dissenting:1
These appeals present an issue of fundamental importance to the court’s role in safeguarding constitutional rights through habe-as review: the authority of this court to reconsider a claim that a constitutional violation has led to a serious injustice. Notwithstanding the express language of our habeas statute that “a prisoner ... claiming the right to be released upon the ground that ... the sentence was imposed in violation of the Constitution of the United States ... may move the court to vacate [or] set aside ... the sentence ... at any time,” D.C.Code § 23-110(a) & (b) (1996) (emphasis added), the majority imposes the two-year limitation of Rule 33 of the Superior Court Rules of Criminal Procedure and the judicially-created rule in M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), to strip this court of authority to even consider whether it should hear appellants’ constitutional claim. The majority, while recognizing that appellants present *515“non frivolous claims that they have spent many years behind bars for a crime they did not commit,” ante at 513, nonetheless uncomfortably concludes that Rule 33 “acts as an absolute bar, no matter how compelling the showing of innocence,” ante at 514. That unsatisfactory result is a self-inflicted and unsupported limitation on the court’s authority.
First, the two-year limitation of Rule 33 is directed only to new trial motions “based on the ground of newly-discovered evidence.” Rule 33’s time limitation does not apply to the post-conviction motions before us, filed under D.C.Code § 23-110, which are centered on a constitutional claim that is enhanced by an assertion of factual innocence based on newly-discovered evidence.2 The majority repeatedly mischaracterizes appellants’ post-trial motions as if they were based exclusively on new evidence, ignoring the constitutional claims at the core of their arguments. As such, these motions were appropriately filed under D.C.Code § 23-110, which provides for review of a sentence “imposed in violation of the Constitution.” Under D.C.Code § 23-110, a motion may be filed “at any time.”
The majority heavily relies on Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), to preclude the court’s consideration of appellants’ new evidence. That reliance is misplaced, however, as the Supreme Court has expressly distinguished a free-standing claim of actual innocence based on newly-discovered evidence, such as presented in Herrera, from constitutional claims supported by assertions of actual innocence. See Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In the latter case, the conviction “may not be entitled to the same degree of respect as one, such as Herrera’s, that is the product of an error-free trial.” Id. at 316, 115 S.Ct. 851. Here, because appellants claim that their trial was constitutionally flawed, the Hemra standard is inapplicable. See, e.g., United States v. Dale, 329 U.S.App. D.C. 335, 338, 140 F.3d 1054, 1056 (1998); Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir.1997); Burks v. Dubois, 55 F.3d 712, 717 (1st Cir.1995); Miller v. Comm’n of Correction, 242 Conn. 745, 700 A.2d 1108, 1129 n. 28 (1997); In re Elizondo, 947 S.W.2d 202, 206 n. 1 (Tex.Crim.App. 1996).3
*516Second, when the majority acknowledges appellants’ constitutional claims, it applies the rule in MAP. v. Ryan to preclude review under § 23-110 because this court was previously presented with and implicitly decided the same constitutional claims on direct appeal (albeit without the benefit of the new evidence supporting the claim of factual innocence). That outright refusal to consider the constitutional claims misses the point of ha-beas review under § 23-110. As we have already observed, application of the rule in MAP. to this context
fails to comprehend the true nature of a collateral attack. One primary purpose of § 23-110 is to enable convicted prisoners to escape the shackles of res judicata when constitutional rights have been violated .... By its very definition, a collateral attack on a tainted sentence involves a challenge to the decision of the court that has previously adjudicated the issue. Despite this fact, § 23-110 requires the courts of the District of Columbia to be eternally vigilant in ensuring that prisoners are not subject to unlawful incarceration. For this reason we have necessarily held that strict principles of res judicata ... do not apply in these proceedings.
Kirk v. United States, 510 A.2d 499, 503-04 (D.C.1986).4
The view we expressed in Kirk echoes the Supreme Court, which “has consistently relied on the equitable nature of habeas corpus to preclude application of strict rules of res judicata.” Schlup, supra, 513 U.S. at 319, 115 S.Ct. 851. The rule in MAP. is not jurisdictional; rather, it is an “internal policy” adopted by the court for the sake of good order at the time it became “the highest court for the District of Columbia, no longer subject to review by the United States Court of Appeals.” M.A.P. v. Ryan, supra, 285 A.2d at 312. The rule that one division’s ruling binds a subsequent division, and may be reviewed only by the court en banc, is for the purpose of preserving uniformity among the various divisions of the court. This is a common rule in appellate courts that decide cases in divisions of less than the full court. Such an internal rule, however, cannot trump a right to judicial review created by statute, under § 23-110. Moreover, as with any internal policy, we have recognized that it might have to give way on occasion, where “we are bound to follow [a different rule] on federal constitutional grounds.” Id.
The question before us is not whether the court has authority to consider this habeas petition, but under what circumstances it is appropriate for the court to do so, consistent with the competing values of institutional finality and the constitutional rights of the individual. Habeas relief is limited, but it exists to lend a further, attentive judicial ear to correct serious trial court error resulting in injustice. The majority’s reasoning imposes a procedural straitjaeket on the court that turns a deaf ear to habeas petitioners, no matter how serious the constitutional error or how compelling the claim that the jury’s verdict was thereby misled about the petitioners’ factual innocence, so long as final judgment was more than two years earlier or if the matter previously was considered by the appeals court. In my view, this narrow interpretation renders our habeas recourse under § 23-110 “inadequate” and “ineffective” when compared with the availability of habeas review in the federal courts. Cf. 28 U.S.C. § 2255 (1998) (permitting second and successive habeas petitions from federal con-*517vietions raising constitutional claims where there is evidence 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 reasonable fact finder would have found the movant guilty of the offense”); Schlup, supra, 513 U.S. at 327-28, 115 S.Ct. 851 (defining standard for “fundamental miscarriage of justice exception” to avoid procedural bar to reconsideration by a federal court of the same constitutional claim previously considered and rejected by trial and appellate courts in state and federal court systems).
I venture that the majority’s narrow interpretation of our habeas statute, if allowed to prevail, could subject us to unprecedented federal court habeas review under § 23-110(g).5 Cf. Triestman v. United States, 124 F.3d 361, 380 (2d Cir.1997) (holding that where defendant is barred by newly amended § 2255 from presenting claim of actual innocence he could not have presented earlier, § 2255 relief is inadequate and ineffective and habeas corpus petition can therefore be brought under 28 U.S.C. § 2241(c)(3)). I am hopeful that this court will rehear these appeals en banc to fashion a rule that will permit, within strict but reasonable confines, the reconsideration of meritorious claims that a constitutional violation has led to the conviction of an innocent person. Although I write in dissent at this time, in the following pages I set" out the standard, derived from the Supreme Court’s opinion in Schlup, that I propose be adopted by the full court.6
I.
Michael A. Diamen, Joseph Nick Sousa and Joseph Wayne Eastridge appeal from the trial court’s denial, without a hearing, of their joint motion pursuant to D.C.Code § 23-110 to vacate their convictions of first-degree murder while armed, entered over twenty years ago, in a racially-motivated killing involving a motorcycle club, known as “the Pagans,” to which they belonged. As part of their collateral attack, appellants also sought disclosure of grand jury testimony and discovery from the government. I reject the government’s contention that appellants are necessarily barred from presenting their constitutional claims anew, after this court affirmed their convictions on direct appeal that raised similar concerns. I would hold that in view of the significant new evidence proffered by appellants, and its importance to their claims of constitutional trial error and actual innocence, this case appears to present special circumstances warranting review. I, therefore, would vacate the trial court’s denial of the § 23-110 motion, remand for an evidentiary hearing consistent with the principles set out in this opinion and instruct the trial court to permit discovery, for purposes of that hearing, of grand jury testimony and other exculpatory material that may be in the possession of the government.
II.
