Just last week, I mentioned that the Supreme Court doesn’t have much on its habeas plate this term. Well, that changed a little Monday. The Court granted cert. in two habeas cases:
Issue: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.
(2) Trevino v. Thaler, 11-10870
Issue: Whether Martinez v. Ryan applies when a State court system allows a defendant, in some circumstances, to bring an IAC claim on appeal as opposed to requiring all IAC claims to be brought in a post-conviction proceeding
There is a circuit split on the primary issue in McQuiggin, which truly surprises, and disappoints, me. Seems like a no-brainer to me: it is an exception to every other procedural default. Why treat the statute of limitations any differently? Particularly in a situation where equitable tolling is already allowed. While the cert. grant makes me nervous, I actually think that it could go as much as 7-2 in favor of the actual innocence exception (hope I don’t have to eat those words).
The diligence issue is a much closer call. Oddly, the McQuiggin case only dealt with the diligence issue; the Sixth Circuit had previously held that the exception existed. The Sixth Circuit held in McQuiggin that there was no diligence requirement, which actually makes a lot of logical sense in this context – the whole reason why the exception is necessary is because the petitioner wasn’t diligent in filing the petition. A diligence requirement would nullify the exception in many circumstances.* The court's language actually was: "[W]e find that such a reading [which would require reasonable diligence] would render the concept of equitable tolling nugatory."
*That's a small oversimplification. I guess it could be that a habeas petitioner may not have been diligent in filing the habeas petition, but was diligent once he obtained new evidence. The only problem with such a distinction is that several courts, including the Ninth Circuit, have held that "new evidence" under the actual innocence exception does not require newly discovered evidence, but simply "newly presented" evidence (i/o/w evidence that may have always been known, but was not presented at trial). In that situation, the lack of diligence in timely filing the petition would apply equally to the actual innocence claim. If I have to guess, I'd say that this situation has the potential to pop up much more often than a "newly discovered evidence" actual innocence claim.
I am worried about the Trevino case. It will either provide reinforcement and strength to the Martinez rule (hope, hope, hope) or it will painfully limit it down to a very narrow set of circumstances. Really hard to predict at this point. The oral argument will provide a very good indication of where this is going. But my sense is that the Court will have to apply Martinez to this type of situation, or else it would give the States too big an out to avoid the effects of Martinez.