How wide should the actual innocence gateway be? An attempt to clarify the miscarriage of justice exception for federal habeas corpus proceedings.

• Author: Case, Jennifer Gwynne

"The criminal goes free, if he must, but it is the law that sets him free." (1)

TABLE OF CONTENTS INTRODUCTION I. HABEAS CORPUS GENERALLY A. Historical Context B. The Requirements of the AEDPA and the Resulting Effect on Petitions for Federal Habeas Corpus C. Additional Reasons To Clarify the Standard for Relief Based on a Claim of Actual Innocence II. THE STATE OF THE LAW ON THE ACTUAL INNOCENCE EXCEPTION TODAY A. The Gateway: An Exception to Showing Cause and Prejudice B. The Schlup Decision C. The Resulting Split Among the Circuits D. The Supreme Court's Failure To Clarify III. THE "NEWLY DISCOVERED" VERSUS "NEWLY PRESENTED" STANDARDS A. Suggestions from Prior Decisions 1. Justice O'Connor's Concurring Opinion in Schlup 2. Recognition of the Importance of O'Connor's Concurrence in Griffin v. Johnson 3. Implications of the Courts' Emphasis on the Strictness of the Standard 4. The Specific Wording Used by the Court in Schlup B. Policy Concerns 1. Technology in the Courtroom 2. Counsel's Obligation To Use Due Diligence 3. The Interest in Finality and Comity 4. The Ever-Present Interest in Justice IV. INSIGHT FROM STATE LAW V. THE SOLUTION: UNIFORM ADOPTION OF THE "NEWLY DISCOVERED" STANDARD INTRODUCTION

Despite its numerous constitutional and statutory safeguards, the criminal justice system in America is far from perfect. Juries unfortunately convict individuals of crimes they did not commit. Take, for instance, the story of Beverly Monroe. Monroe's freedom was taken away on November 2, 1992, when a jury found her guilty of murdering her long-time boyfriend. (2) On March 5, 1992, Monroe discovered her boyfriend dead with a gun in his hand. (3) The prosecution immediately focused on Monroe, despite the lack of forensic evidence connecting her to the murder and the fact that she had a legitimate alibi. (4) Monroe served nearly seven years of her sentence before a district judge granted her freedom in a federal habeas corpus proceeding, finding that the prosecution had suppressed material, exculpatory evidence. (5) On March 26, 2003, the Fourth Circuit affirmed the grant of habeas relief. (6)

Monroe's case is an exceptional one, and cases such as hers are becoming fewer and farther between, especially with relatively recent technological advances in forensic evidence, such as DNA testing. (7) The possibility for wrongful conviction, however, is nevertheless present in America, and the courts of this country take this risk seriously. (8) Due to this ever-present risk, post-conviction procedures are elaborate and attempt "to ensure not only that a trial was fair, but also that no individual has been wrongly convicted." (9) This Note addresses a very specific procedure for relief on the ladder of postconviction safeguards: the actual innocence gateway, an exception to the doctrine that a procedurally barred petitioner may not petition for federal habeas relief without a showing of cause and prejudice. (10) The Monroe court did not base its decision on this exception because of the success of Monroe's Brady claim, (11) but a failure to satisfy a procedural requirement below may have likely led Monroe's counsel to attempt to utilize the actual innocence exception before a federal habeas court. Though cases like Monroe's are relatively uncommon, it is nonetheless important for petitioners to understand the processes and procedures along the postconviction pathway as they make their arguments for habeas relief.

Habeas corpus is the primary method for state prisoners to challenge the legality of their convictions in federal court, (12) and various policies, values, and considerations come into play during a federal habeas proceeding. (13) Among these considerations is the underlying notion that '"habeas corpus is, at its core, an equitable remedy." (14) But this remedy can also be a powerful tool for individuals convicted of crimes to challenge the decision handed down by a jury of their peers and affirmed by numerous courts on appeal. (15) After conviction, habeas petitioners do not enjoy a presumption of innocence, as they are no longer merely individuals accused of a crime. (16) To the contrary, having been found guilty beyond a reasonable doubt, the habeas petitioner faces the court with a strong presumption of guilt. (17)

