Last week, in a 5-4 decision, the Supreme Court decided McQuiggin v. Perkins.* The Court held that a Schlup gateway “actual innocence” showing can overcome the one-year statute of limitations time bar. Ginsburg wrote the (nice) majority opinion and Scalia wrote the (troubling) dissent.
*As I was adding the link, I just realized that McQuiggin (kind of) rhymes with Chief Wiggum. Can't say that about the parties in too many S.Ct. decisions. Alas, the shorthand for the case technically should be Perkins, as McQuiggin is the name of the warden. I am guessing, though, that more people will refer to this case as "McQuiggin" rather than "Perkins".
The majority's opinion is a satisfying result for habeas fans. It’s completely consistent with the equitable principles of habeas law. It’s also consistent with the way that the rest of habeas law is structured, as an actual innocence claim can be used to overcome any other procedural shortcoming.
Important to note what exactly the Court did hold here: there is an actual innocence exception to the statute of limitations. It stands on its own as it's own procedural thing. As a habeas attorney pointed out to me at one point, the petitioner in this case mistakenly argued that actual innocence could be ground on which the time limit could be equitably tolled. But that’s not what’s going on here. Equitable tolling is one exception. Actual innocence is another. They are now two separate exceptions available to a habeas petitioner. A petitioner can rely on actual innocence to get over the timeliness hump even if there are no grounds to equitably toll the limitations period.
Another important part of the opinion was that the Court concluded that, unlike equitable tolling, there is no diligence requirement. Rather, any argument about the staleness of the innocence evidence or the length of time it took a petitioner to either find the evidence or present it to a court is simply a factor to weigh in determining the strength of petitioner’s claim of actual innocence. In fact, as the Sixth Circuit held below, a diligence requirement for this type of claim is completely illogical. It was really nice to read the Court actually agreeing with something the Sixth Circuit had said.
One interesting note is that the petitioner won on the law, but lost the case. The Court deferred to the district court’s conclusion that his showing was insufficient to meet the Schlup standard. As a lawyer, it’s an odd feeling to get this type of opinion. You feel good that you were right on the law, but you feel horrible that you lost the case. And the loss dulls whatever excitement you may have had that you were right. At least short term. With some perspective and time, it becomes easier to say that at least I made good law for other people, even if it didn’t help my client. It’s probably toughest on the ego, though, as it actually does count as a loss.
Speaking of the loss column, let’s talk about the dissent. It really is a p.r. disaster for the anti-habeas crowd. It’s a tough sell to a lay person that it's okay for someone who can prove their innocence to have to rot in jail. I have seen many people in the media frame it that way. It just makes these judges appear cruel. I guess you have to hand it to the dissenters, they don’t care about how they look in the public eye. But it’s exactly what I felt when Scalia dissented from the denial of cert. in Cash v. Maxwell (one of those cases where the system clearly went horribly off the tracks) – is this really a situation where the judges want to take a stand against the habeas petitioner? The equities clearly are on the side of the petitioner.
But beyond the p.r. mess, I didn’t really find the arguments in the dissent that persuasive. Scalia’s main claim is that this is the first time that the actual innocence exception has been applied to a statutorily created procedural hurdle, as opposed to a judge-created procedural hurdle. It boils down to an accusation of judicial activism. But it’s a pretty hollow complaint. While his argument, on its own terms, is hyper-technically accurate, it’s not really accurate in the grand scheme of things. Exhaustion is part of the statute, and actual innocence can be used to overcome a procedural default along the way to exhausting a claim. While one step removed, it’s really not that different logically. And of course the irony is that the Supreme Court has been highly active for years in creating procedural rules that don’t exist in the statute. Because equity and fairness (in most situations to the State and its courts). But these concerns obviously can go in the other direction, and the majority was relying upon these principles to make a ridiculously harsh statute more equitable.
To note, Scalia even has to acknowledge that the Court has already created an exception to the statute of limitations, namely equitable tolling. He differentiates it from actual innocence in that equitable tolling has been around for a long time. Yawn. The actual innocence exception to overcome procedural hurdles has been around for years, and is as old as many of the procedural hurdles that the Court has created. Further, innocence has always been at the heart of modern habeas law – meaning for over 60 years. And, once again, equity and fairness. That’s why equitable tolling typically is allowed for a statute of limitations. It’s the exact same reason the actual innocence exception has now been allowed by the Court in the habeas context -- the imprisonment of an innocent person is one of the greatest inequities that our society faces.
But I haven’t even reach the real cynical part of the dissent. For years, I have been joking on here that much of what the Court does seems to be motivated by nothing more than hatred for habeas corpus. I thought it was only hyperbolic. Turns out it was true.
At the end of the dissent, Scalia launches into an anti-habeas diatribe (so extreme that Alito won’t even join it). He states:
It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA's pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims. "[F]loods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones." Id., at 536-537.
The "inundation" that Justice Jackson lamented in 1953 "consisted of 541" federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C-2). Today's decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints.
Talk about blaming the victim. The only reason that habeas is somehow “creaking at its rusted joints” is because Justice’s like Scalia broke it with those “byzantine” procedural hurdles. It’s like the current Republicans in Congress complaining that government doesn’t work after they cut the funding necessary to make the Government work.
Really, he is just unhappy that the Court breathed a small bit of life into habeas. And it really is a very tiny bit. But at least it’s something.
I’ll just close by saying this: This blog has been around for over four years now and we have seen plenty of examples on here of why habeas review remains a vital and necessary element of the criminal justice system. And contrary to what Scalia suggests, I will say as a full-time habeas litigator that meritorious habeas cases are not prejudiced from a flood of stale habeas petitions. Not in the least. They are prejudiced – solely – from the harsh standards of the AEDPA, which has ensured that many constitutional violations do not get remedied. Get rid of the AEDPA and you will see a miraculous disappearance of, not just the creaking, but also the rust from the joints -- and fast. If only Billy Mays was still around to sell this simple remedy.