Innocent After Proven Guilty: The Developing Role of Actual Innocence in Habeas Corpus Jurisprudence by Phillip Weiss


The death penalty is a punishment that is unique in its severity and finality.  There is no other punitive measure within our criminal system that can truly deprive an individual of their “last chance” like the ultimate penalty, being put to death.  The question whether there should be a death penalty in this country is a hotly debated topic.  However, there is one point which should seem clear to any reasonable mind: if this country does continue to allow capital punishment, it must be administered in a manner that will prevent wrongfully convicted, innocent defendants from being executed.

Strangely, our criminal justice system has no clearly defined method for dealing with convicted defendants who claim that newly discovered facts can establish their innocence.  In recent years, however, courts have begun to grant certain types of relief to defendants who can convincingly demonstrate their innocence.  This note will track the development of the innocence claim as a means of post conviction relief.

  1. A. The rise of the actual innocence claim: The history through case law.

In 1977, the Supreme Court, in Wainright v. Sykes,[1] held that a federal court cannot hear a habeas corpus claim that could have been made in a state court but was procedurally defaulted.  This rule became known as the “default doctrine.”  The aim of the doctrine was to demonstrate respect for state courts.[2] The doctrine would achieve this objective by preventing defendants who have failed to comply with state court procedural rules, from circumventing any procedural bars on their claims by merely petitioning for Habeas Corpus in a federal court.[3] The doctrine allowed for federal review of procedurally defaulted habeas claims, when the claimant could show “cause” for the default and “prejudice from the asserted error.[4]

While defining the exact parameters of the “cause and prejudice” standard, in Murray v. Carrier,[5] the Court noted another situation in which it would allow habeas petitioners to bypass the default doctrine.  The Court stated that in “extraordinary cases,” where defendants can demonstrate a strong likelihood that they are innocent and were wrongfully convicted due to some constitutional error, a federal court may grant a writ of habeas corpus that would otherwise be barred by the default doctrine.[6] This means of circumventing the default doctrine became known as the “actual innocence gateway claim.”  In Schlup v. Delo,[7] the Court more clearly defined the standard for actual innocence, in ruling that “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”[8] This line of cases marks the beginning of the Court’s willingness to adopt actual innocence claims as an established basis for relief.

  1. The actual innocence claim as grounds for equitably tolling AEDPA’s statute of limitations.

Aside from the default doctrine, there are other procedural bars that courts have allowed habeas petitioners to bypass, on the basis of establishing their innocence.  In 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act (AEDPA) act, which implemented a one-year statute of limitations on habeas petitions being brought by convicted defendants.[9] In very specific circumstances, courts have subjected this statute to equitable tolling, which is a doctrine that allows courts to toll a period of limitations that has already run when rigid adherence to the limitations period would be unfair.  Several circuit courts have considered whether to equitably toll AEDPA’s statute of limitations for petitioners who can establish their own innocence.  

The circuit that has come out most strongly in favor of tolling the statute, when innocence can be established, is the Sixth Circuit.  In Souter v. Jones[10], the defendant, Larry Souter, was convicted of second-degree murder, and upon conviction, he brought a habeas petition in the Western District of Michigan.[11] Souter put forth an innocence claim based on evidence whose existence was unknown at the time of trial.[12] In light of this newly discovered evidence, the Sixth Circuit held that Souter made an adequate showing of actual innocence, and that this claim of actual innocence was grounds for equitably tolling AEDPA’s statute of limitations.[13] In addition to the Sixth Circuit, the Tenth Circuit has also explicitly stated that actual innocence would be a grounds for equitably tolling AEDPA’s statute of limitations.[14]

The Eleventh, Ninth, Second, and Third Circuits have all had petitioners with unconvincing claims of innocence come before them, and each of these courts declined to decide whether an actual innocence claim would entitle a petitioner to equitable tolling, until a petitioner comes before them who can make a legitimate showing of actual innocence.[15] While an inference to the contrary is not illogical, one could reasonably take these opinions to mean that these circuits may very well be willing to grant equitable tolling to actually innocent petitioners, but, understandably, these courts wish to hold off announcing new law, until there are facts before them to which the new law would apply.

  1. C. Freestanding innocence:  Waiting for its recognition.

Although the actual innocence claim has been gaining traction amongst courts, the way in which the claim works seems somewhat counterintuitive.  Even when habeas petitioners convincingly demonstrate their innocence, this demonstration does not actually earn them an acquittal.  Rather, these petitioners are merely given the opportunity to bring an additional claim of procedural or constitutional error that, but for their showing of innocence, would be barred by the default doctrine or AEDPA’s statute of limitations.

