OCTOBER TERM, 1992
Syllabus
HERRERA
v. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 91-7328. Argued October 7, 1992-Decided January 25,1993
On the basis of proof which included two eyewitness
identifications, numerous pieces of circumstantial evidence, and
petitioner Herrera's handwritten letter impliedly admitting his
guilt, Herrera was convicted of the capital murder of Police
Officer Carrisalez and sentenced to death in January 1982. After
pleading guilty, in July 1982, to the related capital murder of
Officer Rucker, Herrera unsuccessfully challenged the Carrisalez
conviction on direct appeal and in two collateral proceedings in
the Texas state courts, and in a federal habeas petition. Ten years
after his conviction, he urged in a second federal habeas
proceeding that newly discovered evidence demonstrated that he was
"actually innocent" of the murders of Carrisalez and Rucker, and
that the Eighth Amendment's prohibition against cruel and unusual
punishment and the Fourteenth Amendment's due process guarantee
therefore forbid his execution. He supported this claim with
affidavits tending to show that his now-dead brother had committed
the murders. The District Court,
inter alia, granted his
request for a stay of execution so that he could present his actual
innocence claim and the supporting affidavits in state court. In
vacating the stay, the Court of Appeals held that the claim was not
cognizable on federal habeas absent an accompanying federal
constitutional violation.
Held: Herrera's claim of actual innocence does not
entitle him to federal habeas relief. Pp.398-419.
(a) Herrera's constitutional claim for relief based upon his
newly discovered evidence of innocence must be evaluated in light
of the previous 10 years of proceedings in this case. In criminal
cases, the trial is the paramount event for determining the
defendant's guilt or innocence. Where, as here, a defendant has
been afforded a fair trial and convicted of the offense for which
he was charged, the constitutional presumption of innocence
disappears. Federal habeas courts do not sit to correct errors of
fact, but to ensure that individuals are not imprisoned in
violation of the Constitution. See,
e. g., Moore v.
Dempsey, 261 U.
S. 86, 87-88. Thus, claims of actual innocence based on newly
discovered evidence have never been held to state a ground for
federal habeas relief
391
absent an independent constitutional violation occurring in the
course of the underlying state criminal proceedings. See
Townsend v.
Sain, 372 U. S. 293, 317. The
rule that a petitioner subject to defenses of abusive or successive
use of the habeas writ may have his federal constitutional claim
considered on the merits if he makes a proper showing of actual
innocence, see,
e. g., Sawyer v.
Whitley, 505 U. S. 333, is
inapplicable in this case. For Herrera does not seek relief from a
procedural error so that he may bring an independent constitutional
claim challenging his conviction or sentence, but rather argues
that he is entitled to habeas relief because new evidence shows
that his conviction is factually incorrect. To allow a federal
court to grant him typical habeas reliefa conditional order
releasing him unless the State elects to retry him or vacating his
death sentence-would in effect require a new trial 10 years after
the first trial, not because of any constitutional violation at the
first trial, but simply because of a belief that in light of his
new found evidence a jury might find him not guilty at a second
trial. It is far from clear that this would produce a more reliable
determination of guilt or innocence, since the passage of time only
diminishes the reliability of criminal adjudications.
Jackson v.
Virginia, 443 U. S. 307,
Ford v.
Wainwright, 477 U. S. 399, and
Johnson v.
Mississippi, 486 U. S. 578,
distinguished. Pp.398-407.
(b) Herrera's contention that the Fourteenth Amendment's due
process guarantee supports his claim that his showing of innocence
entitles him to a new trial, or at least to a vacation of his death
sentence, is unpersuasive. Because state legislative judgments are
entitled to substantial deference in the criminal procedure area,
criminal process will be found lacking only where it offends some
principle of justice so rooted in tradition and conscience as to be
ranked as fundamental. See,
e. g.,
Patterson v.
