No. 174 WDA 2001, slip op. at 1 (Pa.Super.Ct. Oct. 24, 2002). In my view, the evidence adduced at that state court hearing is inadequate for evaluating the federal question before us, and, in adopting the Magistrate Judge’s report and recommendation that Goldblum’s habeas petition should be dismissed without an evidentiary hearing, the District Court abused its discretion by failing to require a hearing.
While the PCRA court’s evidentiary hearing was oriented toward a “narrow issue on remand,” id. at 12, the District Court was obligated to address whether Goldblum’s showing of “actual innocence” was sufficient to overcome the jurisdictional constraints on his second petition. This entails an in-depth assessment of whether the evidence, “old and new,” House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 2077, 165 L.Ed.2d 1 (2006) (describing the Schlup standard), that the petitioner presents would, in the aggregate, support a conclusion “that it is more likely than not that no reasonable juror would have convicted him *247in the light of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. 851. The facts underlying the “actual innocence” allegation are considered “ ‘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 328, 115 S.Ct. 851 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 160 (1970)). In making the determination, “the district court is not bound by the rules of admissibility that would govern at trial.” Id. at 327, 115 S.Ct. 851.
The evidence Goldblum proffers is highly relevant to such a determination. As the court recognizes, Goldblum offers new evidence to support his “actual innocence” allegation, including:
(1) [A] leading expert in blood spatter evidence, Dr. Wecht, who did not testify at the trial with respect to the blood spatter evidence, has offered his opinion that Miller, and not Goldblum, murdered Wilhelm; and (2) [evidence that] Miller confessed to a member of the State Board of Pardons and the attorney general of Pennsylvania that he participated along with Goldblum in the actual murder.
Goldblum also proffers as new evidence the submissions from the three other forensic experts who have opined that Gold-blum did not commit the stabbing. Additionally, the court identifies evidence that was already in the record that Goldblum contends is relevant to his “actual innocence” allegation:
First, he points to the dying declaration that Wilhelm made to the police wherein he stated, “Clarence Miller did this to me.” Second, he distinguishes the small spot found on his shirt cuff that no witness identified positively as blood with the excessive blood found on Miller’s clothes. Third, he believes that the defensive cuts on Wilhelm’s hands and multiple cuts and slashes on his torso, front, back, head and face, show that this was a one-person attack on a moving target. Fourth, he alleges that there was no forensic evidence supporting Miller’s contention that Goldblum began the assault by hitting Wilhelm in the back of his head with a wrench. Fifth, Miller had fresh scratches on his forearms and wrists 14 hours after the homicide while Goldblum did not have any scratches. Sixth, black vinyl gloves recovered from the scene were stained with Wilhelm’s blood and had hairs consistent with Miller’s arm hair. Finally, the blood spatter indicated that the blood was cast off in a left to right movement, suggesting that the killer was in the front passenger seat.
(Footnotes omitted). Also of relevance to Goldblum’s “actual innocence” allegation, as Goldblum contends and the court addresses elsewhere in its opinion, is the jury instruction at Goldblum’s 1977 trial, which presented the jury with a mistaken example of accomplice liability.28
*248In light of this evidence, the facts elicited at the PCRA court’s evidentiary hearing are clearly inadequate to determine whether “it is more likely than not that no reasonable juror would have convicted” Goldblum. Schlup, 513 U.S. at 327, 115 S.Ct. 851. The PCRA court heard from Dr. Wecht, but declined to take testimony from three other well-eredentialed forensic experts prepared to testify that the fatal stab wounds were not inflicted by Gold-blum.29 Moreover, the PCRA court, in *249making its factual determinations, does not appear to have considered the affidavits of these other experts. In its opinion evaluating Goldblum’s ineffective assistance claim, the PCRA court expressly addresses only Dr. Wecht’s testimony at the evi-dentiary hearing, Toby Wolson’s rebuttal testimony, and the trial court jury instruction on accomplice liability. The PCRA court makes no mention of the submissions of Goldblum’s other experts insofar as they pertain to the merits of the ineffective assistance claim. See Goldblum, No. CC 76021267, slip. op. at 3-5. Turning to whether it erred in fading to permit Gold-blum to call witnesses other than Dr. Wecht, the PCRA court states:
[Tjhe Superior Court’s opinion [remanding for an evidentiary hearing] indicates that their review was strictly confined to the issue of Dr. Wecht’s testimony and remanded on that basis alone. The court will not permit the defendant to conduct a hearing on issues which the Superior Court has deliberately excluded from its opinion and order of remand. Had the Superior Court indicated that the additional witnesses were to be addressed at an evidentiary hearing, this Court would have done so.