The 1976 Murder THal
In 1976, a jury found appellants guilty of first-degree murder while armed for stabbing Johnnie Battle on November 1, 1974. The following version of the evidence produced at the trial is taken from this court’s affirmance of appellants’ convictions:
On the evening of November 1, 1974, appellants [including Diamen, Sousa and Eastridge] and them companions (the “Richter group”, as they were referred to repeatedly at trial) arrived at the Godfa*518ther Restaurant located in the 4900 block of Wisconsin Avenue, N.W., Washington, D.C. The Richter group arrived from Virginia in two cars and parked on Fessenden Street, a short distance from the restaurant. They entered the restaurant but were asked to leave by the doorman acting on instructions from the owner who was familiar with the Richter group. They started to leave. Jones, one of Richter’s companions, picked up a large bag of popcorn and carried it from the restaurant. As they left the restaurant they encountered the decedent Johnnie Battle, Armón Allen, and Joseph Brown (the “Battle group”). Richter accused two members of the Battle group of insulting him, but both men denied the allegation. Both groups left the restaurant with the Richter group following the Battle group towards Fessen-den Street. During this walk, the Richter group continued to taunt the Battle group. Allen, who became separated from the Battle group, was frightened, took a of [sic] metal comb from his pocket, and was pushed into Fessenden Street by a member of the Richter group. The push turned him around so that he was facing Richter who had a knife at his side. Two other members of the Richter group approached Allpn, but Richter told them not to do anything and he ended the confrontation without further ado. Allen remained at the corner of Fessenden and Wisconsin, while appellants and their companions walked west on Fessenden. Meanwhile, Brown and Battle went to Battle’s car where Battle armed himself with a pistol, started walking back towards Wisconsin Avenue, and there met the Richter group. Jones took the popcorn hé was carrying and threw it at Battle while insulting him. Brown observed that persons in the Richter group were armed with knives. Battle drew his pistol and began firing. One shot hit Bruce Hunter, a member of the Richter group. Richter immediately left the scene to take Hunter to Arlington Hospital. Brown began running towards Wisconsin and Fessenden where he saw Allen. Before they both returned to the Godfather to seek refuge, they observed several members of the Richter group chasing Battle across Wisconsin Avenue into a small park. The doorman and owner of the Godfather also observed this chase. Another customer at the Godfather saw the chase, as did David Brady who was getting into his car on Wisconsin Avenue. When Battle reached Emery Street, he tripped, and his pursuers jumped him from two different directions and began beating and kicking him. The Godfather’s owner was outside the restaurant and saw two cars with Virginia tags. pass. The police arrived and spoke to the owner who pointed out one of the cars. The ear then drove through a red light and the officer pursued. When the officer stopped the car it was occupied by Sousa, Diamen, Jones, and Eastridge. The owner identified the four as having been in the Godfather and as part of the group that was harassing Brown, Allen, and Battle. The men were ordered out of the car, and Diamen sat down on a small grassy area. A knife was found under the front seat of the car, and bloody newspapers were found under the back seat. Knives were also found, on Eastridge and Jones. Blood was found on Jones’ clothing and boots, Diamen’s pants, and Sousa’s shirt. In the meantime, the body of Johnnie Battle was discovered by four civilians. The appellants Sousa, Eas-tridge, and Diamen were arrested and charged with murder. Richter was arrested a few blocks from the Virginia hospital, and a knife was seized from his belt. The day after the murder, a witness discovered a knife in a pile of leaves near the grassy spot where Diamen waited while the car was being searched.
Appellants’ trial lasted five weeks with the government presenting 36 witnesses and over 75 exhibits. All defendants charged with first-degree murder while armed admitted their presence at the Godfather and in its vicinity on the night of the murder, but denied participation in the murder. Richter’s defense to the assault charges was self-defense. .
Dorothy Willett testified that Sousa and Eastridge, while free on bond, met her on several occasions. Her testimony revealed that both Sousa and Eastridge admitted *519their participation in the murder., She testified, in part:
Well, Nick [Sousa] said that it was a nigger that got Kenny and we got us one. And he said — I asked him at that time, I asked him, “Nick, you didn’t really do anything like that, did you.”
He said, “Not me, he did it.” And he looked at Wayne [Eastridge].
And Wayne said to Nick, said, “You’re the one that cut his nose off.”
And Nick said, “well, yeah, I did that, but you sliced his ear.”
She further testified that, in the same conversation, Sousa stated, “If it had not been for the one-way street, I would have gotten away.”
Sousa v. United States, 400 A.2d 1036, 1038-40 (D.C.1979) (footnote omitted) (emphasis added).7
After the jury found appellants guilty of first-degree murder, Chief Judge Moultrie imposed upon each appellant a sentence of 20 years to life imprisonment.8
The Direct Appeal
This court affirmed the convictions, addressing “only those [contentions] pertaining to joinder and severance, and the sufficiency of the evidence as to appellant Richter.” Sousa, supra, 400 A.2d at 1038.9 Appellants’ other arguments on appeal were rejected without discussion in a footnote noting that “[w]e have examined the multitude of other contentions made by appellants and find them to be without merit.” Id. at 1038 n. 1.
Post-appeal Motions
Subsequent to the affirmance of their convictions on direct appeal, appellants Eas-tridge and Diamen filed various motions collaterally attacking their convictions. In 1981, five years after his conviction, Eastridge filed a motion for a new trial alleging that ineffective assistance of trial counsel and newly-discovered evidence warranted a new trial. The new evidence consisted of an affidavit from a defense investigator who indicated that codefendant Jones had admitted his presence at the murder and claimed that Eastridge was not present. The trial court summarily denied the motion finding that such vague and eonclusory allegations did not merit a hearing. This court affirmed the denial, quoting the trial court that “[n]o-where is there any firm indication — outside the mere assertion in the affidavit — -that Jones would in fact recant the testimony he gave at the murder trial asserting his innocence and risk possible prosecution for perjury by doing so.” Eastridge v. United States, No. 82-387, 6 (D.C. June 16, 1983). The court found it improbable that Jones’ testimony at a new trial would produce a different result, because at the trial “Jones testified to his non-involvement in the murder; by convicting him, the jury declared that it found his testimony incredible. Appellant *520[Eastridge] presents no convincing indication that Jones’ credibility will improve.” Id.
In 1983, Diamen filed a motion to vacate judgment and sentence pursuant to D.C.Code § 23-110, raising, among other issues, ineffective assistance of counsel and newly-discovered evidence. The trial court denied the motion without a hearing and this court affirmed the denial, concluding that his claims were meritless or, in the case of the proffered new evidence, because it was presented after the two-year period provided by Super. Ct.Crim. R. 33 for new trial motions based on new evidence. Diamen v. United States, No. 84-1358, 2-3 (D.C. July 31, 1985).
Until the current collateral attack that is the subject of this appeal, Sousa had not collaterally attacked his conviction.
The Current § 23-110 Motion
The subject of this appeal is a joint motion filed in April 1995 by Eastridge, Diamen and Sousa to vacate their convictions pursuant to D.C.Code § 23-110, which included a request for an evidentiary hearing. As in their direct appeals, they argued that the trial court’s rule prohibiting them from eliciting from any witness or eodefendant any testimony that might inculpate or exculpate a codefendant, without the permission of all codefendants, violated appellants’ Fifth and Sixth Amendment rights. In addition, they argued that the newly-discovered evidence presented in their motion not only underscores the unconstitutionality and prejudice resulting from the trial court’s limitations on examination, warranting vacation of their conviction under § 23-110, but that relief also was warranted under § 23-110 based on the “actual innocence” standard set out in Herrera, supra.10 Appellants also filed a motion for disclosure of grand jury testimony and other discovery. Both motions were summarily denied in a written order.
Because of its importance" to appellants’ arguments on appeal, the evidence presented to the trial court in support of their § 23-110 motion is set forth in detail. The new evidence came to light as a result of a six-year investigation begun in 1987 by Centurion Ministries.11 As a result of the Ministries’ investigation, appellants presented affidavits with exculpatory information not previously presented to the trial court: 1) an affidavit signed in 1994 by Stephen Jones, a codefend-ant in the murder trial; 2) affidavits by Michael Grayson, Raymond Thomas Lurz and Richard Richter, three other members of the Pagans motorcycle club involved in the confrontation with the murder victim; 3) an affidavit by John Gianaris, a heretofore unknown eyewitness to the murder, who was not associated with the Pagans; and 4) eleven affidavits from individuals who attacked the testimony and reputation for truthfulness and character of Dorothy Willetts, a key government witness at the murder trial.
In his affidavit, Jones states that appellants “did not play any role in the murder of Johnnie Battle.” Jones recants the portion of his trial testimony where he testified that he chased Battle but did not catch him and that he was neither involved in the killing nor did he see who killed Battle. Jones now contends that he was present during the murder as were fellow Pagan members Charles Jennings, John Woods, and one other individual whom he will not name at the present time. Jones states that none of the appellants was present.