New York, 432
U. S. 197, 202. It cannot be said that the refusal of
Texas-which requires a new trial motion based on newly discovered
evidence to be made within 30 days of imposition or suspension of
sentence-to entertain Herrera's new evidence eight years after his
conviction transgresses a principle of fundamental fairness, in
light of the Constitution's silence on the subject of new trials,
the historical availability of new trials based on newly discovered
evidence, this Court's amendments to Federal Rule of Criminal
Procedure 33 to impose a time limit for filing new trial motions
based on newly discovered evidence, and the contemporary practice
in the States, only nine of which have no time limits for the
filing of such motions. Pp. 407-412.
(c) Herrera is not left without a forum to raise his actual
innocence claim. He may file a request for clemency under Texas
law, which contains specific guidelines for pardons on the ground
of innocence. History shows that executive clemency is the
traditional "fail safe" remedy
392
Syllabus
for claims of innocence based on new evidence, discovered too
late in the day to file a new trial motion. Pp.412-417.
(d) Even assuming, for the sake of argument, that in a capital
case a truly persuasive post-trial demonstration of "actual
innocence" would render a defendant's execution unconstitutional
and warrant federal habeas relief if there were no state avenue
open to process such a claim, Herrera's showing of innocence falls
far short of the threshold showing which would have to be made in
order to trigger relief. That threshold would necessarily be
extraordinarily high because of the very disruptive effect that
entertaining such claims would have on the need for finality in
capital cases, and the enormous burden that having to retry cases
based on often stale evidence would place on the States. Although
not without probative value, Herrera's affidavits are insufficient
to meet such a standard, since they were obtained without the
benefit of crossexamination and an opportunity to make credibility
determinations; consist, with one exception, of hearsay; are likely
to have been presented as a means of delaying Herrera's sentence;
were produced not at the trial, but over eight years later and only
after the death of the alleged perpetrator, without a satisfactory
explanation for the delay or for why Herrera pleaded guilty to the
Rucker murder; contain inconsistencies, and therefore fail to
provide a convincing account of what took place on the night of the
murders; and do not overcome the strong proof of Herrera's guilt
that was presented at trial. Pp. 417-419.
954 F.2d
1029, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J.,
filed a concurring opinion, in which KENNEDY, J., joined,
post, p. 419. SCALIA, J., filed a concurring opinion, in
which THOMAS, J., joined,
post, p. 427. WHITE, J., filed an
opinion concurring in the judgment,
post, p. 429. BLACKMUN,
J., filed a dissenting opinion, in Parts I, II, III, and IV of
which STEVENS and SOUTER, JJ., joined,
post, p. 430.
Talbot D'Alemberte argued the cause for petitioner. With him on
the brief were Robert L. McGlasson, Phyllis L. Crocker, and Mark
Evan Olive.
Margaret Portman Griffey, Assistant Attorney General of
Texas, argued the cause for respondent. With her on the brief were
Dan Morales, Attorney General,
Will Pryor, First
Assistant Attorney General,
Mary F. Keller, Deputy Attorney
General, and
Michael P. Hodge, Dana E. Parker, and
Joan C.
Barton, Assistant Attorneys General.
393
Paul J. Larkin, Jr., argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Starr, Assistant Attorney General Mueller, and
Deputy Solicitor General Roberts.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Leonel Torres Herrera was convicted of capital murder
and sentenced to death in January 1982. He unsuccessfully
challenged the conviction on direct appeal and state collateral
proceedings in the Texas state courts, and in a federal habeas
petition. In February 1992-10 years after his conviction-he urged
in a second federal habeas petition that he was "actually innocent"
of the murder for which he was sentenced to death, and that the
Eighth Amendment's prohibition against cruel and unusual punishment
and the Fourteenth Amendment's guarantee of due process of law
therefore forbid his execution. He supported this claim with
affidavits tending to show that his now-dead brother, rather than
he, had been the perpetrator of the crime. Petitioner urges us to
hold that this showing of innocence entitles him to relief in this
federal habeas proceeding. We hold that it does not.
Shortly before 11 p.m. on an evening in late September 1981, the
body of Texas Department of Public Safety Officer David Rucker was
found by a passer-by on a stretch of highway about six miles east
of Los Fresnos, Texas, a few miles north of Brownsville in the Rio
Grande Valley. Rucker's body was lying beside his patrol car. He
had been shot in the head.
