Innocence and habeas corpus.

In recent years, the Supreme Court has dramatically, limited the availability of federal court habeas corpus relief Repeatedly, the Court has emphasized the costs of habeas corpus in disrupting the finality of convictions and causing friction between federal and state judiciaries. (See, e.g., Teague v. Lane, 489 U.S. 288, 309-10 (1989).) Although the Court has limited the possibility of habeas corpus relief, it has declared that a person who makes a showing of actual innocence should be heard even if the petition would otherwise be barred.

For example, in Murray v. Carrier, the Court held that a criminal defendant who fails to raise a matter in the trial proceedings cannot present the issue on habeas corpus review unless there is cause for the procedural default and prejudice to not being heard. (477 U.S. 478 (1986).) However, even without demonstrating cause and prejudice, the petition can be heard if there is a showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent...." (Id. at 496.)

Likewise, in McCleskey v. Zant, the Court held that once a habeas petition is litigated, the person cannot have a federal court hear another habeas petition unless there is cause and prejudice or a showing that the person probably, is actually, innocent. (499 U.S. 467, 495 (1991).)

What, however, must a person prove hi order to demonstrate actual innocence? This was the focus of the recent Supreme Court decision in Schlup v. Delo. (63 U.S.L.W. 4089 (U.S. Jan. 23, 1995).) By a 5-4 margin, the Court held that to prove actual innocence, a habeas petitioner must show there was a constitutional violation that "probably resulted" in the conviction of a person who is actually, innocent. (Id. at 4097.)

The Court expressly rejected the argument, embraced by the dissent, that to prove actual innocence a person must show, with clear and convincing evidence that but for the constitutional error no reasonable juror would have convicted him. (Id. at 4101 (Rehnquist, C.J., dissenting).)

Earlier Decisions on `Actual

Innocence'

Before Schlup, there were two Supreme Court cases concerning when an otherwise barred habeas petition can be heard if there is proof of actual innocence. Both made it difficult for habeas petitioners to use actual innocence as a basis for federal court review.

In Sawyer v. Whitley, the issue was what actual innocence means in the context of challenging a sentence. (112 S. Ct. 2514 (1992).) The Court held that to demonstrate actual innocence, a person must "show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." (Id. at 2517.) The Court made it clear that actual innocence is a "very narrow" exception" to the rule that cause and prejudice must be demonstrated to present successive or defaulted claims. (Id. at 2520.)

Justices John Paul Stevens, Harry Blackmun, and Sandra Day O'Connor concurred in the judgment. They, argued that applying the clear and convincing evidence test is unprecedented in this context. Stevens observed that in a non-capital case a defendant need only "show that the constitutional error `probably resulted' in a miscarriage of justice," while under the majority's test "a capital defendant must present clear and convincing evidence that no reasonable juror would find him eligible for the death penalty." (Id. at 2533 (Stevens, J., concurring).) He lamented that "[i]t is heartlessly perverse to impose a more stringent standard of proof to avoid a miscarriage of justice in a capital case than a noncapital case." (Id.)

In the other case before Schlup that considered actual innocence, the Court held that this claim is not sufficient by itself to permit a federal court to hear an otherwise barred habeas petition. Rather, actual innocence is relevant only if the petitioner is claiming a violation of a federal right. In Herrera v. Collins, a majority of the Court joined Chief Justice William Rehnquist's conclusion that "actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." (113 S. Ct. 853, 862 (1993).)

Ten years after his conviction, Leonel Torres Herrera brought a habeas petition. He claimed that newly discovered evidence demonstrated that he was actually innocent of the murders for which he was convicted and that, in fact, his now-deceased brother was the actual perpetrator. A Texas rule that newly discovered evidence be presented within 30 days after imposition or suspension of sentence precluded the claim from being brought in state court. (Id. at 864.)

Rehnquist's opinion stated that actual innocence is a basis for a federal court's hearing successive or defaulted constitutional claims even when the cause and prejudice test is not met. Actual innocence, however, is not a basis for habeas relief by itself. The Court's opinion stated that the "traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." (Id. at 869.)

However, this seemingly, harsh result - that innocent people could be executed because state and federal courts refuse to hear the newly, discovered evidence and executive clemency is denied - is called into question by the concurring opinion of O'Connor and Justice Anthony Kennedy. Although these two justices concurred in Rehnquist's opinion, they said that "the execution of a legally and factually innocent person would be a constitutionally, intolerable event." (Id. at 870 (O'Connor, J., concurring).)

Indeed, they concluded their opinion as assuming "that a truly, persuasive demonstration of actual innocence would render any, such execution unconstitutional and that federal habeas relief would be warranted if no state avenue were open to process the claim." (Id. at 874.) O'Connor's opinion reviewed the evidence against Herrera and concluded that it was appropriate to deny his habeas petition because he "is not innocent, in any sense of the word." (Id. at 870.)

While Justices Antonin Scalia and Clarence Thomas also concurred, they expressed the view that even if a person presented compelling evidence demonstrating "actual innocence," that by itself would never be sufficient for habeas relief. Scalia wrote, "There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." (Id. at 874-75 (Scalia, J., concurring).)