Jones claims in his affidavit that he chased Battle through a small park across from the Godfather Restaurant up Emery Street and *521into an alley. They exited the alley and crossed Ellicott Street where Jones tackled Battle in a parking lot. Jones started punching Battle and was soon joined by Jennings, who began to stab Battle with a buck knife, and Woods, who held Battle down; the unidentified individual, stabbed Battle with a bowie knife. Jones claims that he backed away once the stabbing began, but not quickly enough to avoid a cut on his right hand. After the stabbing, the four ran down the alley between Ellicott and Emery Streets. Jones ran up Emery away from Wisconsin Avenue and saw appellants’ car coming up Emery Street. This was the first time he had seen appellants since he began chasing Battle. He got into the car and told appellants to “get the hell out of here,” but did not mention the murder. Jones stated that Eas-tridge gave him a newspaper for his bloody hand. Sousa, the driver, continued up Emery Street, turned left onto 41st Street and another left turn onto Fessenden Street, which led back to Wisconsin Avenue. They turned right onto Wisconsin Avenue where they were soon pulled over by the police.
Jones contends in his affidavit that he did not come forward with this information earlier and instead committed perjury at trial because he, like Jennings, Woods, the unidentified individual and appellants were members of the Pagan motorcycle club and, as such, abide by the Pagan Code. Part of the code dealt with the police and, according to Jones, provided that .
no Pagan was ever to turn another Pagan in to the police for any reason, even if another Pagan had been arrested falsely for the same crime. The reason for this rule was that the Pagans felt persecuted by the police and believed that, if one Pagan were falsely arrested, and another Pagan was turned in as the true perpetrator, the police and the government would simply try to prosecute both of them.
According to Jones, therefore, under the Pagan Code, he could not implicate Jennings, Woods and the unnamed individual, even if it meant implicating appellants, because they were all Pagans. In addition, Jones claims that he was better friends with Jennings, Woods and the unnamed person than with Eastridge, Sousa and Diamen, whom he hardly knew. Furthermore, he was afraid of facing perjury charges and thought that he could be recharged and face a new trial for the murder.
John Gianaris, who states that he was hiding in the alley during the murder, corroborates Jones’ affidavit with respect to the number .of assailants. Gianaris states in his affidavit12 that on the night of the murder he was behind a chain link fence that bordered the alley and Ellicott Street. From behind the fence he saw a black man being chased by “[no] more than four” white men. After the white men attacked the black man in the parking lot, the attackers ran away. Additionally, at no point during the attack did Gianaris see a car pull up along Ellicott Street. Gianaris is not connected to the Pagans or to the appellants.
Michael Grayson, a member of the Pagans in the 1970s, states in his 1992 affidavit that in 1979, three years after appellants’ trial, Woods (one of the Pagans implicated in the murder by Jones’ affidavit) told him that appellants had nothing to do with the murder and that Battle was instead killed by Woods and three other Pagan members: Charles Jennings, Chesley Barber and Steven Jones. Woods explained that Jones had chased and tackled Battle, but had told a different story at trial. Another former Pagan member, Raymond Thomas Lurz, states in his 1993 affidavit that in 1977, one year after the trial, Woods told him that Eastridge, Sousa and Diamen were wrongfully convicted. One year later, in 1978, Woods again indicated to Lurz that appellants did not commit the murder and that he (Woods) along with Jennings, Jones and one other person chased and murdered Battle. A third former Pagan member and codefendant in the 1976 trial, Richard Richter, whose convictions were reversed on direct appeal, states in his 1996 affidavit that before and after the trial he learned that appellants were not involved in the murder *522and that Jones, Jennings, Woods and a fourth man participated in the murder. He also had conversations with Woods and Jennings in which they expressed remorse for appellants’ wrongful convictions. According to Richter, in 1974 Jennings told him that he, Jennings, had thrown his buck knife down a sewer and fled the scene.
Appellants also offered ten other affidavits taken by Centurion Ministries from individuals who refute the testimony of Dorothy Wil-letts, a key government witness who testified that Eastridge and Sousa made incriminating statements to her.13 The affidavits also attack Willetts’ reputation for truthfulness and her character.14
The trial court denied appellants’ motion for a new trial on two grounds: (1) that Superior Court Criminal Rule 33’s two-year time limitation on motions for new trial based on newly-discovered evidence precluded relief,15 and (2) that appellants could not prevail under D.C.Code § 23-110.16 The trial court ruled that it need not hold an evidentiary hearing because appellants had failed to state a factual claim requiring a hearing under § 23-110.
Even assuming the motion was not time-barred, the trial court concluded that appellants’ § 23-110 motion- should be denied. Specifically, the trial court found that Jones’ affidavit was not a recent recantation of his trial testimony and that this court had previously “considered this recantation, albeit not in affidavit form, and rejected its legal significance.” The court relied on the trial court’s findings in 1983, when it denied Eastridge’s first § 23-110 motion, that Jones’ recantation was incredible, and on this court’s affirmance of that finding. Furthermore, the trial court noted that Jones’ membership in the Pagans evidenced his potential bias and further discredited his affidavit because the only Pagan members Jones expressly implicates in the murder, Woods and Jennings, are deceased. The trial court questioned the credibility of the affidavits of Grayson, Lurz and Richter in part because they are all former Pagans. Even if appellants could meet the credibility threshold, the trial court indicated, the information in the affidavits was inadmissible hearsay. The trial court found Gianaris’s affidavit incredible because Gianaris did not come forward sooner and his statements were too vague. The trial court considered that the affidavits offered to impeach Wil-*523letts’s trial testimony were weak and, the trial court noted, the affiants were available prior to trial.
Furthermore, the trial court ruled that appellants’ new evidence was not sufficient to warrant relief under § 23-110 because it did not convince the trial court of appellants’ actual innocence. Appellants alleged that the blood evidence presented at trial did not link them to the murder because none of them had any of Battle’s blood on them. The government presented evidence that Sousa and Diamen had a small amount of unidentified blood on their clothing and that there were bloody newspapers in the car. The trial court reasoned that the absence of blood on their persons traceable to the murder victim was not conclusive evidence of actual innocence and did not warrant a new trial. In evaluating appellants’ claims of actual innocence, the trial court did not take into account the new affidavits because, according to the trial court, the evidence did not meet the rigorous standard of actual innocence set forth by the Supreme Court in Herrera.
The trial court entertained Sousa’s claim of ineffective assistance of trial counsel acknowledging that it was his first § 23-110 motion. The court concluded that appellants’ 17 claims failed both prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in that they failed to show that their respective counsel were deficient and failed to show how any deficient performance prejudiced their cases.
The trial court refused the request for an evidentiary hearing on appellants’ § 23-110 motion on the grounds that appellants’ proffered affidavits were “incredible,” “vague” and “conclusory .” Even if the affidavits were believed, the trial court concluded, they would not entitle appellants to a new trial or raise factual questions requiring a hearing. See Ready v. United States, 620 A.2d 233, 234 (D.C.1993).
III.
On appeal, Diamen, Sousa and Eastridge contend that the trial court erred in denying their § 23-110 motion, arguing that they are entitled to relief pursuant to § 23-110(a)(l) because their sentences were imposed in violation of the Constitution, and pursuant to § 23-110(a)(4) because their sentences are otherwise open to collateral attack. In addition, appellants contend that the trial court should have held a hearing on their § 23-110 motion and granted their request for discovery.
“Special Circumstances” Warranting Review
Before we can address appellants’ contentions on the merits, we must determine first whether this court’s previous decision in the direct appeal precludes further reconsideration. In Sousa, supra, this court already rejected the appellants’ core constitutional claim in their collateral attack, their challenge to the court’s restriction on cross-examination, in a one-sentence footnote, stating that “[w]e have examined the multitude of other contentions made by appellants and find them to be without merit.” 400 A.2d at 1038 n. 1. The government argues that we are precluded from considering the current appeal because “where an appellate court has disposed of an issue on appeal, it will not be considered afresh on a collateral attack in a trial court of the same judicial system, absent special circumstances.” Doepel v. United States, 510 A.2d 1044, 1045-446 (D.C.1986). The government argues that affirmance of the direct appeal in 1979 forecloses further review by this court and that any further review would be in derogation of M.A.P., supra.18
*524Appellants concede that the unconstitutionality of the trial court’s restriction on cross-examination was raised on direct appeal, but argue that this court may consider their claim because this case presents the kind of “special circumstances” reserved under Doepel, supra. According to appellants, the special circumstances warranting reconsideration in this case include; (1) the constitutional importance of the issue, (2) the significance to the constitutional issue of new evidence not considered by the trial court or by this court on direct appeal, (3) the claimed actual innocence of the appellants, and (4) that the issue was not expressly addressed by this court in the opinion issued in the direct appeal.
