Habeas Corpus and Actual Innocence

I am convinced that the U.S. Supreme Court decision in McQuiggin v. Perkins, 569 U.S. ___ (2013), was really about re-aligning the checks-and-balances and restoring federal courts’ authority to take corrective measures. While the decision was technically adverse to the underlying habeas corpus petition, it was overwhelmingly (and controversially) restorative to habeas corpus practice, and I think the Supreme Court chose to hear the case simply to renew its prior holdings in House v. Bell, 513 U.S. 298 (2006), and Schlup v. Delo, 513 U.S. 298  (1995), rather than to address the actual issue of Perkins’ liberty.

Writs of habeas corpus are traceable at least as far back as the Magna Carta of 1215. Basically, it’s a desperate cry to a higher authority to investigate a person’s unjust confinement. Most landmark precedents emerge from federal habeas corpus proceedings—Gideon v. Wainwright and Mirando v. Arizona are two such über-cases that every American student hears in high school. I’ve been digging around and want to take a moment to disseminate information on one particular aspect that exists in United States federal courts called Actual Innocence.

Actual Innocence’s legal predicate is notably nuanced and therefore easily misapprehended and misremembered. Perhaps for this reason, the Supreme Court availed itself of McQuiggin v. Perkins (2013) to reaffirm the character of “federal habeas review applied in Schlup v. Delo and further explained in House v. Bell [where] a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims” (McQuiggin v. Perkins, 569 U.S. ___ (2013), slip op., at 1; internal citations omitted).

Prior to Schlup v. Delo (1995), actual innocence had been discussed notably in Herrera v. Collins, 506 U.S. 390 (1993), Sawyer v. Whitley, 505 U.S. 333 (1992), Kuhlmann v. Wilson, 477 U.S. 436 (1986), and Murray v. Carrier, 477 U.S. 478 (1986). These cases, however, presented questions fundamentally different from Schlup:

Schlup’s claim of innocence, on the other hand, is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, and the withholding of evidence by the prosecution, denied him the full panoply of protections afforded to criminal defendants by the Constitution. Schlup, however, faces procedural obstacles that he must overcome before a federal court may address the merits of those constitutional claims. Because Schlup has been unable to establish “cause and prejudice” sufficient to excuse his failure to present his evidence in support of his first federal petition, Schlup may obtain review of his constitutional claims only if he falls within the “narrow class of cases . . . implicating a fundamental miscarriage of justice.” Schlup’s claim of innocence is offered [… as] a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. (Schlup, at 314-315; internal citations omitted)

The Supreme Court also noted that Schlup presented fundamentally distinct facts by virtue of the assertion of grave constitutional trial error (id, at 316):

Schlup’s 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. Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim. However, if a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims. (Schlup, at 316)

The Justices noted that “habeas corpus is, at its core, an equitable remedy” that is consistently relied upon when required to do so by the “ends of justice” (Schlup, at 319). Moreover, the court recognized that “in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration” (id, at 320-321).

Admittedly, “a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare,” and by virtue of this rarity such petitions “pose less of a threat to scarce judicial resources and to principles of finality and comity” while still managing to “balance the societal interests […] with the individual interest in justice that arises in the extraordinary case” (id, at 324). The Schlup opinion resolved that the prior Carrier standard, rather than Sawyer, should govern Schlup’s type of actual innocence claim (Schlup, at 324-326). To satisfy this standard, “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” (Schlup, at 327). Consequently, the “probabilistic inquiry” called for authorized the district court to convene an evidentiary hearing to “assess the probative force of the newly presented evidence” (Schlup, at 330-331).

House v. Bell (2006) affirmed that although “federal habeas courts, as a general rule, are closed to claims that state courts would consider defaulted[, i]n certain exceptional cases involving a compelling claim of actual innocence, however, the state procedural default rule is not a bar to a federal habeas corpus petition” (id, at 522, citing Schlup, at 319-322). And as in Schlup, “the societal interests in finality, comity, and conservation of scarce judicial resources” must be reconciled with “the individual interest in justice that arises in the extraordinary case” such that “principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration” (House, at 536).

House v. Bell provided new guidance for construing evidence of innocence noting that the district court does not sit to reach some “independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors” and thus “does not require absolute certainty about the petitioner’s guilt or innocence” (id, at 538). Stated more freely:

A petitioner’s burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt–or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt. (House, at 538)

The inquiry conducted by a district court should take the form of a “holistic judgment about all the evidence and its likely effect on reasonable jurors applying the reasonable-doubt standard. As a general rule, the inquiry does not turn on discrete findings regarding disputed points of fact, and it is not the district court’s independent judgment as to whether reasonable doubt exists” (House, at 539-540).

Noting that it was “not a case of conclusive exoneration” in that it did not refute all of the state’s evidence against House, the Justices concluded that it was a “rare case where—had the jury heard all the conflicting testimony—it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt” (id, at 553-554). In other words, the court held that “the Schlup standard does not require absolute certainty about the petitioner’s guilt or innocence. A petitioner’s burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, […] any reasonable juror would have reasonable doubt.” (id, at 538)

House v. Bell—lastly, but no less critically—dispelled the argument that AEDPA barred habeas pursuit of defaulted claims. While procedurally Schlup had presented a successive petition that might be subject to AEDPA, this fact alone did not necessarily displace the gateway. But the Justices also independently concluded that AEDPA’s limiting provisions did not reach the facts of “a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence” (House, at 539). If this were not clear enough, the Supreme Court reiterated in McQuiggin v. Perkins (2013) that in a “first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA’s passage intact and unrestricted” (id, slip op, at 13).

McQuiggin v. Perkins (2013) thus renews the premise that “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations” (id, slip op, at 1). It would also seem the Justices’ wish to revive a discussion of the federal courts’ equitable authority with respect to the principles of the Great Writ: “Equitable principles have traditionally governed the substantive law of habeas corpus […and] we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command” (McQuiggin, at 13). It is therefore settled that “where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default […].” (McQuiggin, at 8; see also House, at 537-538; Schlup, at 324).

The ends-of-justice logic also trumped AEDPA in Holland v. Florida, 560 US 631 (2010):

AEDPA seeks to eliminate delays in the federal habeas review process. But AEDPA seeks to do so without undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law . . . . When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights. (McQuiggin, at 13)

Although Holland was not an actual innocence claim, it just goes to further elevate and empower exceptions under actual innocence.

Most of the time actual innocence claims are asserted in conjunction with ineffective assistance of counsel. They are also often presented without an attorney’s help. But even then, many attorneys do not understand the actual innocence exception and will flatly tell a client that habeas review is blocked by AEDPA. It is my hope that putting this summary online might reach the families of those who are wrongfully convicted. Of course, none of this post constitutes legal advice.

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