See id., slip op. at 6. Affirming the PCRA court’s decision to exclude these experts, the Superior Court made plain its position that submissions by other experts were irrelevant to the issue before them: “This Court did not remand for a hearing on the impact of other potential defense witnesses that were not called at trial.” Goldblum, No. 174 WDA 2001, slip op. at 11. In view of the narrow scope of the Superior Court’s remand, the PCRA court very likely did not err, as a matter of state law, in excluding the defense experts other than Wecht and in disregarding their submissions. However, without this evidence, the PCRA court’s evidentiary hearing fails to illuminate whether Goldblum makes a sufficient showing of “actual innocence.” Thus, as a matter of federal law, the limited hearing conducted by the PCRA court fails to provide an adequate basis for determining whether there is subject matter jurisdiction over Goldblum’s second habeas petition.
Despite this manifest inadequacy, the District Court, in adopting the Magistrate Judge’s report and recommendation, subscribed to the Magistrate Judge’s conclusion that an evidentiary hearing was not called for. In making her determination, the Magistrate Judge indicated that the exercise of her discretion “is informed by Townsend v. Sain ..., which sets forth the following bases for holding an eviden-tiary hearing”:
(1) [T]he merits of the factual dispute were not resolved in the state hearing;
(2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
Magistrate Judge’s Memorandum Order of May 11, 2005 (“Mem. Order”) at 3-4 (quoting Townsend, 372 U.S. at 313, 83 S.Ct. 745); Appendix (“App.”) 70-71. The Magistrate Judge concluded that “[n]one of the Toumsend factors require that a hearing be held here” and that “[i]n fact, the state *250court record appears to be complete, and to have provided petitioner a full and fair opportunity to litigate his claims.” Id. at 4; App. 71.
This determination cannot be reconciled with the record.30 The PCRA court did not conduct a hearing on Miller’s confession' — 'the very sort of “substantial allegation of newly discovered evidence” that, within the framework the Magistrate Judge endorses, would require an eviden-tiary hearing. Mem. Order at 3 (quoting Townsend, 372 U.S. at 313, 83 S.Ct. 745); App. 70. The court, in its opinion, concludes that this new evidence, “at the very most, ... further impeaches [Miller’s] credibility, but this effect is not significant.” I appreciate that Miller’s recital that he participated in killing Wilhelm does not exculpate Goldblum, who, according to Miller, was a co-participant. But if Miller were available to testify at an evi-dentiary hearing, cross-examination might shed added light on the asserted participation. Possibly it would reveal that Goldblum stabbed initially, but not deeply, and then stopped; or that Miller lured Wilhelm to meet in the parked car so that Goldblum could beat him, but that only Miller had stabbed Wilhelm. Or, on the other hand, cross-examination might strengthen the state’s insistence that Gold-blum played a willing role in Wilhelm’s murder. The point is that, without an evidentiary hearing in which Miller is required to answer questions, one can hardly be sure that the confession’s impairment of Miller’s credibility “is not significant.”
■ The court says that it “do[es] not understand why [Miller] would have a new motive to tell the truth at that late date.” According to Warden Richard Gigliotti, to whom Miller confessed, Miller “states that he has made peace with Jesus Christ and that he has no reason to lie because he knows due to his health that he probably will not be alive for very many years.” Deposition of Richard Gigliotti; App. 330. This surely is a plausible motive, one that could account for a disposition to tell the truth now — -just as the prospect of a murder conviction could account for a decision to lie at Goldblum’s trial. This concern notwithstanding, Miller’s confession, considered in light of the record, including the victim’s dying declaration — “Clarence Miller did this to me’’ — -and evidence of a one-person attack, still could establish that no reasonable juror would have voted to convict Goldblum.