Analysis of § 23-110 must begin with the statutory language, which expressly provides that a motion “may be made at any time.” D.C.Code § 23-110(b). We also must recognize that the equitable nature of habeas corpus “preclude[s] application of strict rules of res judicata.” Schlup, supra at 319, 115 S.Ct. 851.19 Thus, in Doepel, where we considered an appeal from an order denying a § 23-110 motion which raised issues that already had been presented and decided on direct appeal, we declined to revisit the issue absent “special circumstances.” Doepel, supra, 510 A.2d at 1045-46. In denying the appeal, we stated that no further review was necessary, expressing confidence that when the prior appellate opinion concluded that the evidence was sufficient to support the first-degree murder conviction, we had of necessity fully considered and rejected the precise issue raised in the subsequent new trial motion, whether there was sufficient evidence of the required elements of deliberation and premeditation in light of Doepel’s intoxication and of forcible intercourse. See id. at 1047-48. Although Doepel did not define the “special circumstances” that would permit renewed appellate review, in Peoples, supra note 18, we indicated that “special circumstances might consist of an intervening change in the relevant law.” Id. at 702 n. 5. (citing Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)).
The proposition in Doepel and Peoples that a collateral attack may lie in certain limited circumstances even with respect to a claim already decided on direct appeal finds support in federal case law construing 28 U.S.C. § 2255.20 In denying a federal prisoner’s habeas petition under § 2255, the court in United States v. Palumbo, 608 F.2d 529, 533 (3d Cir.1979), held that
in the absence of newly discovered evidence that could not reasonably have been presented at the original trial, a change in applicable law, incompetent prior representation by counsel, or other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims, a § 2255 petitioner may not relitigate issues that were adjudicated at his original trial and on direct appeal.
(internal footnotes omitted); see also Davis, supra, 417 U.S. at 342, 94 S.Ct. 2298 (intervening change in the law); English v. United States, 998 F.2d 609, 613 (8th Cir.1993) (intervening change in the law or newly-discovered evidence); Morgan v. United States, 438 F.2d 291, 292-93 (5th Cir.1971) (newly-discovered evidence).
Also instructive is case law interpreting the availability of federal habeas relief from state convictions. As the Supreme Court summarized in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992):
Unless a habeas petitioner shows cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a court may not reach the merits of: (a) successive claims that raise grounds identical to grounds heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); (b) new *525claims, not previously raised, which constitute an abuse of the writ, McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims, Murray v. Carrier, 477 U.S. 478 [106 S.Ct. 2639, 91 L.Ed.2d 397] (1986). These cases are premised on our concerns for the finality of state judgments of conviction and the “significant costs of federal habeas review.” McCleskey, supra, at 490-491, 111 S.Ct. 1454; see, e.g., Engle v. Isaac, 456 U.S. 107, 126-128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
Id. at 338, 112 S.Ct. 2514. The limitation on successive, abusive or defaulted claims is subject, however, to a narrow “fundamental miscarriage of justice” exception that allows consideration of otherwise barred constitutional claims if they are coupled with a claim of actual innocence. See id. at 339, 112 S.Ct. 2514; Kuhlmann, supra, 477 U.S. at 452, 106 S.Ct. 2616; Murray, supra, 477 U.S. at 496, 106 S.Ct. 2639; Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).21
In Sawyer, the Court established the evi-dentiary standard required to meet this exception as requiring the petitioner to show “by clear and convincing evidence that, but for constitutional error, no reasonable juror” would have convicted the defendant, or, as in that case, sentenced the petitioner to death. See 505 U.S. at 336, 112 S.Ct. 2514. More recently, in Schlup, supra, recognizing that habeas corpus is an equitable inquiry that provides a remedy when required by the “ends of justice,” see 513 U.S. at 319, 115 S.Ct. 851 (quoting Sanders v. United States, 373 U.S. 1, 15-17, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)), the Court relaxed the Sawyer test for avoiding a procedural bar to a previously considered constitutional claim when it is augmented by a claim of actual innocence.22 Balancing the state’s interest in *526finality and judicial economy against the individual’s interest in relitigating constitutional claims previously held meritless, the Court established that in order to avoid a procedural bar by coming within the “fundamental miscarriage of justice” exception, a petitioner is required to show that “a constitutional violation probably resulted in the conviction of one who is actually innocent.” Id. at 327, 115 S.Ct. 851 (quoting Carrier, supra, 477 U.S. at 496, 106 S.Ct. 2639). The “requisite probability” is met by a showing that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, supra, 513 U.S. at 327, 115 S.Ct. 851. This is a stronger showing than required to meet the prejudice prong under Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring a reasonable probability), but less than the “clear and convincing” standard that had originally been required by the Court in Sawyer, supra. See Schlup, supra, 513 U.S. at 327, 115 S.Ct. 851. The standard is intended to be high enough to “ensure[] that petitioner’s claim is truly ‘extraordinary,’ while still providing petitioner a meaningful avenue by which to avoid a manifest injustice.” Id. (quoting McCleskey, supra, 499 U.S. at 494, 111 S.Ct. 1454).23
We have the same interest as the federal courts in the finality of judgments and the conservation of judicial resources. See Doepel, supra, 510 A.2d at 1045; Head v. United States, 489 A.2d 450, 451 (D.C.1985) (requiring a showing of cause and prejudice before a collateral attack will be considered where defendant has failed to raise available challenge on direct appeal). We do not, however, within a unitary court system, have the federalism concerns that cabin the scope of the federal courts’ consideration of state claims. *527We also do not, unlike the federal courts, have legislative restrictions on our authority to hear or rehear habeas petitions. Compare 28 U.S.C. §§ 2244(b) and 2255 (1998) (imposing limitations on consideration of initial, second and successive habeas petitions, see supra note 23), with D.C.Code § 23-110(e) (“The court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”). Although we are not confronted with the “quintessential miscarriage of justice,” execution of one who is innocent, see Schlup, supra, 513 U.S. at 324, 115 S.Ct. 851, appellants come before us convicted of the most serious offense in our jurisdiction, first-degree murder, and in a particularly heinous racial context. Cf. Burks, supra, 55 F.3d at 717, (applying Schlup standard to non-eapital case); Cornell v. Nix, 119 F.3d 1329, 1334 (8th Cir.1997) (applying Herrera standard to non-capital case). Finally, in light of the limitation on federal review of judgments of conviction of prisoners sentenced by Superior Court unless § 23-110 relief is deemed to be “inadequate or ineffective,” see D.C.Code § 23-110(g) (1996),24 we should construe the scope of collateral relief in our courts to be “adequate and effective,” that is, at a minimum coextensive with the right to habeas relief in the federal courts. See Swain v. Pressley, 430 U.S. 372, 384, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977); Garris v. Lindsay, 254 U.S.App. D.C. 13, 18, 794 F.2d 722, 727 (1986); Perkins, supra note 24, 881 F.Supp. at 59.
Recognizing the concerns that underlie restrictions on collateral attacks, yet cognizant also of the need to maintain § 23-110 relief available as a procedural vehicle for the very purpose of “enabl[ing] convicted prisoners to escape the shackles of res judicata when constitutional rights have been violated,” Kirk, supra, 510 A.2d at 503, I would hold that the standard enunciated by the Supreme Court in Schlup constitutes “special circumstances” under Doepel sufficient to permit a collateral attack under our law even if the collateral attack is premised on an issue previously raised before — and decided by — this court.25 The record before us supports, as a threshold matter, that appellants’ case presents a prima facie case of “special circumstances” as thus defined; a claim of serious constitutional error, supplemented by a compelling claim of actual innocence. Both claims are supported by the presentation of new exculpatory evidence which, if believed, shows it is at least “more likely than not that no reasonable juror would have convicted” Diamen, Sousa and Eastridge of first-degree murder. See Schlup, supra, 513 U.S. at 327, 115 S.Ct. 851.26 Thus, if appellants meet their burden, they would come within the narrow “special circumstances” window recognized in Doepel so that the constitutional claims in their current § 23-110 motion should be addressed even though they already were considered and decided on direct appeal. The issue is not to be decided by us at this juncture; it is a matter to be addressed by the trial court in the first instance after an evidentiary hearing which, for the reasons described in the following section, is necessary for a proper evaluation of the probative value of the newly proffered evidence, in the context of the government’s overall case at trial.
Availability of § 23-110 Relief
The Schlup standard adopted herein by definition subsumes the standard that must be met under § 23-110 where the collateral attack, as here, is premised on a “violation of the Constitution.” D.C.Code § 23-110(a)(1); see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding that constitutional violation is subject to test of constitutional harmlessness, ie., whether violation is harmless beyond a reasonable doubt); Artis v. United States, 505 A.2d 52, 55 (D.C.1986) (“Curtailment of constitutionally-protected cross-examination constitutes harmless constitutional error where it is *528clear beyond a reasonable doubt (1) that the defendant would have been convicted without the witness’ testimony or (2) that the restricted line of inquiry would have weakened the impact of the witness’ testimony.”) (quoting Springer v. United States, 388 A.2d 846, 856 (D.C.1978)). Therefore, if appellants come within the higher standard for the “miscarriage of justice” exception, they are a fortiori entitled to a new trial under § 23-110(a)(1).
