A few weeks back, Jonathan posted the Supreme Court's cert grant in McQuiggin v. Perkins, No. 12-126. The case will not be argued until early 2013. But this week an article appeared about the case by Times court-watching superstar Adam Liptak, so I figured it would be a good time to start following it here.
The underlying case is fairly simple. Three men leave a party: two return, the third is found dead. One of the two (Perkins) is put on trial - he says the other guy did it. "Other guy" testifies that Perkins did it. The jury believes Other guy and Perkins is sentenced to life. Over the following five years, Perkins obtains affidavits from three people casting suspicion on Other guy (including one from a local dry-cleaner who remembers Other guy dropping off heavily bloodstained clothes around the tiime of the murder). Perkins then waits ANOTHER six years to file his 2254 petition.
The case deals with a question that has divided the Circuits for several years: whether a late-filing habeas petitioner seeking equitable tolling of AEDPA's 1-year limitations period needs to demonstrate his due diligence in bringing his claim even when he makes a bona fide (or "gateway") claim of actual innocence. Or, as the Question Presented puts it: "Whether there is an actual-innocence exception to the requirement that a petitioner demonstrate that "he has been pursuing his rights diligently."
The issue is superficially procedural, but the case is very important for three reasons. The one-year bar imposed by AEDPA in 1997 still catches many prisoners unawares, so equitable tolling cases come up fairly often. And the law in this area is still fluid: one of AEDPA's ironies is that a limitations period designed to cut the habeas workload of the federal courts in practice spawned an entirely new habeas subspecialty dealing with exceptions to the one-year bar.
Most importantly though, the issue invokes a deep tension running through postconviction law in general. On the one hand, no lawyer (and certainly no Supreme Court Justice, except maybe J. Scalia) is comfortable with the idea of tossing a credible claim of innocence simply because it was filed late. As the pace of exonerations grows, so too does this discomfort. On the other hand, a broad "actual innocence exception" credibly threatens to swamp the general rule of due diligence. As the amicus brief of ten states bluntly puts it: "unscrupulous prisoners falsely claim that they are innocent all the time.” Even more would do so in order to get their late claims heard under the proposed exception.
Given the importance of the issue, it's not surprising the Supreme Court decided to hear it. And the Court likely wants to provide some consistent guidance. It's prior discussions of actual innocence are hardly consistent. In House v. Bell, 547 U.S. 518 (2006), the Court suggested that gateway actual innocence claims are not subject to any "additional requirements.” Other cases, such as Holland v. Florida, 130 S. Ct. 2549 (2010), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), indicate that "those seeking equitable tolling must, in general, pursue their claims with reasonable diligence.”
Liptak raises an interesting possibility: the Court could find that Perkins actually was dilligent. The State points out in its cert petition that Perkins "has never argued that he was diligent in waiting six years . . . until filing his habeas petition." But Liptak refers to district court filings in which Perkins contends that he was hampered in his efforts when prison staff destroyed his personal property "following petitioner’s involvement in inciting a riot." Perkins also contended that he "was denied access to the law library and law materials while he was held in solitary confinement" for almost five years.
I don't think the Court will go this route. It is true that the evaluation of due diligence must not “ignore the reality of the prison system,” Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000). But Perkins has had many chances to substantiate his due diligence claims and yet has apparently not done so. More importantly, it is unlikely that the Supreme Court will avoid settling the Circuit split. A finding of due diligence would make any answer to the QP obiter dictum.
More to come on this interesting case. . . .