At about the same time, Los Fresnos Police Officer Enrique
Carrisalez observed a speeding vehicle traveling west towards Los
Fresnos, away from the place where Rucker's body had been found,
along the same road. Carrisalez, who was accompanied in his patrol
car by Enrique Hernandez, turned on his flashing red lights and
pursued the speeding
394
vehicle. After the car had stopped briefly at a red light, it
signaled that it would pull over and did so. The patrol car pulled
up behind it. Carrisalez took a flashlight and walked toward the
car of the speeder. The driver opened his door and exchanged a few
words with Carrisalez before firing at least one shot at
Carrisalez' chest. The officer died nine days later.
Petitioner Herrera was arrested a few days after the shootings
and charged with the capital murder of both Carrisalez and Rucker.
He was tried and found guilty of the capital murder of Carrisalez
in January 1982, and sentenced to death. In July 1982, petitioner
pleaded guilty to the murder of Rucker.
At petitioner's trial for the murder of Carrisalez, Hernandez,
who had witnessed Carrisalez' slaying from the officer's patrol
car, identified petitioner as the person who had wielded the gun. A
declaration by Officer Carrisalez to the same effect, made while he
was in the hospital, was also admitted. Through a license plate
check, it was shown that the speeding car involved in Carrisalez'
murder was registered to petitioner's "live-in" girlfriend.
Petitioner was known to drive this car, and he had a set of keys to
the car in his pants pocket when he was arrested. Hernandez
identified the car as the vehicle from which the murderer had
emerged to fire the fatal shot. He also testified that there had
been only one person in the car that night.
The evidence showed that Herrera's Social Security card had been
found alongside Rucker's patrol car on the night he was killed.
Splatters of blood on the car identified as the vehicle involved in
the shootings, and on petitioner's blue jeans and wallet were
identified as type A blood-the same type which Rucker had. (Herrera
has type 0 blood.) Similar evidence with respect to strands of hair
found in the car indicated that the hair was Rucker's and not
Herrera's. A handwritten letter was also found on the person of
petitioner
395
when he was arrested, which strongly implied that he had killed
Rucker.1
Petitioner appealed his conviction and sentence, arguing, among
other things, that Hernandez' and Carrisalez' identifications were
unreliable and improperly admitted. The Texas Court of Criminal
Appeals affirmed,
Herrera v.
State, 682 S. W. 2d 313
(1984), and we denied certiorari, 471 U. S. 1131 (1985).
Petitioner's application for state habeas relief was denied.
Ex
parte Herrera, No. 12,848-02 (Tex. Crim. App., Aug. 2, 1985).
Petitioner then filed a federal habeas
1 The letter read: "To whom it may concern: I am terribly sorry
for those I have brought grief to their lives. Who knows why? We
cannot change the future's problems with problems from the past.
What I did was for a cause and purpose. One law runs others, and in
the world we live in, that's the way it is.
"I'm not a tormented person .... I believe in the law. What
would it be without this [sic] men that risk their lives for
others, and that's what they should be doing-protecting life,
property, and the pursuit of happiness. Sometimes, the law gets too
involved with other things that profit them. The most laws that
they make for people to break them, in other words, to encourage
crime.
"What happened to Rucker was for a certain reason. I knew him as
Mike Tatum. He was in my business, and he violated some of its laws
and suffered the penalty, like the one you have for me when the
time comes.
"My personal life, which has been a conspiracy since my high
school days, has nothing to do with what has happened. The other
officer that became part of our lives, me and Rucker's (Tatum),
that night had not to do in this [sic]. He was out to do what he
had to do, protect, but that's life. There's a lot of us that wear
different faces in lives every day, and that is what causes
problems for all. [Unintelligible word].
"You have wrote all you want of my life, but think about yours,
also. [Signed Leonel Herrera].
"I have tapes and pictures to prove what I have said. I will
prove my side if you accept to listen. You [unintelligible word]
freedom of speech, even a criminal has that right. I will present
myself if this is read word for word over the media, I will turn
myself in; if not, don't have millions of men out there working
just on me while others-robbers, rapists, or burglars-are taking
advantage of the law's time. Excuse my spelling and writing. It's
hard at times like this." App. to Brief for United States as Amicus
Curiae 3a-4a.