The substance of appellants’ constitutional claims is that the trial court’s restriction on cross-examination violated their Fifth Amendment due process right to introduce evidence of their innocence by implicating third parties, namely their codefendants, infringed their Sixth Amendment right to confront and cross-examine witnesses, and breached their right to effective assistance of counsel. The trial transcript is full of examples demonstrating the severe impact of the trial court’s ruling27 Indeed, in denying appellant Eastridge’s first § 23-110 motion alleging ineffective assistance of counsel, the trial court concluded that counsel was not ineffective due in part to “the court’s severe restriction regarding cross-examination at the trial.” See Strickland, supra, 466 U.S. at 686, 104 S.Ct. 2052.
A defendant in a criminal trial has a constitutional right to present relevant evidence that another person was the perpetrator of the offense. See Gethers v. United States, 684 A.2d 1266, 1271 (D.C.1996); Winfield v. United States, 676 A.2d 1, 4-5 (D.C.1996) (en banc); Johnson v. United States, 552 A.2d 513, 516 (D.C.1989). With respect to the claimed violation of the right to confrontation, the trial court’s limitation on cross-examination, the Court has held that where a line of questioning relating to a witness’ bias has been completely foreclosed, the constitutional right to confront witnesses is violated because there has not been a “meaningful” opportunity to cross-examine a witness. See Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Stack v. United States, 519 A.2d 147, 151 (D.C.1986); Lawrence v. United States, 482 A.2d 374, 377 (D.C.1984). In Jenkins v. United States, 617 A.2d 529 (D.C.1992), we concluded that even partly foreclosing inquiry into the nature of a witness’ bias rose to a constitutional violation. See id. at 533. Here, the complete prohibition during trial on any un-consented questioning that might incriminate a codefendant hampered cross-examination into bias and undermined appellants’ ability to present a defense to a degree that clearly implicates the Fifth and Sixth Amendments.
Against this background, the newly-discovered evidence — which for purposes of this discussion is assumed to be credible— takes on added significance because it relates to and aids in the evaluation of appellants’ constitutional claim. First, it confirms that the trial court’s restriction on cross-examination was of a constitutional dimension. Jones, a codefendant in the murder trial, now recants the part of his trial testimony where he stated he chased Battle but did not catch him. In a sworn affidavit, Jones admits to chasing, catching and beating Battle and being at the scene when Jennings, Woods and another individual started stabbing Battle. Jones now states that appellants were not present at the scene and that they did not have any knowledge of the stabbing. Under the trial court’s ruling restricting cross-examination, however, Jones’ new statements could not have been elicited on cross-examination because they would have inculpated Jones. Given the opportunity, appellants’ trial counsel could have cross-examined Jones on any number of fronts; his and others’ involvement in the chase, the reason why he had blood on his person from the murder victim (while appellants did not) and how he came to be in appellants’ car. In addition, absent the restriction on cross-*529examination, key government witnesses could have been more fully cross-examined about their knowledge of the stabbing.28 The restriction on cross-examination inhibited appellants from developing a defense by presenting evidence that someone else committed the murder, a theory that Jones’ affidavit supports.29 See Winfield, supra, 676 A.2d at 4-5.
The affidavits of Richter, Lurz and Gray-son contain information that arose after the trial which, if believed, corroborates Jones’ affidavit and similarly exculpates appellants. The affidavit of Gianaris corroborates Richter’s and Jones’ affidavits and adds support to appellants’ theory that they were not in the group of individuals chasing Battle. The affidavits attacking the credibility of a key government witness undermine the strength of the government’s case at trial. Thus, appellants’ substantial constitutional claim, as supported by the new evidence, is appropriate for relief under § 23-110(a)(1).30
IV.
Hearing on Remand
On remand, at a hearing on the proffered evidence the trial court is to be focused on the actual innocence of the appellants in order to determine whether the proffer made in the form of affidavits brings them within the gateway “miscarriage of justice” exception. “In assessing the adequacy of the petitioner’s showing, therefore, the [trial] court is not bound by the rules of admissibility that would govern at trial.” Schlup, supra, 513 U.S. at 327, 115 S.Ct. 851.31 Relevant evidence that was excluded or unavailable at trial should be considered.32 Id. The appellants’ burden on remand is not to persuade the trial court that the available evidence, if credited, could raise a reasonable doubt in the mind of a reasonable juror, but that a reasonable juror, faced with the newly-available evidence, probably would not have found *530them guilty beyond a reasonable doubt. See id. at 329, 115 S.Ct. 851. In making that determination, the trial court may need to make some preliminary credibility determinations, see id. at 330, 115 S.Ct. 851, and “assess the probative force of the newly-presented evidence in connection with the evidence of guilt addressed at trial.” Id. at 332, 115 S.Ct. 851; see supra note 7.
I turn, therefore, to address the trial court’s decision to deny the § 23-110 motion without holding an evidentiary hearing. Section 23—110(c) mandates a hearing “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” We have previously stated that “[t]here is a presumption that a trial court presented with a § 23-110 motion should conduct a hearing. ‘Because § 23-110 is virtually a remedy of last resort, any question whether a hearing is appropriate should be resolved in the affirmative.’ ” Gaston v. United States, 535 A.2d 893, 900-01 (D.C.1988) (quoting Miller v. United States, 479 A.2d 862, 869 (D.C.1984)). This presumption can be overcome only when the trial court concludes that “ ‘under no circumstances could the petitioner establish facts warranting relief.’ ” Ramsey v. United States, 569 A.2d 142, 147 (D.C.1990) (quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)). There are three categories of allegations that do not warrant a hearing: “(1) vague and conclusory allegations, (2) palpably incredible claims, and (3) assertions that would not merit relief even if true.” Ramsey, supra, 569 A.2d 142, 147; see Pettaway v. United States, 390 A.2d 981, 984 (D.C.1978).
The trial court’s denial of a hearing was based on its belief that appellants’ motion was
exclusively based on the incredible affidavit of Jones, the vague observations of Gianaris, and the conclusory affidavits of other persons whose testimony, even if accepted, would only impeach the Government’s witness, Willetts. Additionally, the constitutional claims which Defendants present are wholly without merit and do not state a factual basis which would necessitate an evidentiary hearing.
In this context, appellants’ constitutional claims cannot be said to be “wholly without merit.” To the contrary, their claims of constitutional deprivation would appear to be meritorious unless decided to be harmless beyond a reasonable doubt — an impossible conclusion if appellants’ new evidence is credible.
The trial court also erred in determining that the affidavits were incredible, vague and conclusory without first holding an evidentia-ry hearing. Chief Judge Moultrie presided over the trial in 1976 and entertained Eas-tridge’s and Diamen’s earlier collateral attacks. The trial judge ruling on the current § 23-110 motion, however, did not have the benefit of hearing the testimony at trial and weighing the credibility of the various witnesses, particularly Jones. See Gaston, supra, 535 A.2d at 900 (holding that the lack of a § 23-110 hearing was “especially significant” when trial judge reviewing the petition was not the presiding judge at the sentencing). In its order denying a hearing, the trial court relied to a large extent on Chief Judge Moultrie’s previous rulings on Eas-tridge’s and Diamen’s § 23-110 motions and this court’s affirmance of those rulings. But see Pettaway, supra, 390 A.2d at 986 (noting that strict principles of res judicata do not apply in proceedings under § 23-110(e)). For example, the trial court’s determination that Jones’ recantation contained in his affidavit was incredible was based in part on Chief Judge Moultrie’s earlier determination in Eastridge’s first collateral attack and this court’s subsequent affirmance. Although the substance of Jones’ recantation is substantially the same, the form of the recantation is different in a significant way. Chief Judge Moultrie had discounted the information presented in the earlier collateral attack because it was in the form of hearsay statements recounted in the affidavit of a defense investigator. In contrasts the information now being presented to the court is in the form of an affidavit signed by Jones himself. The trial court’s concerns about the veracity of Jones’ hearsay statements in the earlier sub*531mission33 are mitigated by Jones’ apparent willingness at this time to risk prosecution for perjury committed at trial. Presented with these different circumstances, the trial court’s reliance on former determinations of credibility was unfounded, especially when it has never had an opportunity to hear Jones’ testimony. The trial court also discredited Jones’ affidavit because his affiliation with the Pagans was evidence of bias and because Jones implicated individuals who are now deceased. While these are factors to be considered in evaluating Jones’ credibility, cf. Schlup, supra, 513 U.S. at 308 n. 18, 115 S.Ct. 851, they do not establish that Jones’ recantation is so palpably incredible that it does not warrant the hearing presumptively required by statute. See Wright v. United States, 608 A.2d 763, 766 (D.C.1992) (remanding for a hearing because claim was not palpably incredible).
