The End of Innocence? Federal Habeas Corpus Law After in Re Davis

• Citation: Vol. 27 No. 2
• Publication year: 2010

Georgia State University Law Review‌‌‌‌

Volume 27

Issue 2 Winter 2011 Article 16

1-1-2011

The End of Innocence? Federal Habeas Corpus Law After In re Davis

Joshua M. Lott

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Lott, Joshua M. (2010) "The End of Innocence? Federal Habeas Corpus Law After In re Davis," Georgia State University Law Review: Vol. 27: Iss. 2, Article 16.

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THE END OF INNOCENCE? FEDERAL HABEAS CORPUS LAW AFTER IN RE DAVIS

Joshua M. Lott*

INTRODUCTION

“This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”1 Justice Scalia may already be well known for a strict approach to statutory construction, but his dissenting statement in the 2009 Supreme Court decision, In re Davis, caused quite a buzz among national media.2 Although callous in appearance, Justice Scalia’s words provide a technically correct reading of Supreme Court precedent and federal habeas corpus law:3 actual innocence is not a recognized claim of constitutional error that would allow federal courts to review a prisoner’s habeas petition.4

A majority of the justices, however, were convinced that Troy Davis, the petitioner, held new evidence so substantial that it warranted the Court’s rarely used “original” habeas jurisdiction.5 In granting his petition, the Court cleared the way for the federal evidentiary hearing that Mr. Davis’s lawyers and advocates had been

* J.D. Candidate, 2011, Georgia State University College of Law. Special thanks to Professor Anne Emanuel for her guidance and willingness to be a constant sounding board for my ideas.

1. In re Davis, 130 S. Ct. 1, 3 (2009) (mem.) (Scalia, J., dissenting).

2. See, e.g., David Von Drehle, Troy Davis Raises Death Penalty Questions, TIME, Aug. 18, 2009, http://www.time.com/time/nation/article/0,8599,1917118,00.html; Josh Patashnik, The Troy Davis Case and Standards of Review, THE NEW REPUBLIC, Aug. 18, 2009, http://www.tnr.com/blog/the-plank/the- troy-davis-case-and-standards-review; Bill Rankin, U.S. Supreme Court Orders New Hearing for Troy Davis, ATLANTA J.-CONST., Aug. 18, 2009, http://www.ajc.com/news/u-s-supreme-court-117260.html.

3. See 28 U.S.C. § 2254(d)(1) (2006) (stating that federal habeas relief is barred unless the state court decision was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court).

4. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[T]he existence merely of newly discovered

   evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.”) (quoting Townsend v. Sain, 372 U.S. 293, 317 (1963))).

5. Davis, 130 S. Ct. at 1.

   
   

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   seeking for years.6 Justice Stevens, who wrote the Court’s only other opinion, stated in concurrence with the majority’s order that it was right to reject a line of reasoning that would theoretically justify the execution of a truly innocent person.7 The Court transferred Mr. Davis’s case to the district court for a determination of “whether evidence that could not have been obtained at the time of trial clearly establishes [the] petitioner’s innocence.”8 Until this most recent Supreme Court decision, every state and federal body that reviewed Mr. Davis’s case had concluded that the evidence was not persuasive enough to justify a new trial, evidentiary hearing, or any conclusion other than the jury’s.9

   The story behind the Court’s extraordinary decision begins in 1989 at a Burger King parking lot on a late August night in Savannah, Georgia.10 Mark MacPhail, an off-duty police officer, was working security for the restaurant when he ran outside after hearing a man scream for help.11 In the parking lot, three men surrounded Larry Young, who was bloodied and lying on the ground after a scuffle turned violent.12 As Officer MacPhail approached, shots were fired from a .38 caliber revolver, and he fell to the ground dead.13 When his body was found later, MacPhail’s gun was still in its holster, blood had filled his mouth, and bits of teeth were scattered along an adjacent sidewalk.14

   The tangled mess that followed is replete with murder mystery ambiguity: eyewitnesses with alleged motives to lie, questionable police identification procedures, ambiguous ballistics results from shell casings found at the scene, and an angry public traumatized by

   
   

   
   

6. See generally Brief for Bob Barr et al. as Amici Curiae Supporting Petitioner, In re Davis, 130 S. Ct. 1 (2009) (No. 08-1443) [hereinafter Brief for Bob Barr et al.]; see also Bob Barr, Editorial, Death Penalty Disgrace, N.Y. TIMES, June 1, 2009, at A21 [hereinafter Barr Death Penalty Editorial].