At most, Herrera stands for the proposition that a habeas petitioner seeking relief by claiming that newly discovered evidence demonstrates actual innocence has a heavy burden to meet. Although Rehnquist's majority opinion appears to bar habeas claims based solely on actual innocence, a majority of justices did not subscribe to this position. Instead, when the opinions in Herrera are counted, a majority indicated that a well-supported claim of actual innocence could be the basis for habeas relief.

Schlup v. Delo

Lloyd Schlup was a prisoner in the Missouri State Penitentiary, when another inmate was murdered. Schlup was convicted of this murder and sentenced to death. After exhausting all direct appeals of his conviction and sentence, he brought an unsuccessful habeas petition in federal court.

Later, he filed a second federal habeas petition "alleging that constitutional error deprived the jury of critical evidence that would have established his innocence." (Schlup, 63 U.S.L.W 4089, 4090.) The federal district court concluded, without holding a hearing, that his petition could not be heard because it was a successive petition and that he could not sufficiently demonstrate "actual innocence."

The district court applied Sawyer and dismissed Schlup's petition because he could not show by, "clear and convincing evidence that but for a constitutional al error, no reasonable juror would have found [him] guilty." (Id.) The Court of Appeals affirmed, and the Supreme Court granted review "to consider whether the Sawyer standard provides adequate protection against the kind of miscarriage of justice that would result from the execution of a person who is actually innocent." (Id.)

Schlup's second habeas petition presented a number of claims including that Schlup was actually innocent of the murder, that there was ineffective assistance of counsel at the trial because alibi witnesses were not interviewed, and that the state unconstitutionally had faded to disclose exculpatory evidence.

Schlup relied on an affidavit from another inmate who at the time of the murder was the clerk for the housing unit and who attested that he called for help shortly after the murder occurred. Schlup had a videotape showing that he was! in the cafeteria 65 seconds before the guards received the distress call. Also, Schlup presented affidavits from two other inmates identifying another inmate as the assailant.

While the case was pending before the Eighth Circuit, Schlup obtained a statement from a former lieutenant at the prison who saw Schlup going to lunch on the day of the murder and who could see Schlup for at least two and a half minutes. The lieutenant said that "Schlup was walking at a leisurely pace; and that Schlup `was not perspiring or breathing hard, and he was not nervous.'" (Id. at 4093.)

At the outset, Stevens's majority opinion in Schlup distinguished Herrera. Stevens explained that Schlup alleged his constitutional rights had been violated because of ineffective assistance of counsel and because of the prosecution's failure to disclose exculpatory, evidence. Therefore, Schlup was using actual innocence as a basis for having his otherwise barred constitutional claims heard. Unlike Herrera, Schlup was not arguing that actual innocence by itself was a basis for federal habeas relief.

Stevens explained that this distinction was critical in determining the appropriate burden of proof. He wrote:

Schlup, in contrast, accompanies his claim of innocence with an assertion of constitutional error at trial. For this reason, 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.... [I]f 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 non-harmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claim....

Consequently, Schlup's evidence of innocence need carry less of a burden.

(Id. at 4094.)

Stevens explained the critical importance of habeas relief for a petitioner who asserts a constitutional violation and makes a showing of likely actual innocence. Stevens said that the "quintessential miscarriage of justice is the execution of a person who is entirely innocent." (Id. at 4096.) Thus, the Court concluded that a person seeking to have an otherwise barred habeas petition heard because of actual innocence must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." (Id. at 4097.)

O'Connor emphasized in her concurring opinion that this requires a habeas petitioner to "`show that it is more likely than not that no reasonable juror would have convicted him' in fight of newly discovered evidence of innocence." (Id. at 4099 (O'Connor, J., concurring) (citation omitted).) She explained that this means that the habeas petition cannot be heard "if the district court believes it more likely than not that there is any juror who, acting reasonably, would have found the petitioner guilty beyond a reasonable doubt." (Id.)

Rehnquist, Kennedy, Thomas, and Scalia dissented. Rehnquist argued that the Sawyer standard - that a person only may challenge a sentence based on a claim of actual innocence if he or she demonstrates by clear and convincing evidence that but for a constitutional error no reasonable juror would have imposed the death sentence - also should be used in determining whether challenges to convictions can be heard based on actual innocence.

Rehnquist argued that using the Sawyer standard would strike "the proper balance among the state's interest in finality, the federal courts' respect for principles of federalism, and `the ultimate equity on the prisoner's side - a sufficient showing of actual innocence.'" (Id. at 4101 (Rehnquist, C.J., dissenting) (citations omitted).)

There is obviously enormous importance in making sure that an innocent person is not incarcerated or put to death.

Requiring a habeas petition to prove with clear and convincing evidence that no reasonable juror would have come to the conclusion of guilt would create an almost insurmountable obstacle to federal court relief. Schlup P. Delo properly recognizes that federal court relief should be available to a person who shows that it is likely that a constitutional error is causing an actually innocent person to be punished.