Furthermore, contrary to the Magistrate Judge’s determination, the record also contains “material facts” that “were not adequately developed in the state-court hearing,” which — again, within the framework the Magistrate Judge purports to adopt — would require a federal evidentiary hearing. Mem. Order at 3 (quoting Townsend, 372 U.S. at 313, 83 S.Ct. 745); App. 70. The PCRA court declined to consider submissions from Goldblum’s experts other than Dr. Wecht, or to take testimony from those experts. Yet these submissions contain forensic reasons for believing that Goldblum is innocent and, significantly, reasons why a sound forensic assessment of Goldblum’s innocence is possible based on the evidence available.31 The *251court balances the experts’ assessments— which, Wecht apart, were not developed in an evidentiary hearing — against the strength of Toby Wolson’s rebuttal testimony, which was developed in an eviden-tiary hearing, and concludes that testimony from these experts would be “tentative” and “amounting to speculation” (quoting Goldblum, No. CC 76021267, slip. op. at 5. Given the credentials of the experts, the court’s confident assumption of the non-persuasiveness of testimony not before the court strikes me, with all respect, as unwarranted.
Without a federal evidentiary hearing, the court must rely on factual determinations that were developed from an inadequate hearing and, I believe, are significantly weakened by the record when
viewed in its entirety. Goldblum proffers a wealth of evidence supporting his allegations. But no court — state or federal — has held a hearing adequate to address this evidence; I therefore believe the District Court abused its discretion in failing to do so. 32
III. Conclusion:
The law entitles Goldblum to an eviden-tiary hearing. I would remand this case to the District Court with an order to conduct a hearing on whether the petitioner has made a showing of “actual innocence” sufficient to establish subject matter jurisdiction over his habeas petition. I would do so because Schlup and Cristin afford Gold-blum such protections — protections whose importance is powerfully illustrated by the *252circumstances presented by this case.33
. The petition raised two claims: (1) whether Goldblum was denied due process by the trial court’s failure to require a pre-trial psychiatric examination of Miller or to grant a new trial based on evidence attacking Miller's credibility, and (2) whether the trial court violated Goldblum’s right to confront witnesses by admitting certain out-of-court declarations by the dying victim.
. The claims underlying the second petition include ineffective assistance of counsel for failure to investigate or present exculpatory "blood spatter" evidence, and violation of due process through a faulty jury instruction on accomplice liability.
.As the court explains, because Goldblum filed his first petition in 1991, prior to AED-PA, we must apply the "abuse-of-the-writ” standard. To determine whether the "substantive gatekeeping provisions” of § 2244(b)(2) would have a “genuine retroactive effect,” we must determine whether the *242petitioner "can show that he would have been entitled to pursue his second petition under pre-AEDPA law.” In re Minarik, 166 F.3d 591, 602 (3d Cir.1999). If so, then the gatek-eeping provisions of § 2244(b)(2) are inapplicable, and the "abuse-of-the-writ” standard governs the showing a petitioner must make to establish federal jurisdiction over a successive petition. See id.
Under this standard, Goldblum may overcome the jurisdictional constraints against a second petition with a showing of "actual innocence,” a concept delineated in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The "actual innocence” showing under this standard establishes that the petitioner’s application falls within "the narrow class of cases ... implicating a fundamental miscarriage of justice.” McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (alterations omitted). This showing is somewhat less demanding than the "actual innocence” showing a petitioner who has been sentenced to death must make to establish that, absent any other constitutional violation, his execution would violate the Eighth Amendment. See Schlup, 513 U.S. at 313-17, 115 S.Ct. 851 (distinguishing Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).
. See Benchoff v. Colleran, 404 F.3d 812, 815 (3d Cir.2005) (holding that "whether [a petitioner’s] habeas petition was ‘second or successive’ within the meaning of 28 U.S.C. § 2244(b) ... implicates both our appellate jurisdiction and the District Court’s subject matter jurisdiction”).
. I am persuaded that a hearing is required to determine whether Goldblum can establish "actual innocence” sufficient to permit the filing of his second petition. I therefore find it unnecessary to consider whether the District Court properly denied a hearing on Goldblum's "cause and prejudice” allegation.