396
petition, again challenging the identifications offered against
him at trial. This petition was denied, see
904
F.2d 944 (CA5), and we again denied certiorari, 498 U. S. 925
(1990).
Petitioner next returned to state court and filed a second
habeas petition, raising, among other things, a claim of "actual
innocence" based on newly discovered evidence. In support of this
claim petitioner presented the affidavits of Hector Villarreal, an
attorney who had represented petitioner's brother, Raul Herrera,
Sr., and of Juan Franco Palacious, one of Raul, Senior's former
cellmates. Both individuals claimed that Raul, Senior, who died in
1984, had told them that he-and not petitioner-had killed Officers
Rucker and Carrisalez.2 The State District Court denied this
application, finding that "no evidence at trial remotely
suggest[ed] that anyone other than [petitioner] committed the
offense."
Ex parte Herrera, No. 81-CR-672-C (Tex. 197th Jud.
Dist., Jan. 14, 1991), , 35. The Texas Court of Criminal Appeals
affirmed,
Ex parte Herrera, 819 S. W. 2d 528 (1991), and we
denied certiorari,
Herrera v.
Texas, 502 U. S. 1085
(1992).
In February 1992, petitioner lodged the instant habeas
petition-his second-in federal court, alleging, among other things,
that he is innocent of the murders of Rucker and Carrisalez, and
that his execution would thus violate the Eighth
2 Villarreal's affidavit is dated December 11, 1990. He attested
that while he was representing Raul, Senior, on a charge of
attempted murder in 1984, Raul, Senior, had told him that he,
petitioner, their father, Officer Rucker, and the Hidalgo County
Sheriff were involved in a drugtrafficking scheme; that he was the
one who had shot Officers Rucker and Carrisalez; that he did not
tell anyone about this because he thought petitioner would be
acquitted; and that after petitioner was convicted and sentenced to
death, he began blackmailing the Hidalgo County Sheriff. According
to Villarreal, Raul, Senior, was killed by Jose Lopez, who worked
with the sheriff on drug-trafficking matters and was present when
Raul, Senior, murdered Rucker and Carrisalez, to silence him.
Palacious' affidavit is dated December 10, 1990. He attested
that while he and Raul, Senior, shared a cell together in the
Hidalgo County jail in 1984, Raul, Senior, told him that he had
shot Rucker and Carrisalez.
397
and Fourteenth Amendments. In addition to proffering the above
affidavits, petitioner presented the affidavits of Raul Herrera,
Jr., Raul, Senior's son, and Jose Ybarra, Jr., a schoolmate of the
Herrera brothers. Raul, Junior, averred that he had witnessed his
father shoot Officers Rucker and Carrisalez and petitioner was not
present. Raul, Junior, was nine years old at the time of the
killings. Ybarra alleged that Raul, Senior, told him one summer
night in 1983 that he had shot the two police officers.3 Petitioner
alleged that law enforcement officials were aware of this evidence,
and had withheld it in violation of
Brady v.
Maryland,
373 U. S. 83 (1963).
The District Court dismissed most of petitioner's claims as an
abuse of the writ. No. M-92-30 (SD Tex., Feb. 17, 1992). However,
"in order to ensure that Petitioner can assert his constitutional
claims and out of a sense of fairness and due process," the
District Court granted petitioner's request for a stay of execution
so that he could present his claim of actual innocence, along with
the Raul, Junior, and Ybarra affidavits, in state court. App.
38-39. Although it initially dismissed petitioner's
Brady
claim on the ground that petitioner had failed to present "any
evidence of withholding exculpatory material by the prosecution,"
App. 37, the District Court also granted an evidentiary hearing on
this claim after reconsideration, id., at 54.
The Court of Appeals vacated the stay of execution.
954 F.2d
1029 (CA5 1992). It agreed with the District Court's initial
conclusion that there was no evidentiary basis for petitioner's
Brady claim, and found disingenuous petitioner's attempt to
couch his claim of actual innocence in
Brady terms. 954 F.