The Supreme Court, in Herrera v. Collins,[16] has said that it may be willing to grant complete relief based solely on an innocence claim, regardless of an accompanying claim of constitutional error, but the threshold for this showing of innocence would have to be “extremely high.”[17] To date, the Court has never found that a petitioner meets the demanding standard set forth in Herrera, although recent events indicate that this may soon change.  Recently, a new petitioner has come before the Court seeking relief based entirely on claims of his innocence, and it appears as if the Court may be ready to recognize this claim as a basis for relief.  The name of this most recent habeas petitioner is Troy Davis and he has been sentenced to death for murdering a police officer in Georgia.[18] The prosecution’s case was almost entirely based upon witness testimony and in 2001, Davis produced affidavits demonstrating that seven out of the nine witnesses who had testified against him had recanted their testimony.[19] Several of the recanting witnesses claim that the reason for their original testimony was that they had been coerced by the police to testify against Davis.[20] This evidence was enough to achieve what may end up being a landmark victory for future innocence claimants, as the Supreme Court remanded the Troy Davis case to a Georgia District Court in order for the District Court to determine whether the new evidence adduced by Davis is enough to establish his innocence.[21] If the Federal District Court finds that Davis has made a convincing showing of innocence then it seems likely that the Supreme Court will acquit Davis of the charges against him, thus, making Davis the first innocence claimant to meet the demanding standard set forth in Herrera.

However, although Davis’s innocence claim is a fairly convincing one, as recently as two years ago, the Court, in House v. Bell,[22] held that the seemingly convincing innocence claim of the defendant, Gregory House, could not meet the demanding standard set forth in Herrera.[23] One must wonder why Davis’s innocence claim has found more favor in the eyes of the Court than that of House, whose innocence claim appeared to be no less convincing than the one put forth by Davis.  Perhaps theses two cases received such different treatment because there has finally been a shift in the way the Court views innocence.  As the law stands today, the only time an innocence claim will be effective is when it is accompanied by a claim of procedural error.  This current state of the law is most probably a product of the faith our country has in its jury system.  In order to believe that our penal system works, we must assume that if a jury of our peers renders a decision at a fair trial, this decision must be correct.  To say otherwise would call into question the very bedrock of our criminal justice system.  This is why innocence claims function the way they currently do: If there is a procedural defect at trial, then, and only then, is it possible that the trial could have produced an erroneous outcome.  If, however, there is no procedural error being alleged then how can evidence of innocence adduced after trial make a difference?  The defendant has already been found guilty by the justice system, and if the justice system is to have any validity, then jury verdicts must be seen as producing accurate results.

In reality, however, even a procedurally flawless trial can produce erroneous verdicts.  Hindsight has proven that juries of our peers are just that: everyday fallible people who are as capable of mistake as any other human being.  It is time for our criminal court system to acknowledge that even if every last one of its procedures is adhered to, it can still “get the wrong guy.”  Denying that this is a possibility will not remedy the situation.  What would go a great distance toward remedying the situation would be for the Court to unequivocally declare that the execution or continued imprisonment of a defendant whose innocence can be proven is unconstitutional.  Only when courts are willing to recognize their own errors and allow for those errors to be remedied can we truly refer to our countries penal infrastructure as a justice system.

[1] 433 U.S. 72 (1977).

[2] Joseph L. Hoffman,  House v. Bell and the Death of Innocence, 460, Foundation Press (2009).

[3] Id.

[4] 433 U.S. 72 (1977).

[5] Murray v. Carrier, 477 U.S. 478 (1986).

[6] Murray at 496.

[7] 513 U.S. 298 (1995).

[8] Id. at 327.

[9] Anti Terrorism and Effective Death Penalty Act of 1996,  28 U.S.C. § 2244.

[10] 395 F.3d 577 (6th Cir. 2005).

[11] Id. at 583.

[12] Id. at 591-92.

[13] Id. at 590.

[14] Gibson v. Klinger, 232 F.3d 799, 808  (10th Cir. 2000) (noting that it would be proper to equitably toll AEDPA’s statute of limitations when the “prisoner is actually innocent.”).

[15] Horning v. Lavan, 2006 WL 2805608 (C.A. 3 2006); Sibley v. Culliver, 377 F.3d 1196  (11th Cir. 2004); Doe v. Menefee, 391 F.3d 147( 2nd Cir. 2004).;. Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002).

[16] 506 U.S. 390 (1993).

[17] Id. at  417.

[18] NAACP Summary of the Troy Davis Case,

[19] Id.

[20] Id.


[22] 547 U.S. 518 (2006).

[23] The defendant convincingly discredited all of the prosecution’s forensic evidence, and  brought witness testimony stating that a suspect other than the defendant had admitted to the crime. See Id. at 543-53.

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