Habeas corpus - limited review for actual innocence.

AuthorBreuer, Jennifer R.
PositionSupreme Court Review - Case Note

    In Herrera v. Collins,(1) the United States Supreme Court held that absent an accompanying constitutional violation, a claim of actual innocence by a death penalty petitioner is not grounds for federal habeas corpus relief. Although Chief Justice Rehnquist, writing for the majority, refused to authorize review of Herrera's claim, he disposed of the case by assuming, arguendo, that the Constitution would prohibit the execution of a petitioner who made a truly persuasive showing of actual innocence. The Court offered neither a constitutional rationale for its hypothetical treatment nor a standard by which evidence of actual innocence would be measured. This Note examines the history of federal habeas corpus review and argues that the Court logically extended precedent in a manner consistent with its current position on federal habeas corpus: habeas relief is to be granted only in cases of egregious procedural error in order to encourage the finality of state court decisions.

    This Note further argues that the Court's hypothetical argument is in line with recent decisions that make available narrow exceptions for substantive review in truly extraordinary circumstances. Finally, this Note argues that a truly compelling showing of actual innocence would require the Court to adopt a substantive interpretation of habeas relief in order to justify its review of the claim.



      The "Great Writ" of habeas corpus, "the most celebrated writ in the English Law,"(2) offers protection against "illegal restraint or confinement."(3) Habeas corpus relief is based in the principle "that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release."(4) Habeas corpus protection originated at common law(5) and is guaranteed by the Constitution, which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion the public Safety may require it."(6) In addition, Congress created a habeas remedy for federal prisoners held "in custody, under or by colour of the authority of the United States" in its first grant of jurisdiction to the federal courts in 1789.(7)

      Initially, habeas protection existed only for cases in which the legal process leading to imprisonment(8) or the jurisdiction of the sentencing tribunal(9) were challenged. In 1867, Congress extended federal habeas corpus protection to prisoners held in state custody.(10) The Court noted that the congressional act "brings within the habeas corpus jurisdiction of every court and of every judge every possible case of [de]privation of liberty contrary to the National Constitution, treaties or laws. It is impossible to widen this jurisdiction."(11)

      Despite the stated expansion, habeas protection continued to be applied only to cases in which the defendant alleged that the sentencing court lacked personal or subject matter jurisdiction.(12) The Court extended the reach of federal habeas review during the later part of the nineteenth century, however, by changing the circumstances under which the lack of state court jurisdiction could be found.(13) Even after this shift, federal habeas courts sat not as fact finders but as guarantors of fundamental constitutional rights. Justice Holmes noted that "what we have to deal with [on habeas review] is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved."(14) In Hyde v. Shine,(15) the Court further articulated its position on evidentiary review when it held that "[i]n the Federal courts.... it is well settled that upon habeas corpus the court will not weigh the evidence, although if there is an entire lack of evidence to support the accusation the court may order his discharge."(16)

      In 1915, the Court dramatically increased the scope of habeas corpus in Frank v. Mangum,(17) in which the Court held that habeas relief is available whenever the state, "supplying no corrective process, . . . deprives the accused of his life or liberty without due process of law."(18) The Warren Court continued this shift toward increased availability of habeas corpus in the next phase of habeas litigation after World War II.(19) Among the issues decided by the Warren Court were which claims could be heard upon habeas corpus. In Fay v. Noia,(20) the Warren Court set the standard that a claim not raised in state court could be raised before a habeas court as long as the petitioner had not deliberately bypassed state procedural rules. The Court created this "deliberate bypass" rule because "a forfeiture of remedies does not legitimize the unconstitutional conduct by which [a] conviction was procured."(21)

      In keeping with its expansive interpretation, the Warren Court also authorized federal courts to engage in fact-finding independent of the state court upon habeas review. Townsend v. Sain(22) involved a challenge to a murder conviction based on a confession obtained after the police had injected the defendant with "truth serum."(23) The Court held that federal courts are required to hold factual hearings when facts are in dispute or when the defendant did not receive a full and fair hearing in state court.(24) Specifically, the Court held that a federal court must grant an evidentiary hearing to a habeas applicant when:

      (1) the merits of the factual dispute were not resolved in the state hearing;

      (2) the state factual determination is not fairly supported by the

      record as a whole; (3) the fact-finding procedure employed by the state

      court was not adequate to afford a full and fair hearing; (4) there is a

      substantial allegation of newly discovered evidence, (5) the material facts were

      not adequately developed at the state-court hearing; or (6) for any reason

      it appears that the state trier of fact did not afford the habeas applicant

      a full and fair fact hearing.(25) The Court suggested that deference should be paid to a state court's fact-finding; new evidentiary hearings should be held only if there is reason to doubt that the habeas applicant had a fair hearing that resulted in reliable findings.(26) For the first time, however, federal courts were required "to engage in independent fact-finding under specific circumstances."(27)

      The Townsend Court elaborated upon its position relating to newly discovered evidence. The Court explained that federal courts must grant an evidentiary hearing when newly discovered evidence related to the constitutionality of a petitioner's detention is alleged.

      Where newly discovered evidence is alleged in a habeas application,

      evidence which could not reasonably have been presented to the state

      trier of facts, the federal court must grant an evidentiary hearing. Of

      course, such evidence must bear upon the constitutionality of the applicant's

      detention; the existence merely of newly discovered evidence

      relevant to the guilt of a state prisoner is not a ground for relief on

      federal habeas corpus. Also, the district judge is under no obligation

      to grant a hearing upon a frivolous or incredible allegation of newly

      discovered evidence.(28)

      Since Townsend, however, the Court has substantially narrowed the ability of death row inmates to obtain habeas review. The Burger Court adopted a standard very different than the "deliberate bypass" criteria articulated in Fay. In Wainwright v. Sykes,(29) the Burger Court held that a habeas petitioner must show "cause" for not having proceeded in state court and "prejudice" by not being allowed a federal court hearing before a claim that was not presented in state court will be heard.(30) In Murray v. Carrier,(31) the Court recognized an exception to the "cause and prejudice" standard for "extraordinary case[s], where a constitutional violation has probably resulted in the conviction of one who is actually innocent ...."(32)


      The "actual innocence" exception, also referred to as the "fundamental miscarriage of justice" exception, stems from the language of the federal habeas statute,(33) which, prior to amendment in 1966, allowed a judge to deny successive claims(34) without a hearing as long as the judge was "satisfied that the ends of justice will not be served by such inquiry."(35) Although that language was omitted in the statute's amended version, the Court retained but substantially narrowed the actual innocence exception in Kuhlmann v. Wilson,(36) its first of three habeas decisions in the 1986 term. The plurality in Kuhlmann found that "[t]he ends of justice require federal courts to entertain [successive] petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence."(37) Justice Brennan objected to this limitation in his dissenting opinion. He argued that

      [d]espite the plurality's intimations, we simply have never held that

      federal habeas review of properly presented, nondefaulted constitutional

      claims is limited either to constitutional protections that advance

      the accuracy of the fact-finding process at trial or is available

      solely to prisoners who can make out a colorable showing of factual


      Despite this objection, in Murray v. Carrier,(39) decided shortly after Kuhlmann, the Supreme Court held that the actual innocence exception to the cause and prejudice requirement applied to procedurally defaulted claims as well.(40) The Carrier Court found that defense counsel's inadvertent failure to raise a claim in a notice of appeal did not allow it to be heard on habeas review unless the error amounted to ineffective assistance of counsel.(41) Under the relevant state law, the state supreme court would hear only those issues raised in the petition for appeal.(42) Accordingly, the state supreme court had...

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