2d, at 1032. Absent an accompanying constitutional violation, the
Court of Appeals held that petitioner's claim
3 Raul, Junior's affidavit is dated January 29, 1992. Ybarra's
affidavit is dated January 9, 1991. It was initially submitted with
Petitioner's Reply to State's Brief in Response to Petitioner's
Petition for Writ of Habeas Corpus filed January 18, 1991, in the
Texas Court of Criminal Appeals.
398
of actual innocence was not cognizable because, under
Town
send v.
Sain, 372 U. S. 293, 317
(1963), "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." See 954 F. 2d, at 1034.4 We granted
certiorari, 502 U. S. 1085 (1992), and the Texas Court of Criminal
Appeals stayed petitioner's execution. We now affirm.
Petitioner asserts that the Eighth and Fourteenth Amendments to
the United States Constitution prohibit the execution of a person
who is innocent of the crime for which he was convicted. This
proposition has an elemental appeal, as would the similar
proposition that the Constitution prohibits the imprisonment of one
who is innocent of the crime for which he was convicted. After all,
the central purpose of any system of criminal justice is to convict
the guilty and free the innocent. See
United States v.
Nobles, 422 U.
S. 225, 230 (1975). But the evidence upon which petitioner's
claim of innocence rests was not produced at his trial, but rather
eight years later. In any system of criminal justice, "innocence"
or "guilt" must be determined in some sort of a judicial
proceeding. Petitioner's showing of innocence, and indeed his
constitutional claim for relief based upon that showing, must be
evaluated in the light of the previous proceedings in this case,
which have stretched over a span of 10 years.
A person when first charged with a crime is entitled to a
presumption of innocence, and may insist that his guilt be
established beyond a reasonable doubt.
In re Winship, 397 U.
S. 358 (1970). Other constitutional provisions also have the effect
of ensuring against the risk of convicting an inno-
4 After the Court of Appeals vacated the stay of execution,
petitioner attached a new affidavit by Raul, Junior, to his
petition for rehearing, which was denied. The affidavit alleges
that during petitioner's trial, various law enforcement officials
and the Hidalgo County Sheriff told Raul, Junior, not to say what
happened on the night of the shootings and threatened his
family.
399
cent person. See,
e. g., Coy v.
Iowa, 487 U. S. 1012 (1988)
(right to confront adverse witnesses);
Taylor v.
Illinois, 484 U. S. 400 (1988) (right to compulsory
process);
Strickland v.
Washington, 466 U. S. 668 (1984)
(right to effective assistance of counsel);
Winship, supra
(prosecution must prove guilt beyond a reasonable doubt);
Duncan v.
Louisiana, 391 U. S. 145 (1968) (right to
jury trial);
Brady v.
Maryland, supra (prosecution
must disclose exculpatory evidence);
Gideon v.
Wainwright, 372 U. S. 335 (1963)
(right to assistance of counsel);
In re Murchison, 349 U. S. 133, 136 (1955)
(right to "fair trial in a fair tribunal"). In capital cases, we
have required additional protections because of the nature of the
penalty at stake. See,
e. g., Beck v.
Alabama,
447 U. S. 625
(1980) (jury must be given option of convicting the defendant of a
lesser offense). All of these constitutional safeguards, of course,
make it more difficult for the State to rebut and finally overturn
the presumption of innocence which attaches to every criminal
defendant. But we have also observed that "[d]ue process does not
require that every conceivable step be taken, at whatever cost, to
eliminate the possibility of convicting an innocent person."
Patterson v.
New York, 432 U. S. 197, 208
(1977). To conclude otherwise would all but paralyze our system for
enforcement of the criminal law.
Once a defendant has been afforded a fair trial and convicted of
the offense for which he was charged, the presumption of innocence
disappears. Cf.
Ross v.
Moffitt, 417 U. S. 600, 610 (1974)
("The purpose of the trial stage from the State's point of view is
to convert a criminal defendant from a person presumed innocent to
one found guilty beyond a reasonable doubt"). Here, it is not
disputed that the State met its burden of proving at trial that
petitioner was guilty of the capital murder of Officer Carrisalez
beyond a reasonable doubt. Thus, in the eyes of the law, petitioner
does not come before the Court as one who is "innocent," but, on
the
400
contrary, as one who has been convicted by due process of law of
two brutal murders.