Federal courts allow state prisoners to bypass procedural bars and petition for federal habeas relief when they have claims based on their actual innocence. (18) The Supreme Court articulated the evidentiary standard for claims of actual innocence in habeas petitions in Schlup v. Delo. (19) Habeas petitioners must "support [their] allegations of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial." (20) Since the Schlup decision, lower courts have wrestled with interpretations of the seemingly simple adjective "new." In fact, these interpretations have produced a split among the circuits on the issue of "whether Schlup requires 'newly discovered' evidence or merely 'newly presented' evidence." (21)

This Note posits that the actual innocence standard for presenting new evidence to a habeas court should be further narrowed to exclude "newly presented" evidence. The gateway to the petitioner's constitutional habeas claims should be limited by a prerequisite that the petitioner present "newly discovered" evidence to support a claim of actual innocence. Part I of this Note discusses relevant background information on the writ of habeas corpus, including the specific requirements imposed on habeas petitioners by federal legislation. Part II addresses the current state of the law regarding the actual innocence exception in federal habeas corpus cases. Part III compares the "newly discovered" standard with the "newly presented" standard based on case law and policy concerns surrounding habeas corpus relief. Part IV briefly examines three states' approaches to dealing with the issue for additional guidance regarding which standard of evidence should govern. Finally, Part V concludes that United States courts should adopt the uniform approach that new evidence in an actual innocence habeas claim must be "newly discovered" evidence.

1. HABEAS CORPUS GENERALLY

   1. Historical Context

      The Constitution provides that "the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (22) Since ratification of the Constitution, the writ has evolved into the procedure by which courts examine the constitutionality of the petitioner's incarceration. (23) "[T]he writ of habeas corpus [now] extends to anyone 'in custody in violation of the Constitution or laws or treaties of the United States.'" (24) A habeas court does not consider the facts of the petitioner's case or weigh evidence to determine his guilt or innocence. (25) The court's jurisdiction is restricted to constitutional issues surrounding the petitioner's detention, thus the federal judge "need only address whether the custodian has the authority to deprive the petitioner of his constitutionally-protected liberty." (26) In other words, a federal habeas petition, one of the final stages in a petitioner's appeal for relief, is an attack upon the legality of the petitioner's confinement. (27)

   2. The Requirements of the AEDPA and the Resulting Effect on Petitions for Federal Habeas Corpus

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) now governs federal habeas corpus proceedings. (28) In addition to requiring habeas petitioners to exhaust their state law remedies, (29) the AEDPA imposed four major changes regarding habeas proceedings, including a one-year time limit for filing habeas petitions. (30) Furthermore, petitioners now have a single opportunity for federal habeas review, except in extraordinary circumstances. (31) Though the constitutional right to counsel does not apply at the habeas level, (32) the AEDPA established an "opt-in" provision to allow states to decide whether to provide a petitioner with counsel in habeas proceedings. (33) Finally, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." (34) With these procedural requirements, the AEDPA has greatly inhibited the federal courts' ability to grant relief to state prisoners beyond their first habeas petition. (35) "[T]he AEDPA does not leave a lot of room for state prisoners to make their case for unlawful confinement." (36) The rigidity of the habeas requirements and possibility that a petitioner may be procedurally barred present a need for clarity in the standards to petition and receive a writ of habeas corpus from federal court.

   3. Additional Reasons To Clarify the Standard for Relief Based on a Claim of Actual Innocence

      In addition to the rigorous procedural standards required to file a petition for a writ, two other concerns warrant a resolution of the evidentiary standard required for a petitioner to fall within the actual innocence exception. A substantial number of habeas petitions come from inmates on death row, and the Supreme Court in Schlup acknowledged that the "quintessential miscarriage of justice is the execution of a person who is entirely innocent." (37) Unfortunately, these capital defendants are often indigent and frequently receive fewer due process protections than the average defendant. (38) Therefore, "the existence of a meaningful [and clear] federal habeas corpus remedy for state prisoners is especially important in death penalty cases." (39) Also troublesome is the fact that the decision whether to grant habeas relief typically rests in the hands of one judge. (40) One scholar aptly captured the essence of this concern:

      In principle ... the writ of habeas corpus...