. Though I find it inappropriate to further evaluate Goldblum's allegations without the benefit of an adequate record, one aspect of the court’s analysis requires comment. In holding that Goldblum failed to establish his claims, the court appeals to House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), where a petitioner's procedural default was excused by the likelihood of his innocence, and Albrecht v. Horn, 485 F.3d 103 (3d Cir.2007), where it was not. In each of these cases, the district court conducted evidentiary hearings on the petitioner’s innocence claim. The appellate courts in House and Albrecht reviewed in detail the district courts’ determinations. This thorough review would have been impossible without drawing upon the rich evidentiary records that the federal district courts developed after full and fair hearings on an issue of federal jurisdiction. In my view, the records in House and Albrecht provide a marked contrast to the record before us.
. The court's further analysis, quoted above, makes clear that, by this statement, it means that § 2254(e)(2) precludes a hearing for Goldblum. The court concludes from this analysis that § 2254(e)(2) forecloses a hearing because Goldblum's allegations were developed in the state court record: "Even if we agreed with Goldblum that he has been denied the opportunity to develop the factual record through no fault of his own, and therefore section 2254(e)(2) did not preclude an evi-dentiary hearing, such a finding does not necessarily entitle him to one” (emphasis added).
. Moreover, as the Cristin court also recognized, a contrary interpretation of § 2254(e)(2) would not further AEDPA’s aims. The "clear purpose" of the provision is "to encourage litigants to pursue claims in state court prior to seeking federal collateral review.” Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). With respect to evidentiary hearings to establish cause and prejudice or a miscarriage of justice, the Cristin court noted that it was "unaware of how permitting ... the opportunity to develop facts on this issue of federal law would in any way impugn our 'respect for state procedural rules’ or diminish the importance federal courts must place on 'conceptions of comity and of the importance of finality in state criminal litigation.' ” Cristin, 281 F.3d at 417 (quoting Coleman v. Thompson, 501 U.S. 722, 747, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)); see also id. at 415 ("[T]he question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.” (quoting *246Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988)).
. The court's analysis of the jury instruction is tangential to whether Goldblum’s petition merits a hearing, but I take issue with it. The court, having concluded that it could do so without an evidentiary hearing, needed to address whether the erroneous jury instruction increases the likelihood that "in light of all the evidence,” Schlup, 513 U.S. at 328, 115 S.Ct. 851, "it is more likely than not that no reasonable juror would have convicted [the defendant].” Id. at 327, 115 S.Ct. 851. As the court recognizes, this "actual innocence” question is before the court, but the petitioner’s underlying constitutional claims are not. Yet, addressing the significance of the jury instruction, the court relies on cases concerning whether an instruction was so flawed that it is a due process violation in itself.
*248It appears to me that, if that constitutional issue were to be addressed, the jury instruction could not be squared with due process. Under Pennsylvania law, to be found guilty of first degree murder — either as the primary actor or as an accomplice — one must have a specific intent to kill the victim. See Smith v. Horn, 120 F.3d 400, 410 (3d Cir.1997). Yet one of the trial court’s examples of accomplice liability illustrated a situation where there was no such specific intent:
If two men agree to rob a bank and one man stands outside as the lookout and another man goes in, and the man who is inside the bank shoots and kills a teller, they are both guilty of first degree murder, including the man standing out front, because he was an accomplice who was actively aiding the man who was inside the bank performing the robbery and both men should be guilty of first degree murder because of a shared criminal intent to commit that specific crime.
R & R at 55-56 (quoting Tr. 3434-36). Here, the trial court suggests that the lookout — who had no intent to kill — could be found guilty of first degree murder. This example is particularly likely to have confused Goldblum’s jury in light of the facts of the case, as it is uncontested that Miller and Goldblum were involved in a shared criminal enterprise prior to the killing. I am therefore unable to accept the court's conclusion that the trial court's flawed example was cured by the rest of the instruction (the language of which is not, to say the least, a model of clarity).
But the question whether the accomplice liability instruction was unconstitutional is far different from the question this court is called upon to address. Any confusion this instruction may have caused the jury, even if failing to rise to the level of a substantive constitutional violation, is appropriately considered in determining whether a petitioner has made a showing of "actual innocence” under Schlup. Given the significance of the error, I find the jury instruction highly relevant to whether any reasonable juror would convict Goldblum in light of the evidence now before the court.