The trial court dismissed the Gianaris affidavit as too vague. Commenting on the substance of the affidavit, the trial court stated that Gianaris’ statement, “I do not believe I saw more than four white men [attack Battle]” was “vague and not convincing.” The trial court concluded that Gianaris’ statement was too indefinite to overcome the jury verdict, and to meet the “extraordinary high standard of actual innocence,” under Herrera. First, as discussed earlier, see supra note 21, the Herrera standard for a freestanding claim of actual innocence is higher than is required where, as here, a claim of actual innocence supplements a claimed constitutional violation. See Schlup, supra, 513 U.S. at 316, 115 S.Ct. 851. Second, while Gianaris’ statement does not identify or pinpoint the exact number of individuals involved in the murder, when viewed in the context of the other affidavits stating that only four individuals — Woods, Jones, Jennings and another unidentified person — attacked Battle, Gianaris’ affidavit does support appellants’ failed attempt at trial to show that they were not among the chasers or attackers.34 In his affidavit Gianaris also expressly states that he did not see a car arrive during or after the murder. Gianaris’ affidavit is neither so vague nor so concluso-ry on its face as to make an evidentiary hearing unnecessary. Cf. Pettaway, supra, 390 A.2d at 985 (statements too vague and conclusory to warrant hearing). The trial court also questioned Gianaris’ credibility because he waited almost twenty years before disclosing what he saw on the night of the murder. Determinations of an affiant’s credibility, motive or bias can only be resolved after the benefit of live testimony. See Rice v. United States, 580 A.2d 119, 123 & n. 7 (D.C.1990) (finding no grounds for rejecting the credibility of witnesses based solely on their written statements). There is no reason evident on the record before us for Gia-naris to fabricate the information he provides in his affidavit. On the other hand, it is easy to conceive of reasons why an eyewitness bystander would be reluctant to come forward in a racially-tainted murder involving members of a motorcycle gang. Gianaris’ reasons for waiting twenty years to disclose what he knew about the murder of Johnnie Battle are best aired at an evidentiary hearing.
The trial court did not specifically address the substance of the affidavits signed by Richter, Lurz and Grayson when it denied appellants’ request for an evidentiary hearing. Rather, the trial court rejected their affidavits as biased because of the affiants’ membership in the Pagans and because the information contained in the affidavits was hearsay. As already discussed, whether the affidavits would be admissible at trial is not dispositive for purposes of the gateway inquiry into actual innocence.35 While affiants’ *532membership in the Pagans raises concern regarding their bias, this is not by itself, and without a hearing, sufficient reason to reject the affidavits as “palpably incredible” on their face. The credibility of their statements — including the fact that they exculpate appellants at the expense of two other former Pagans who áre now deceased — must be tested at an evidentiary hearing.
y.
Appellants requested access to grand jury testimony and other discovery in an effort to find out more information about the events surrounding the murder.36 The trial court denied appellants’ request because the request was not narrowly tailored and appellants’ need for the grand jury testimony did not outweigh the need for its secrecy. Appellants contend, based on the new information brought to light by Centurion Ministries, that the government has information that will help them prove their innocence at a § 23-110 hearing. The government denies that it has any exculpatory information and argues that appellants’ request is not sufficiently narrowly tailored.
Generally, Super. Ct.Crim. R. 6(e)(2) prohibits disclosure of “matters occurring before a grand jury.” Rule 6(e)(3)(C)(i), however, creates an exception to the general rule by allowing the trial court to order disclosure of grand jury testimony when there has been a “strong showing of particularized need.” Law v. United States, 488 A.2d 914, 916 (D.C.1985) (quoting United States v. Sells Eng’g, Inc., 463 U.S. 418, 434, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983)). In addition, the party moving for disclosure must show that “(1) the material he seeks is needed to avoid a possible injustice in another judicial proceeding; (2) the need for disclosure is greater than the need for continued secrecy; and (3) the request is structured to cover only needed materials.” Id. Whether to order disclosure is within the trial court’s discretion. See id.
Appellants argue that the policies underlying the secrecy of grand jury testimony are no longer applicable in this case. These policies have been articulated as follows:
(1) [tjo prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberation, and to prevent persons subject to indictments or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.
Davis v. United States, 641 A.2d 484, 488 (D.C.1994) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) (in turn quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954))). Against these policies, the need for secrecy is not compelling in this case, where more than twenty years have lapsed since the deliberations of the grand jury, certain individuals have consented to the release of their grand jury testimony, and other witnesses have died. Further, to the extent that the requested grand jury testimony assists sufficiently in establishing appellants’ innocence to reopen the case, it is necessary in order to avoid a possible injustice.
*533While decisions to deny post-trial discovery are within the trial court’s discretion, we have previously stated that “the trial court must not act ‘arbitrarily or willfully but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.’ ” Gibson v. United States, 566 A.2d 473, 478 (D.C.1989) (quoting Johnson v. United States, 398 A.2d 354, 361 (D.C.1979)). This court, when reviewing a trial court’s decision denying access to post-trial discovery, “need not be reticent to declare that a trial court’s determination constitutes an erroneous exercise of discretion.”37 Id. at 479 (quoting Johnson, supra, 398 A.2d at 366 n. 9). Considering the new evidence in the context of the appellants’ claims of actual innocence and their constitutional claims, it is in the interest of justice that appellants’ reasonable discovery requests be allowed so that the trial court may have the benefit of all relevant evidence when considering appellants’ § 23-110 motion on remand. If, after taking all the available evidence into account, the trial court determines that appellants’ motion brings them within the “special circumstances” exception, as established here, their convictions must be vacated because they are entitled to a new trial.
. I join with the majority in sadly noting Mr. Mathew's passing while these appeals were pending. I also recognize his and his firm’s commitment to these appellants, as well as that of Centurion Ministries.
. With respect to ineffective assistance of counsel claims, which may be filed under both Rule 33 and § 23-110, we have maintained a strict separation between the requirements applicable to each, holding that the procedural limitation on a successive post-conviction motion under § 23-110 is not satisfied by a motion filed under Rule 33. See Junior v. United States, 634 A.2d 411, 417 (D.C.1993) ("Our caselaw marks the distinction between Rule 33 motions and § 23-110 motions on the basis of whether the defendant has been sentenced.”). Just as we have refused to allow a motion filed under Rule 33 to satisfy § 23-110's procedural limitations, so we should refuse to import Rule 33’s time limitation to § 23-110.
. The majority's mistaken characterization of appellants’ motions carries over to its citation of inapposite cases. In United States v. DeCarlo, 848 F.Supp. 354 (E.D.N.Y.1994), relied upon by the majority, see ante at 507, the district court recognized that there is no time limitation applicable to motions brought under 28 U.S.C. § 2255 (the federal counterpart to D.C.Code § 23-110). See id. at 356. However, as the motion for new trial in that case was based solely on new evidence, and did not raise any constitutional or legal claim, it was properly considered a Rule 33 motion subject to the two-year limitation. See id. That the motion was solely factually-based, and raised neither jurisdictional nor constitutional claims nor interpretation of the laws of the United States, was emphasized by the court’s extensive quote from Guinan v. United States, 6 F.3d 468 (7th Cir.1993):
In \Herrera v. Collins ] the Court held that a refusal to grant a new trial on the basis of newly discovered evidence is not actionable in habeas corpus. Section 2255 is a substitute for habeas corpus and like it is confined to correcting errors that vitiate the sentencing court’s jurisdiction or are otherwise of constitutional magnitude.... A defendant who seeks to have his conviction set aside on the ground of newly discovered evidence is claiming that the conviction was "erroneous” in the la}'man’s sense — it reached the wrong result — but not that the trial judge committed reversible error. A judge can hardly be faulted for having failed to give due weight to evidence that had not been known to exist at the time the defendant was convicted and sentenced. The purpose of granting a new trial on the basis of newly discovered evidence is not to correct a legal error, but to rectify an injustice, and the office of section 2255 is the former, not the latter_The conviction of an innocent person is an injustice, but it is only when such a conviction results from a legal error that the courts speak of a "miscarriage of justice” that warrants a new trial.... Even then, unless the *516error is of constitutional magnitude, a federal court does not have the power to correct it in a proceeding brought under the habeas corpus statute (section 2254) or, we add today, its federal prisoner substitute (section 2255).
