For a good recap of the different opinions and the ins and outs of what it takes to be an original petition, see SCOTUSBLOG's writeup, here. And Doug Berman does a really nice job of canvassing many of the important issues, here.
Unfortunately, this momentous order won't really have much of an effect on New York State petitioners. At least not directly. It seems that it will only be in capital cases where the Court would consider taking these extraordinary steps.
Nevertheless, lying at the core of this case obviously is a critical issue that potentially affects any habeas petition -- the question of actual innocence. I have been meaning to write a post that focuses on the role of actual innocence in habeas cases. May as well do that now.
Can a habeas petitioner get habeas relief based on the claim that he is actually innocent?
It is an unsettled issue as the Supreme Court specifically left the question open in a case called Herera.
What we do know is that actual innocence does currently play an integral role in habeas cases. First, a showing of actual innocence can be used as a gateway to review of claims that have been procedurally defaulted. Second, courts (such as the Southern District and Second Circuit) have suggested that a showing of actual innocence can allow review of an untimely petition.
So it stands to reason that, because actual innocence is a factor in habeas review, it should represent a ground for relief all on its own. The federal courts look this factor all the time. Indeed, it would be perverse to think that a strong and compelling showing of actual innocence would allow a federal court to review an underlying constitutional claim in a petition, only to deny the petition because the constitutional claim has no merit despite the compelling showing of innocence.
But it is not that easy. In fact, it's a bit of a conundrum. I think Scalia has it right in his dissent in Davis that habeas relief can only be granted if the petitioner is being held in violation of his constitutional rights. That's exactly what the statute says and it is clearly how habeas relief in general has been interpreted.
So, to get relief on actual innocence claim, the claim would have to be that keeping an actually innocent person in custody violates a constitutional right. But what constitutional right? I am not really sure if there is one. I am sure petitioners have raised substantive due process claims. Maybe some type of panolopy of rights. Maybe just a sense of fairness ingrained in the Constitution. It really seems like it would have to be some kind of free-floating fairness right, that is very hard to pin down. So that's why Justice Scalia's opinion today, while shocking and scary, does have logic on its side. As the oppressive jurisprudence currently stands, unless there has been a violation of a constitutional right, a federal habeas court cannot stand in the way of a State's execution even if the person can show that he is innocent.
It's that grisly thought that seems to have motivated Justice Stevens. In his concurring opinion, he states, "But imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning."
While the overwhelming majority of people would agree with Justice Stevens here (it's pretty depressing to think that some people would disagree with this, but there are), this reasoning is not coming from a strictly legal point of view. It is coming from a moral and sense-of-fairness point of view. Who in their right mind would condone an execution where the person is innocent? It's too horrible to think about.
But, honestly, that's not quite good enough here. While it would make me feel good for the federal courts to use habeas in this way, that's not really how habeas has been developed. I guess there is some hypocrisy here from the right, who have always viewed habeas as a safety valve measure. This clearly is attempting to use it as a safety valve. But the law is the law right now and federal habeas courts aren't entitled to fill in this void. I guess that's Congress's job. As the sharp legal blogger bmaz discusses here, maybe it is finally time to do something about the AEDPA. An easy fix would be to change the habeas statutes to create relief in actual innocence cases. But federal courts cannot create a constitutional right that doesn't exist just out of moral shock.
Of course, I could be wrong in my premise. Actually, I hope I am. Maybe federal courts will find that an actual innocence claim does exist on its own. I guess it is only one step further than using actual innocence to excuse procedural defaults. Indeed, the claim does seem to be strong enough for some judges as at least two New York State trial level courts have concluded that, under the State Constitution, the claim does exist. See People v. Wheeler-Whichard, Kings Co. Ind. NO. 5212/96, 2009 WL 2475900 (Kings. Co. Sup. Ct. July 30, 2009); People v. Cole, 1 Misc.3d 531 (Kings Co. Sup. Ct. 2003). So maybe I am writing the claim off prematurely.
But for now, there is the conundrum - what the law says vs. doing what's right. Yesterday, doing what's right won a hearing.