. The experts ready to testify for Goldblum have strong credentials. Dr. Michael Baden is the Director of the Forensic Science Unit of the New York State Police, and has been "an expert consultant in numerous cases including the death of John Belushi, the recent reinvestigation into the death of Medgar Ev-ers and the Congressional investigations of the deaths of President John F. Kennedy and Dr. Martin Luther King.” See Affidavit of Dr. Michael Baden and Barbara C. Wolf, M.D.; Appendix ("App.”) 305-06. Dr. Henry C. Lee, Director of the Forensic Research Training Center in Connecticut, see App. 291, has worked on high-profile cases, including the O.J. Simpson trial, the William Kennedy Smith rape trial, the Jon Benet Ramsey homicide investigation, the Value Jet accident investigation, and police shooting investigations in New York and New Jersey. See curriculum vitae of Dr. Henry C. Lee, available at http://www. drhenry-lee.com/about/dr_lee_cv_xesume.pdf. Dr. Herbert L. MacDonnell, an expert on blood spatter analysis, is a founder of the Bloodstain Evidence Institute, author of “over one hundred original papers on both analytical chemistry and forensic science,” and former President of the International Association for Identification. Affidavit of Dr. Herbert L. MacDonnell; App. 296-97.
These experts' examinations led them to conclude that Goldblum did not do the fatal stabbing. See Laboratory Report and Affidavit of Henry C. Lee, Ph.D.; App. 287-95 ("[I]t is my opinion to a reasonable degree of forensic certainty on the basis of the evidence available that Goldblum was not the individual who inflicted the fatal stab wounds to Mr. Wilhelm.”); Affidavit and Forensic Report of Dr. Herbert L. MacDonnell; App. 296-304 (concurring "completely” with the affidavit of Dr. Henry C. Lee and noting that "the absence of photographs does not prevent general conclusions from being drawn based upon the description of the bloodstains as was reported in this case”); Affidavit of Dr. Michael Baden and Barbara C. Wolf, M.D.; App. 307 ("[I]t is our opinion to a reasonable degree of *249medical certainty on the basis of evidence available that Goldblum was not the individual who inflicted the fatal stab wounds to Mr. Wilhelm.”).
. As the Magistrate Judge made this factual determination without conducting an eviden-tiary hearing, the determination is subject to plenary review. See Richardson v. Penn. Bd. of Probation and Parole 423 F.3d 282, 287 n. 3 (3rd Cir.2005).
. In their submissions, two of Goldblum’s experts, Drs. Baden and Wecht, take direct issue with Toby Wolson’s conclusion that, without blood spatter photographs, forensically sound judgments as to Goldblum’s innocence are not possible. Dr. Wecht further asserts that, had he been permitted to present surrebuttal testimony at the PCRA court’s evi-*251dentiary hearing, he would have testified that "firm, reliable and trustworthy conclusions[ ] can be drawn from the description of the blood spatter given at trial.” Affidavit of Dr. Cyril H. Wecht; App. 286. These conclusions are consistent with the Commonwealth's statement to the District Court that "the testimony of Detective Freeman [at Goldblum’s trial] adequately addressed the issue of blood on the dashboard” and that, "although actual close-up photographs were not taken, there is no prejudice to the petitioner.” Commonwealth’s Answer to Petitioner’s Motion for Leave of Court to Serve Respondents with Request for Production of Documents at 7; App. 80.
. Schriro, relied on by the court, does not support denial of a hearing. In Schriro, the Court addressed whether a district court abused its discretion by denying an evidentia-ry hearing on a petitioner’s underlying habeas claim. See 127 S.Ct. at 1939-40. The Court considered how AEDPA, by enhancing the level of deference accorded to state court judgments, affects the determination whether to grant an evidentiary hearing on the constitutional merits of a habeas claim. With respect to that issue, the Court held that "if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evi-dentiary hearing.” Id. at 1940. Schriro thus holds that an evidentiary hearing is inappropriate when a petitioner’s substantive claim could not provide a basis for relief under § 2254. That holding thus refines the Court’s prior guidance that a district court has authority to conduct a hearing “where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (emphasis added). This court has applied Schriro accordingly. See Taylor v. Horn, 504 F.3d 416 (3d Cir.2007) (affirming, pursuant to Schriro, a district court’s denial of an evidentiary hearing because the record refuted the petitioner’s factual allegations, rendering a further evi-dentiary hearing on the merits of the petitioner’s constitutional claim unnecessary).
