In his concurring opinion, Stevens stated that there are three ways in which the district court could arguably grant relief to Davis on an actual innocence claim: (1) conclude that the AEDPA does not apply to original habeas petitions; (2) find that the AEDPA is unconstitutional to the extent that it forecloses relief to a petitioner who is actually innocent; or (3) find that, even under the AEDPA, Davis is entitled to relief since there is a clear basis in the Court's prior cases for concluding that the execution of an innocent person is unconstitutional.
Starting with the third option, I think Scalia is right that there is no clearly established law establishing that holding a petitioner who is actually innocent in custody (or executing that innocent petitioner) violates the petitioner's constitutional rights. While most people would agree that this should state some kind of constitutional violation, the Supreme Court has never said it. And only the Court's opinion matters here. So I think that 3 is DOA.
Stepping back to the first option, I am not sure that's a plausible answer. While an original habeas petition is not one filed under 2254, I would find it hard to believe that the standards that apply to 2254 would not apply to original petitions. What would be the basis for the different standards? I don't see it. I guess this is a possibility, but a remote one, and one that the Supreme Court is not likely to adopt.
So, in my mind, the best avenue for an actual innocence claim would be through option number 2. It would have to be that a petitioner can make the case that (1) actual innocence can stand alone as a substantive constitutional violation, (2) he is actually innocent, and (3) the inability to gain relief under the AEDPA for the violation of this substantive right violates the Suspension Clause or substantive due process or some other constitutional right.
So, New York petitioners take note: this would be the way to do it through a 2254 petition. I have previously commented about how perverse it would be for a federal court to excuse a procedural default on the ground of actual innocence but then deny the petition because there was no merit to the underlying constitutional claim. This perversity would be made non-perverse if the court could simply ignore the underlying meritless constitutional claim and just find that actual innocence itself is the basis for relief (assuming that the petitioner has made a pretty substantial showing of actual innocence).
Is there any possibility that this could happen? Does actual innocence have a fighting chance? In my prior post, I downplayed its chances.
But, let me play devil's advocate with myself and, below the fold, I'll make the case for actual innocence as its own substantive constitutional claim.
In that case, the habeas petitioner attempted to advance in his petition an independent constitutional claim based on actual innocence. The majority opinion, written by Chief Judge Rehnquist, found that a claim of actual innocence did not state an independent constitutional claim cognizable in a federal habeas petition, so long as the state allowed a defendant to obtain executive clemency based on actual innocence. Id. at 398-417. Nevertheless, the majority assumed for the sake of argument that such a claim could exist. However, for a defendant to be successful on such a claim, he would need to make an “extraordinarily high” threshold showing. Id. at 417. The Court found that Herrera had not made such a showing. Id. at 417-18.
In a concurring opinion joined by Justice Kennedy, Justice O’Connor stated that, “I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution,” but the petitioner in that case was not innocent. Herrera, 506 U.S. at 419 (O’Connor, J., concurring).
Writing for himself, Justice White assumed that an actual innocence claim could be advanced under the Constitution and articulated a standard that should be used in evaluating such claims. Herrera, 506 U.S. at 429 (White, J., concurring).
Justice Blackmun, joined by Justices Stevens and Souter, dissented. He determined that a free-standing actual innocence claim did exist under the Due Process and Cruel and Unusual Punishment Clauses. Herrera, 506 U.S. at 430-46 (Blackmun, J., dissenting).
What can be taken from Herrera? First, as Scalia correctly stated in Davis, it remains an open question whether, in the appropriate circumstances, a free-standing actual innocence claim can establish a constitutional violation. See, e.g., House v. Bell, __ U.S. __, 126 S. Ct. 2064, 2086-87 (2006) (discussed below); Boyde v. Brown, 404 F.3d 1159 (9th Cir. 2004); Noel v. Norris, 322 F.3d 500 (8th Cir. 2003); Clayton v. Gibson, 199 F.3d 1162 (10th Cir. 1999); but see Sibley v. Culliver, 377 F.3d 1196 (11th Cir. 2004); LaFevers v. Gibson, 238 F.3d 1263 (8th Cir. 2001).
Nevertheless, the strong suggestion in Herrera is that such a right would exist should the appropriate showing be made. The majority did assume that such a claim could be stated. Six Justices in Herrera found that the execution of an innocent man would offend the Constitution. Three believed that it existed under the Due Process Clause and the Eighth Amendment. Three suggested that it "existed under the Constitution" without articulating the basis. Probably just notions of fairness. But of those six, only two remain on the bench - Stevens and Kennedy.
Another important point is that Herrera was decided before the AEDPA. While there still were challenges to raising an actual innocence claim for the first time in a habeas proceeding, they were not as insurmountable as the AEDPA's standard of review.