United States v. DeCarlo, supra, 848 F.Supp. at 357 (quoting Guinan, supra, 6 F.3d at 470-71).
. The majority criticizes my use of the quotation from Kirk because that case involved a supervening change in the law between this court’s consideration of the first and second appeals. That is true here as well because the Supreme Court’s opinion in Schlup established the standard that must be met before a court may re consider an otherwise procedurally barred claim. See 513 U.S. at 327-28, 115 S.Ct. 851. Schlup, decided in 1995, came not only after M.A.P., but after the direct appeals were decided by this court and between the time that this court affirmed the denial of Eastridge and Diamen’s first § 23-110 motions in the mid 1980s and the denial of the § 23-110 motions presently before us on appeal. Therefore, this case comes within the exception we have already recognized in Kirk with respect to supervening changes in the law.
. Section 23-110(g) provides:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 23-110] shall not be entertained by the Superior Court or by any Federal or State court if it appears that the applicant has failed to make a motion for relief under this section or that the Superi- or Court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
(Emphasis added.)
. I note that the majority suggests that the en banc court may have authority to reconsider the constitutional claim that this division purportedly lacks under M.A.P. v. Ryan. See ante at 510. That argument, however, is in conflict with the majority’s interpretation of Rule 33 as precluding any claim presenting new evidence that is beyond Rule 33’s two-year window. If, as the majority holds, Rule 33 controls, even the en banc court would be precluded from considering a claim filed after the two-year window has closed.
.During the second oral argument in this appeal, the government acknowledged that the blood and knives mentioned in this court’s affir-mance, and highlighted in the quotation in the text, did not link appellants to the murder of Johnnie Battle. Specifically, minuscule drops of 'blood on Sousa’s shirt could not be identified. Similarly, a small amount of blood inside the leg of Diamen’s pants was not traced to the murder victim. The knife found on Eastridge had no traces of blood even though it was recovered soon after he purportedly savagely attacked Johnnie Battle. Nor were there any eyewitnesses who identified any of the appellants as a principal in the attack on Battle. In sum, although the evidence at trial supported appellants’ convictions as aiders and abettors, as the jury was permitted to find by the judge’s instructions, the case presented by the government to the jury in 1976, that Diamen, Sousa and Eas-tridge were principals in the attack and murder of Johnnie Battle, was dramatically different than what the physical and eyewitness evidence would appear to sustain.
. At the time of briefing for this appeal, in 1996, Diamen and Sousa had served 19 years in prison and were on parole, while Eastridge remained incarcerated. Codefendant Jones served less than four years in prison for his participation in the murder.
. Jones, a codefendant who also was found guilty of first-degree murder while armed, did not appeal his conviction. Richter, another codefend-ant, was found guilty of two counts of assault with a dangerous weapon and carrying a dangerous weapon. On direct appeal, this court reversed Richter’s convictions after concluding that the trial court abused its discretion in failing to sever Richter’s trial and that the evidence was insufficient to sustain one of the assault counts. Sousa, supra, 400 A.2d at 1038.
. Heirera assumed, without deciding, that "in a capital case a truly persuasive demonstration of ‘actual innocence' made after trial would render the execution of a defendant unconstitutional ....” 506 U.S. at 417, 113 S.Ct. 853. Out of a concern for finality and the burden that would be placed on states to retry cases based on stale evidence, the threshold for a showing of actual innocence by a convicted defendant sufficient to constitute, without more, a constitutional deprivation is "extraordinarily high.” Id.
. According to a 1995 affidavit by its president and founder, Reverend James McCloskey, Centurion Ministries is a nonprofit advocacy center that works, without charge, to assist individuals who claim to have been wrongfully convicted and are facing life sentences or the death penalty. According to the affidavit, since 1983 Centurion Ministries have used their resources in an attempt to vindicate thirty-four convicted persons in thirty different cases; as of 1995 fifteen convicted persons had been freed as a result of their efforts, after having served considerable portions of their sentences.
. Gianaris’ original 1992 affidavit was replaced in 1995 with a notarized copy of the same affidavit.
. See Willetts’ testimony page 519, supra. In addition to her trial testimony, Willetts' statement to the police in 1975 specified various occasions when Eastridge and Sousa were alleged to have made incriminating statements. The affiants are individuals Willetts claimed were present when the various incriminating statements were made and áll contend that they did not hear any incriminating statements.
. Two affidavits allege that Willetts had a poor reputation for truthfulness and was known in 1975 for being a liar. Four affidavits attack Willetts’ character.
. Super. Ct.Crim. R. 33 provides:
The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.... A motion for a new trial based on the ground of newly discovered evidence may be made only before or within 2 years after final judgment ....
Appellants’ § 23-110 motion was filed on April 7, 1995, nineteen years after final judgment by the trial court.
. Section 23-110 provides in part:
(a)A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, ... (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence.
(b) A motion for such relief may be made at any time.
(c) Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues, and make .findings of fact and conclusions of law with respect thereto. If the court finds that ... (2) the sentence imposed was not authorized by law or is otherwise open to collateral attack, (3) there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner, resentence him, grant a new trial, or correct the sentence, as may appear appropriate.
(e) The court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
*523D.C.Code § 23-110(1996).
. The trial court entertained Eastridge’s and Diamen's ineffective assistance of counsel claims along with Sousa’s, noting that it was obligated to entertain Sousa’s claims.
. The government also argues that Eastridge’s and Diamen’s claims are procedurally barred under § 23-110(e) which provides that ”[t]he court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” See Peoples v. Roach, 669 A.2d 700, 702 (D.C.1995); Mayfield v. United States, 659 A.2d 1249, 1253 (D.C.1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2566, 135 L.Ed.2d 1083 (1996). After acknowledging this potential bar, the trial court nonetheless recognized that Eastridge's and Diamen’s claims were identical to those of Sousa — who had not previously filed a § 23-110 motion. Because it had to address Sousa's claims, the trial court applied *524the same analysis to Diamen’s and Eastridge’s motions. As the trial court did address the merits of Eastridge’s and Diamen’s motions, § 23-110(e) is inapplicable.
. The scope of § 23-110 is “commensurate with habeas corpus relief." Swain v. Pressley, 430 U.S. 372, 384, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977).
. As § 2255 is "nearly identical and functionally equivalent" to D.C.Code § 23-110, wé rely on federal cases for guidance. See Butler v. United States, 388 A.2d 883, 886 n. 5 (D.C.1978).
. Unlike Sawyer, Kuhlmann, Murray, Schlup and other Supreme Court cases defining the fundamental miscarriage of justice exception to successive, abusive or procedurally barred claims, in Herrera there was no claim of constitutional error by the state courts. See 506 U.S. at 398, 113 S.Ct. 853. The Herrera Court refused to hear, because it considered it to be insufficient, petitioner’s claim that conviction and imposition of the death sentence in the face of his actual innocence, without more, constituted a constitutional violation. The court did not foreclose the possibility that a more compelling free-standing claim of actual innocence arising from an error-free trial would suffice to entitle a state petitioner to federal habeas relief. See 506 U.S. at 404-05, 113 S.Ct. 853. In Schlup, the Court made clear that in a habeas petition claiming a constitutional violation, the conviction "may not be entitled to the same degree of respect as one, such as Herrera’s, that is the product of an error-free trial." 513 U.S. at 316, 115 S.Ct. 851. Thus, "evidence of innocence need carry less of a burden” in a petition claiming a constitutional violation than in Herrera. Id.
. The procedural history of Schlup’s constitutional claim is similar to that of appellants, except that in Schlup’s case twice before the federal appellate court had already considered his constitutional claim of ineffective assistance of counsel — and denied it — before the Supreme Court established the standard for reconsidering the claim in a second round of federal habeas review when the same constitutional claim was augmented by a claim of actual innocence. Specifically, after being affirmed on direct appeal by the Missouri appeals and Supreme courts, Schlup’s murder conviction was subjected to state collateral attacks, which were fully exhausted, including affirmance by the Missouri Supreme Court. See Schlup, supra, 513 U.S. at 306 nn. 13 & 15, 115 S.Ct. 851. In his first pro se habeas petition filed in federal court, Schlup again raised a constitutional claim of ineffective assistance of counsel, namely that counsel had failed to investigate and call witnesses who could establish Schlup’s innocence. See id. at 306 n. 14, 115 S.Ct. 851. After the District Court denied the petition as being procedurally barred, the Court of Appeals for the Eighth Circuit affirmed, not on procedural grounds, but expressly deciding the merits after reviewing the record, and concluded that trial counsel’s performance had not been ineffective because counsel had reviewed statements from potential witnesses and not prejudicial because their testimony would have been cumulative in any event. See id. at 307, 115 S.Ct. 851. The Eighth Circuit denied rehearing and rehearing en banc, and the Supreme Court denied certiorari. See id.