Unlike the petitioner in Schriro, Goldblum asserts facts that, if true, would entitle him to the relief he seeks. Also in contrast to the petitioner in Schriro, the relief in immediate question is not habeas relief, but the grant of an evidentiary hearing that bears on the procedural question whether the District Court has jurisdiction to adjudicate the habeas application. Cristin, not Schriro, is the apposite authority.
. Footnote 16 of the court’s opinion refers to the written statements of two persons who have expressed grave doubts that the jury which found Goldblum guilty of murder reached a supportable verdict. In the two numbered paragraphs that follow, an attempt is made to place the statements in a somewhat broader context and to provide somewhat more extended excerpts from the statements:
1. On January 14, 1994, the Honorable Donald E. Ziegler, the judge who presided at Goldblum's trial (Judge Ziegler served on the Allegheny County Court of Common Pleas before appointment to the federal bench), wrote to the Pennsylvania Board of Pardons in support of Goldblum's application for clemency. Among the grounds for clemency urged by Judge Ziegler were the following:
First, Mr. Goldblum has provided persuasive evidence that he may be serving time for committing an arson and witnessing [emphasis in original] a homicide. Mere presence at the scene of a crime does not constitute evidence of complicity in a homicide ....
Although the jury chose to believe Clarence Miller, and convict Mr. Goldblum of murder, I have been troubled for years by the dying declaration of the murder victim: “Clarence — Clarence Miller did this to me.” It is a moral and legal precept that a person is presumed to speak the truth when he is faced with death. The victim knew he was dying and he never mentioned the name of Charles Goldblum. In short, the murder conviction was based on the testimony of Miller and the jury's apparent dislike for Mr. Goldblum.
In my opinion, Mr. Miller's testimony was suspect and quite frankly, if I was the factfinder, I would have rejected as unpersuasive much of the testimony of this individual.
Letter of the Honorable Donald E. Ziegler to the Pennsylvania Board of Pardons; App. 310.
2. On June 17, 1998, F. Peter Dixon, the lawyer who, some two decades earlier, served for several years in the Office of the Allegheny County District Attorney and, according to his own estimate, "prosecuted approximately 100 homicide cases,” executed an affidavit in which he stated:
I was the trial prosecutor in the case of Commonwealth of Pennsylvania v. Charles J. ‘‘Zeke” Goldblum ... and the companion case of Commonwealth of Pennsylvania v. Clarence Miller. These two cases concerned primarily the murder of George Wilhelm in downtown Pittsburgh on February 10, 1976.
The case of Commonwealth v. Charles Goldblum was the most prominent case in my career as a lawyer. It was also the most factually complex and most difficult to understand of any case I have ever been involved with.
I have recently been exposed to information concerning this case -which was not available to me at the time of trial. This information is contained in various affidavits and in Goldblum’s statement, all of which is part of the record in Mr. Gold-blum's present post-conviction litigation.
Seeing this new information caused me to go back and carefully review and study the trial transcript in this matter.
Based on my review of the trial and the information which has been available since the trial, I have come to the very firm conclusion that Charles Goldblum had nothing to do with the murder of George Wilhelm other than being a frightened witness to that murder and an accessory after the fact....
Despite my best efforts in trying these cases, a miscarriage of justice has occurred.
Affidavit of F. Peter Dixon; App. 312-13.
I agree with the court that these statements of opinion are “not evidence.” For me it therefore follows that the District Court had no obligation to factor the Ziegler and Dixon statements into its assessment of whether to hold an evidentiary hearing. My view that it was error — an abuse of discretion — on the part of the District Court to decline to conduct an evidentiary hearing does not depend on the Ziegler and Dixon statements.
On the other hand, I am bound to say that, given Judge Ziegler's and Mr. Dixon's special perspectives and formal responsibilities with respect to Goldblum’s trial, the views the trial judge and trial prosecutor have expressed seem to me to add further impetus to what I *253conceive to be the duty of the federal courts to give careful scrutiny, pursuant to an eviden-tiary hearing, to Goldblum’s claims.