Based on affidavits here filed, petitioner claims that evidence
never presented to the trial court proves him innocent
notwithstanding the verdict reached at his trial. Such a claim is
not cognizable in the state courts of Texas. For to obtain a new
trial based on newly discovered evidence, a defendant must file a
motion within 30 days after imposition or suspension of sentence.
Tex. Rule App. Proc. 31(a)(1) (1992). The Texas courts have
construed this 30-day time limit as jurisdictional. See
Beathard v.
State, 767 S. W. 2d 423, 433 (Tex. Crim.
App. 1989);
Drew v.
State, 743 S. W. 2d 207,222-223
(Tex. Crim. App. 1987).
Claims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the
underlying state criminal proceeding. Chief Justice Warren made
this clear in
Townsend v.
Sain, supra, at 317
(emphasis added):
"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."
This rule is grounded in the principle that federal habeas
courts sit to ensure that individuals are not imprisoned in
violation of the Constitution-not to correct errors of fact. See,
e. g., Moore v.
Dempsey, 261 U. S. 86, 87-88 (1923)
(Holmes, J.) ("[WJhat 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 pre-
401
served");
Hyde v.
Shine, 199 U. S. 62, 84 (1905)
("[I]t is well settled that upon
habeas corpus the court
will not weigh the evidence") (emphasis in original);
Ex parte
Terry, 128 U. S.
289, 305 (1888) ("As the writ of
habeas corpus does not
perform the office of a writ of error or an appeal, [the facts
establishing guilt] cannot be re-examined or reviewed in this
collateral proceeding") (emphasis in original).
More recent authority construing federal habeas statutes speaks
in a similar vein. "Federal courts are not forums in which to
relitigate state trials."
Barefoot v.
Estelle, 463 U.
S. 880, 887 (1983). The guilt or innocence determination in state
criminal trials is "a decisive and portentous event."
Wainwright v.
Sykes, 433 U. S. 72, 90 (1977).
"Society's resources have been concentrated at that time and place
in order to decide, within the limits of human fallibility, the
question of guilt or innocence of one of its citizens."
Ibid. Few rulings would be more disruptive of our federal
system than to provide for federal habeas review of freestanding
claims of actual innocence.
Our decision in
Jackson v.
Virginia, 443 U. S. 307 (1979),
comes as close to authorizing evidentiary review of a statecourt
conviction on federal habeas as any of our cases. There, we held
that a federal habeas court may review a claim that the evidence
adduced at a state trial was not sufficient to convict a criminal
defendant beyond a reasonable doubt. But in so holding, we
emphasized:
"[T]his inquiry does not require a court to 'ask itself whether
it believes that the evidence at the trial established guilt
beyond a reasonable doubt.' Instead, the relevant question is
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. This
familiar standard gives full play to the responsibility of the
trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable
402
inferences from basic facts to ultimate facts." Id., at
318-319 (citations omitted; emphasis in original).
We specifically noted that "the standard announced ... does not
permit a court to make its own subjective determination of guilt or
innocence."
Id., at 320, n. 13.
The type of federal habeas review sought by petitioner here is
different in critical respects than that authorized by
Jackson. First, the
Jackson inquiry is aimed at
determining whether there has been an independent constitutional
violation-i.
e., a conviction based on evidence that fails
to meet the
Winship standard. Thus, federal habeas courts
act in their historic capacity-to assure that the habeas petitioner
is not being held in violation of his or her federal constitutional
rights. Second, the sufficiency of the evidence review authorized
by
Jackson is limited to "record evidence." 443 U. S., at
318.
Jackson does not extend to nonrecord evidence,
including newly discovered evidence. Finally, the
Jackson
inquiry does not focus on whether the trier of fact made the
correct guilt or innocence determination, but rather whether
it made a
rational decision to convict or acquit.
