Jordan Steiker is the Judge Robert M. Parker Chair in Law and Co-Director, Capital Punishment Center at the University of Texas School of Law.
Yesterday a closely divided Court concluded that a proper showing of “actual innocence” is sufficient to circumvent the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. Justice Ginsburg, writing for the five Justices in the majority, affirmed that “a credible showing of actual innocence” remains a global gateway around procedural obstacles on federal habeas permitting “merits” review of an inmate’s federal constitutional claims. In so doing, the Court rejected the state’s assertion that the innocence exception should be unavailable to petitioners who fail to act with due diligence in filing for federal habeas relief. At the same time, the Court indicated that “unjustifiable delay” on the part of a habeas petitioner might bear on the strength of his showing of actual innocence. Accordingly, instead of simply affirming the court below – the U.S. Court of Appeals for the Sixth Circuit had rightly concluded that a showing of actual innocence stands as an exception to AEDPA’s statute of limitations – the Court vacated and remanded the case with its added gloss on the equitable doctrine. Moreover, the Court’s remand makes clear that it sees no reason to disturb the district court’s conclusion that Perkins’s showing of innocence was in any event insufficient to justify overcoming the limitations bar. Ultimately, the decision reflects the Court’s continued commitment to its own role in setting the equitable parameters of the federal habeas forum. Given the Court’s special solicitude for inmates who can make a compelling case of actual innocence, such inmates will continue to receive a “get-out-of-habeas-procedure-free” card; to receive actual relief, however, those inmates must also demonstrate a separate constitutional violation (apart from their innocence), at least until the Court revisits Herrera v. Collins.
Justice Ginsburg delivers opinion. L to R : Kennedy, Ginsburg, Alito, Kagan (Art Lien)
The central issue in this case was whether the Court-created “miscarriage of justice” exception to procedural obstacles survived AEDPA’s restrictions on the habeas forum. The Court had previously held that such an exception continued to apply in cases of forfeitures in state court, but AEDPA had not altered federal habeas treatment of state defaults. The Court had also applied the exception to recall the mandate in a state prisoner case and to overcome a default in a federal prisoner case. But the state argued in this case that AEDPA’s text did not establish an “innocence” exception to its limitations provision and Perkins failed to qualify for equitable tolling because of his conceded lack of diligence. Given AEDPA’s silence with respect to innocence in its limitations provision, as well as its limited provision for an innocence exception to its bar on evidentiary hearings and new-claim successive petitions, the state claimed that the Court lacked power to fashion its own equitable innocence gateway.
The Court reasoned that AEDPA was drafted against the background of the Court’s “miscarriage of justice” exception and therefore should be presumed to apply unless explicitly altered. Indeed, the Court declared quite broadly that “the miscarriage of justice exception survived AEDPA’s passage intact and unrestricted.” The Court defended the miscarriage of justice exception as striking the right balance between states’ interests in comity and finality, on the one hand, and the interest in seeing that federal constitutional errors do not result in the incarceration of innocent persons. The Court viewed AEDPA’s provision for limited innocence gateways in the evidentiary and successive petition contexts as essentially “exceptions” to the Court’s “exception” rather than as the sole contexts in which innocence remained relevant to the availability of the habeas forum.
Justice Scalia, writing for four dissenters, complained that the Court was assuming unwarranted power to rewrite the habeas statute. He distinguished all of the previous cases by claiming that the Court had never applied its miscarriage of justice exception in the teeth of clear statutory language to the contrary; in his view, the Court was on much stronger ground when it was crafting an equitable exception to its own equitable doctrines limiting the availability of the habeas forum (such as the law governing state procedural defaults). Justice Scalia overstates the case, however. One of the Court’s earliest elaborations of the miscarriage of justice exception – exactly fifty years ago – involved plain congressional language forbidding successive petitions brought by federal prisoners (federal courts “shall not be required to entertain a second . . . motion for similar relief”). The Court responded to that language with a generous equitable standard allowing such petitions and standardizing its treatment of successive petitions in the state and federal prisoner context. The Court subsequently replaced its generous equitable approach with its more demanding contemporary approach focusing on innocence. Ultimately, Justice Scalia might be right that the Court should limit its equitable role when Congress has spoken, but he is wrong to suggest that the Court has entered new ground by assuming an equitable role in such circumstances. Federal habeas remains a forum in which the Court’s equitable judgment controls the litigation in many cases.
Perhaps the most surprising aspect of the Court’s decision was the fact of a decision at all. The argument revealed that the district court in this case had essentially rejected Perkins’s claim of innocence, rendering its rejection of the innocence exception to the limitations period irrelevant. The Court could have disposed of the case by reversing the Sixth Circuit for reaching the innocence-exception question or by dismissing as improvidently granted. Indeed, the Court’s remand goes about as far as possible in directing the Sixth Circuit to affirm the disposition of the district court, stating that “the District Court’s appraisal of Perkins’ petition as insufficient to meet [the] actual-innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation.” In the end, the Court seems committed to preserving its equitable discretion in the habeas context. In this respect, the majority’s view of the current habeas world could not be more different from the dissent’s. Justice Scalia lamented that the Court’s tinkering with the habeas statute by adding protection for the innocent is akin to foisting “another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it.” Given almost two decades of mind-numbingly complicated and confusing litigation over the meaning and scope of AEDPA, future majorities are unlikely to agree with Justice Scalia’s view that the federal habeas statute amounts to the pinnacle of human craft and that “the intricate craftsmanship tells us that the designer arranged things just as he wanted them.”
UPDATED 1:08pm:
In Plain English:
Under federal law, state prisoners can go to federal court to challenge the constitutionality of their convictions – a process known as “federal habeas.” In 1996, Congress passed a law that imposed new restrictions on the ability of state prisoners to seek federal habeas relief. Among other things, the law requires state prisoners to file their petition seeking federal habeas relief within one year after their convictions become final, although it extends that time period for prisoners who act with “due diligence.” In this case, Floyd Perkins, who was convicted of first-degree murder in Michigan, did not comply with the one-year time limit, but he argued that the federal habeas court should still consider his constitutional claims because he also had evidence showing that he was innocent; for many years prior to the 1996 provision, the U.S. Supreme Court had crafted its own “innocence exception” to procedural obstacles on federal habeas. The federal district court concluded that being innocent does not justify overlooking the time limit if the prisoner failed to act with due diligence, relying on the 1996 provision; that court also found Perkins’s evidence of his innocence to be unpersuasive. The U.S. Court of Appeals for the Sixth Circuit reversed, holding that innocence continues to provide a “gateway” around procedural obstacles, including the one-year time limitation. Yesterday the U.S. Supreme Court agreed with the Sixth Circuit that innocence remains a global exception to procedural obstacles on federal habeas, but it also ruled that a state prisoner’s claim of innocence could be undermined if he unreasonably delays his filing of a habeas petition. The Court sent the case back to the Sixth Circuit, suggesting strongly that it should give credit to the district court’s conclusion that Perkins’s claim of innocence was unpersuasive (and therefore it would not actually need to resolve his underlying constitutional claims). The case is important in holding that the Court’s power to protect potentially innocent inmates who suffer a constitutional violation remains intact notwithstanding new congressional rules governing the federal habeas forum.
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