7. Davis, 130 S. Ct. at 1 (2009) (Stevens, J., concurring).

8. Id.

9. Brief of Petitioner at 2, In re Davis, 130 S. Ct. 1 (2009) (No. 08-1443) [hereinafter Brief of Petitioner].

10. Id. at 2.

11. Id.

12. Id.

13. Id.

14. Brief of Respondent at 17, In re Davis, 130 S. Ct. 1, (2009) (No. 08-1443) [hereinafter Brief of Respondent].

    
    

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    the loss of a public servant.15 In the end, nine eyewitnesses identified Troy Davis as the gunman.16 Despite his claim of innocence, Mr. Davis was convicted of malice murder, and on August 30, 1991, he was sentenced to death.17 To this day, Troy Davis has maintained his innocence; in fact, he continues to assert that Redd Coles, one of the State’s nine witnesses, fired the gun that ended Mark MacPhail’s life.18 After years of unsuccessful attempts, Mr. Davis’s defense team convinced the Supreme Court that his new evidence of innocence coupled with the recantations from seven of the eyewitnesses demanded a reexamination of his case.19

    Death penalty proponents and abolitionists,20 jurists and politicians across the political spectrum,21 and Troy Davis supporters22 all heralded the Supreme Court’s decision as an answer to their call for a more fair and flexible judiciary, but In re Davis actually invites serious doubt about such an assumption.23 Although the Court appears to acknowledge that a truly persuasive claim of actual innocence in a capital case exposes a gap in current law, Davis fails to provide a legitimate method to fill this gap.24 The substantive and procedural components of federal post-conviction law are aimed at ensuring limited judicial review and granting relief only when a state

    
    

    
    

15. See generally id.; Brief of Petitioner, supra note 9.

16. Brief of Petitioner, supra note 9, at 2.

17. Brief of Respondent, supra note 14, at 4 (citing Davis v. State, 426 S.E.2d 844 (1993)).

18. Brief of Petitioner, supra note 9, at 2.

19. Id. at 2–9.

20. See, e.g., Amnesty International USA, Troy Davis: Finality Over Fairness, http://www.amnestyusa.org/death-penalty/troy-davis-finality-over-fairness/page.do?id=1011343 (last visited Oct. 13, 2010); Barr Death Penalty Editorial, supra note 6 (“I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional.”).

21. Brief for Bob Barr et al., supra note 6 (listing twenty-seven different politicians, prosecutors, and members of the judiciary).

22. Amnesty International USA, supra note 20 (listing activists across the world who have joined in supporting Troy Davis).

23. See Herrera v. Collins, 506 U.S. 390, 404–05 (1993) (holding that petitioner must supplement his

    innocence evidence with a cognizable claim because actual innocence alone does not warrant habeas relief); see discussion infra Parts I.B.1, II.B.

24. See Herrera, 506 U.S. at 400–06. The Supreme Court has never decided the burden of proof

    required for habeas relief in a substantive claim of actual innocence. In re Davis, 130 S. Ct. 1, 2 (2009) (mem.) (Scalia, J., dissenting).

    
    

    
    

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    court judgment is unconstitutional.25 Indeed, without some other independent constitutional violation, post-conviction claims of factual innocence alone have never qualified as a basis for habeas relief.

    Under current law, Mr. Davis’s request for a federal evidentiary hearing should have been denied outright. The Court’s decision to bypass these statutory and constitutional requirements raises a multitude of questions in the ongoing debate over how capital punishment is administered and reviewed in the United States. With no majority opinion, however, and no guidance other than Justice Stevens’s hypothesis as to how lower courts, if persuaded, might

    circumvent the statutory language controlling habeas relief,26 the

    decision could possibly upset decades of precedent, federal law, and federalism principles.27 In the absence of such direction, In re Davis may be nothing more than a hollow attempt at reconciling a very serious moral crisis—one that potentially fails the victims in whose name capital punishment is justified, or worse, result in the execution of a truly innocent petitioner. Indeed, Judge William T. Moore, Jr., of Georgia’s Southern district, had the difficult task of unraveling these “innocence” ambiguities in Mr. Davis’s case. After hearing all the evidence in the much-anticipated June 2010 hearing, Judge Moore concluded that while actual innocence is a valid constitutional claim, Mr. Davis had failed to “clearly” establish his innocence.28

    
    

    
    

25. 28 U.S.C. § 2254(d)(1) (2006); see also Sara Rodriguez & Scott J. Atlas, Habeas Corpus: The Dilemma of Actual Innocence, 34 LITIG. 35, 36 (Winter 2008) (“[T]he writ of...