Represented by counsel, Schlup filed a second habeas petition in the federal court, again asserting trial counsel’s ineffectiveness in failing to interview and present defense witnesses. This time, however, the constitutional claim was accompanied by a claim of actual innocence, supported by several affidavits from inmates who stated that Schlup had not been involved in the killing of which he was convicted. The District Court denied the petition, stating that it was too late and, applying the Sawyer standard, failed to *526make a sufficient showing that "a refusal to entertain those claims would result in a miscarriage of justice.” Id. at 309, 115 S.Ct. 851. On Schlup’s second appeal from the denial of a habeas petition, the Eighth Circuit, after discussing at length the proffered new evidence, again denied the petition on the merits. The appellate court decided that the new evidence was insufficiently persuasive to permit retrial; one judge dissented, concluding that the affidavits "Presented truly persuasive evidence that [Schlup] is actually innocent,' and that the District court therefore should have addressed the merits of Schlup's constitutional claims.” Id. at 312, 115 S.Ct. 851. After the Eighth Circuit again affirmed after rehearing the case en banc, the Supreme Court granted certiorari to determine whether the Sawyer standard was applicable to habeas petitions in which a constitutional claim is accompanied by a claim of actual innocence. As discussed in the text, the Court concluded that a lesser "more likely than not” standard was applicable to claims of actual innocence presented in this context, and remanded the case to the district court to determine whether Schlup's new evidence met die gateway standard and, if so, to reconsider his ineffective assistance of counsel claim.
. In 1996, after the Court’s opinion in Schlup, Congress enacted Title I of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1217, 1220, 28 U.S.C. §§ 2244 and 2255, which substantially changed the federal courts' authority to grant habeas relief from state and federal convictions. The amendments restrict the federal courts’ authority to consider habeas relief by imposing a one-year limitation on the filing of first habeas petitions, precluding consideration of second or successive habeas petitions from state-convicted prisoners based on previously considered claims and requiring appeals court certification before a district court may consider second habeas petitions based on new claims or successive petitions. In the case of second or successive motions, the standard for federal appellate court certification under both §§ 2244 (state convictions) and 2255 (federal convictions) is 1) the Sawyer standard whether there is evidence 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 reasonable fact finder would have found the movant guilty of the offense,” or 2) whether there is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255 (1998).
In Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Court interpreted the restrictive amendments as applying only to rulings of lower federal courts without, however, precluding at all habeas petitions filed as original matters with the Supreme Court under 28 U.S.C. §§ 2241 (state convictions) and 2254 (federal convictions). Id. at 660-61, 116 S.Ct. 2333. Therefore, even though the amendments cut off Supreme Court review of appeals court denials of required certifications for second or successive habeas petitions, the restrictions do not infringe on the Supreme Court’s appellate jurisdiction granted by Article III, § 2, id. at 662, 116 S.Ct. 2333, nor suspend the writ of habeas corpus in violation of Article I, § 9 of the Constitution, id. at 663, 116 S.Ct. 2333. Rather enigmatically, the Court stated that “[wjhether or not we are bound by these restrictions, they certainly inform our consideration of original habeas petitions ."Id.
. Similar limitations apply to habeas petitions challenging confinement. See D.C.Code §16-1901; Perkins v. Henderson, 881 F.Supp. 55, 59 (D.C.Cir.1985)
. I do not intend to imply that this is the only standard that will constitute “special circumstances” under Doepel. See, e.g., Peoples, supra, 669 A.2d at 702 n. 5 (intervening change in law).
.There is no need to decide at this point whether the proffers, if credible, would meet the Sawyer test, now adopted in 28 U.S.C. §§ 2244 and 2255, of clear and convincing evidence.
. Counsel for Sousa attempted to cross-examine Pamela Heim, a key government witness, regarding the number and names of the individuals she saw chasing Battle. On direct examination, Heim testified that she did not see the chase; she had stated to the grand jury, however, that she saw Jones, among others, excluding appellants, chasing Battle. This line of inquiry was foreclosed by the trial court's ruling because it would have implicated Jones. Sousa’s counsel also was prohibited from cross-examining Heim regarding alleged conversations she had or overheard because the information would inculpate a code-fendant (Jones), even1 though the information also would have exonerated appellants. See also note 28, infra.
. At trial, Sousa's counsel expressed concern that he was unable to present Sousa's defense properly without a more indepth cross-examination of Dorothy Willetts, a key government witness:
Counsel: I am unable to cross examine these witnesses to clarify and show exculpatory information as it relates to my client.... I am confounded by reason of the fact that I cannot lay out the full fabric of the situation to the jury; not because it does not exist, not because there is not evidence to show that it does exist, but simply and completely because another defendant stands in the way of my client laying out these facts. And that utterly confuses me in the presentation of his defense, Your Honor. At a later point in the trial, Sousa’s counsel
wanted to cross-examine another government witness, Pamela Heim, regarding any blood she saw on the codefendants:
Counsel: Did I understand Your Honor's ruling that I cannot in the course of cross-examination deal with the subject of blood as it was shown on another person other than my client?
The Court: That’s right.
. The following exchange between Sousa’s counsel and the trial court discussing whether Sousa’s counsel could elicit certain information from a government witness which would inculpate certain codefendants illustrates counsel’s concern regarding his inability to present a coherent defense theory:
Counsel: This transcript, in several instances, points the finger elsewhere other than at my client. And I believe that a good defense in the case for my client, Mr. Sousa, or for any client I have, is that my client could not possibly have done it because somebody else did it.
The Court: Does it point a finger at who did it?
Counsel: Yes, Your Honor, it does. I can’t bring that out at this time because of the Court’s ruling.
. In light of the conclusion that § 23 — 110(a)(1) is an appropriate vehicle to address appellants’ constitutional claims, it is not necessary to address whether § 23-110(a)(4), which provides relief if "the sentence is otherwise subject to collateral attack,” is available for a collateral attack based solely on new evidence outside the parameters of Super. Ct.Crim. R. 33, which requires that motions for new trial on the basis of newly-discovered evidence must be filed within two years of final judgment. The question is unsettled. See Guinan v. United States, 6 F.3d 468, 470-71 (7th Cir.1993); but see Herrera, supra, 506 U.S. at 417, 113 S.Ct. 853; United States v. Kearney, 212 U.S.App. D.C. 319, 322, 659 F.2d 1203, 1206 (1981) (MacKinnon, J., dissenting).
. The hearsay nature of parts of the affidavits of Grayson, Lurz and Richter is, therefore, not a bar to their consideration by the trial court for the purpose of determining whether the gateway standard has been met.
. On remand the trial court also should reevaluate its decision not to consider affidavits that contradict Willetts’ trial testimony in the context of the other evidence being presented of appellants’ innocence.
. See page 519, supra.
. It is undisputed that appellants could have been found guilty as aiders and abettors even if they were not principals in the attack. See supra note 7. However, where there has been a constitutional violation, neither the government’s burden under § 23-110 to show harmlessness beyond a reasonable doubt, nor the appellants’ burden under the miscarriage of justice exception to show that it is "more likely than not" that they would not have been convicted, are overcome by a determination that the evidence would have been sufficient to convict. See Schlup, supra, 513 U.S. at 331, 115 S.Ct. 851; Flores v. United States, 698 A.2d 474, 480-81 (D.C.1997).
.Because the trial court rejected the affidavits without a hearing, appellants were not given an opportunity to argue that the third party state*532ments contained in the affidavits of Richter, Lurz and Grayson were not inadmissible hearsay, but rather, would be admissible as statements against the declarants’ penal interests. See Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (addressing scope of exception for declarations against interest). At the hearing the trial court can revisit this issue, if necessary, with the benefit of arguments from the parties. See id. at 604, 114 S.Ct. 2431 (noting that whether statement is against penal interest "can be a fact-intensive inquiry, which would require careful examination of all the circumstances surrounding the criminal activity involved.”)
. Appellants’ specific request is not part of the record.
. Gibson held that the trial court abused its discretion in part because it did not consider the affidavit of a veteran police officer, which provided compelling information exonerating Gibson, and because there was sufficient information warranting further investigation. 566 A.2d at 479.