A couple years after Herrera, but still before the AEDPA, the Court suggested in dicta in Schlup v. Delo, 513 U.S. 298, 316 (1995), that a Herrera-type substantive innocence claim could be asserted if the evidence of innocence is strong enough to make his execution “constitutionally intolerable.” Not sure what that means exactly, but it does imply that an actual innocence claim is floating somewhere in the Constitution.
What is important to keep in mind is that, at the time of Herrera, the concept of actual innocence was more abstract. The decision was rendered before the tidal wave of exonerations based on DNA testing beginning in the early 1990's. Thus, DNA testing has made actual innocence claims a more certain reality than at the time of Herrera.
It should be noted that in 2004, Congress passed the Innocence Protection Act, which included the Kirk Bloodsworth Post-Conviction DNA Testing Program to help those already convicted obtain DNA testing in their cases. This landmark legislation demonstrates our society’s growing belief in the importance that the wrongfully convicted should obtain justice. In the face of this altered landscape, one would think that the Supreme Court would be compelled to find that a conviction of an actually innocent person does state a constitutional claim.
While Herrera concerned the execution of an innocent person, it would seem that actual innocence claims should apply with equal force in the non-capital context. It clearly is no less tolerable in our society that someone should be incarcerated and further punished based on a conviction for which he is actually innocent.
Once again, this type of actual innocence claim must be distinguished from the so-called "gateway" innocence claim in a habeas petition. In a habeas corpus proceeding, a state procedural default is not a bar to habeas relief where a compelling claim of actual innocence is made. In Schlup, the Supreme Court defined the standard for assessing this type of gateway actual innocence claim. The showing needed to meet this gateway claim would probably be lower than it would be for a hypothetical free-standing actual innocence claim. Schlup, 513 U.S. at 316.
Recently, in House v. Bell, the Supreme Court found that the petitioner had met the standard for a gateway actual innocence claim. House, 126 S. Ct. at 2078-86. The Court acknowledged that it remained an open question as to whether a free-standing actual innocence claim is possible under the U.S. Constitution. Id. at 2086-87. The Court refused to answer this question, stating that whatever burden a hypothetical free-standing actual innocence claim would require, the petitioner had not met it. Id. at 2087.
Thus, there have been strong indications that the Court will find that the claim exists. But it really is not clear under what constitutional right it would fall. But I guess that doesn't matter so long as it exists somewhere in the Constitution. As I stated in my earlier post, the conundrum is that this right is not clearly established, so getting habeas relief on the claim will require jumping over some major hurdles. That's why allowing Davis to present his claims to a court is based more on doing what's right, than doing what's possible at this point legally.
But the federal claim is not the only way to go. Now we are moving out of habeasland and into the state post-conviction world, but it's important to discuss this stuff.
Two courts in New York have concluded that an actual innocence claim exists under the State Constitution found that such a claim does indeed exist. 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).
Cole explained why the right exists, so I'll discuss that one and skip Wheeler-Whichard, even though W-W is a pretty interesting case factually.
In Cole, the defendant raised an actual innocence claim in a 440 motion based on a variety of "newly discovered evidence," none of which was DNA evidence. After finding that the analysis in Herrera precluded a federal constitutional actual innocence claim, the court held that such a claim exists under the state constitution. Id. at 537-39.
First, the court found that the state constitution provides greater rights to criminal defendants than the federal constitution. Cole, 1 Misc. 3d at 541. These expanded rights were granted to an accused in order to protect an innocent person from improper conviction. Id. For example, it noted that the broader right to counsel was to insure that "the innocent go free." Id. There is a right to indictment by Grand Jury supposedly to protect and innocent suspect from false accusation. Id. The constitutional right to be present is to allegedly protect the innocent. Id. The constitutional bar against the introduction of suggestive procedures is to diminish the risk of convicting the innocent through tainted identification procedures. Id.
The Cole court further stated that the Court of Appeals has recognized that the function of a criminal prosecution and the interest of society is to convict the guilty and to acquit the innocent. Cole, 1 Misc. 3d at 541. Further, it found that an essential part of the State Constitution is to guarantee that the guiltless are acquitted. Id.
The court held that the conviction or incarceration of a guiltless individual violates the Due Process Clause under Article I, § 6 of the New York State Constitution, in that it violates elemental fairness and deprives that person of freedom of movement and freedom from punishment. Cole, 1 Misc. 3d at 541-42. It also held that punishing an innocent person is disproportionate to that person's conduct in violation of the Cruel and Unusual Punishment Clause under Article I, § 5 of the New York State Constitution. Id. at 542.
The Cole court concluded that “a movant making a free-standing claim of innocence must establish by clear and convincing evidence (considering the trial and hearing evidence) that no reasonable juror could convict the defendant of the crimes for which the petitioner was found guilty.” Cole, 1 Misc. 2d at 543.
Thus, while it remains an open question under the Federal Constitution, there is good reason to believe that under the State Constitution, a defendant can raise an actual innocence claim.