Petitioner is understandably imprecise in describing the sort of
federal relief to which a suitable showing of actual innocence
would entitle him. In his brief he states that the federal habeas
court should have "an important initial opportunity to hear the
evidence and resolve the merits of Petitioner's claim." Brief for
Petitioner 42. Acceptance of this view would presumably require the
habeas court to hear testimony from the witnesses who testified at
trial as well as those who made the statements in the affidavits
which petitioner has presented, and to determine anew whether or
not petitioner is guilty of the murder of Officer Carrisalez.
Indeed, the dissent's approach differs little from that
hypothesized here.
The dissent would place the burden on petitioner to show that he
is "probably" innocent.
Post, at 442. Although
403
petitioner would not be entitled to discovery "as a matter of
right," the District Court would retain its "discretion to order
discovery ... when it would help the court make a reliable
determination with respect to the prisoner's claim."
Post,
at 444. And although the District Court would not be required to
hear testimony from the witnesses who testified at trial or the
affiants upon whom petitioner relies, the dissent would allow the
District Court to do so "if the petition warrants a hearing."
Ibid. At the end of the day, the dissent would have the
District Court "make a case-by-case determination about the
reliability of the newly discovered evidence under the
circumstances," and then "weigh the evidence in favor of the
prisoner against the evidence of his guilt."
Post, at
443.
The dissent fails to articulate the relief that would be
available if petitioner were to meets its "probable innocence"
standard. Would it be commutation of petitioner's death sentence,
new trial, or unconditional release from imprisonment? The typical
relief granted in federal habeas corpus is a conditional order of
release unless the State elects to retry the successful habeas
petitioner, or in a capital case a similar conditional order
vacating the death sentence. Were petitioner to satisfy the
dissent's "probable innocence" standard, therefore, the District
Court would presumably be required to grant a conditional order of
relief, which would in effect require the State to retry petitioner
10 years after his first trial, not because of any constitutional
violation which had occurred at the first trial, but simply because
of a belief that in light of petitioner's new-found evidence a jury
might find him not guilty at a second trial.
Yet there is no guarantee that the guilt or innocence
determination would be any more exact. To the contrary, the passage
of time only diminishes the reliability of criminal adjudications.
See
McCleskey v.
Zant, 499 U. S. 467, 491 (1991)
("[W]hen a habeas petitioner succeeds in obtaining a new trial, the
'erosion of memory and dispersion of witnesses
404
that occur with the passage of time' prejudice the government
and diminish the chances of a reliable criminal adjudication")
(quoting
Kuhlmann v.
Wilson, 477 U. S. 436, 453 (1986)
(plurality opinion) (internal quotation marks omitted; citation
omitted));
United States v.
Smith, 331 U. S. 469, 476
(1947). Under the dissent's approach, the District Court would be
placed in the even more difficult position of having to weigh the
probative value of "hot" and "cold" evidence on petitioner's guilt
or innocence.
This is not to say that our habeas jurisprudence casts a blind
eye toward innocence. In a series of cases culminating with
Sawyer v.
Whitley, 505 U. S. 333 (1992),
decided last Term, we have held that a petitioner otherwise subject
to defenses of abusive or successive use of the writ may have his
federal constitutional claim considered on the merits if he makes a
proper showing of actual innocence. This rule, or fundamental
miscarriage of justice exception, is grounded in the "equitable
discretion" of habeas courts to see that federal constitutional
errors do not result in the incarceration of innocent persons. See
McCleskey, supra, at 502. But this body of our habeas
jurisprudence makes clear that a claim of "actual innocence" is not
itself a constitutional claim, but instead a gateway through which
a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.
Petitioner in this case is simply not entitled to habeas relief
based on the reasoning of this line of cases. For he does not seek
excusal of a procedural error so that he may bring an independent
constitutional claim challenging his conviction or sentence, but
rather argues that he is entitled to habeas relief because newly
discovered evidence shows that his conviction is factually
incorrect. The fundamental miscarriage of justice exception is
available "only where the prisoner
supplements his
constitutional claim with a colorable showing of factual
innocence."
Kuhlmann, supra, at 454 (emphasis added). We
have never held that it extends to
405
freestanding claims of actual innocence. Therefore, the
exception is inapplicable here.
Petitioner asserts that this case is different because he has
been sentenced to death. But we have "refused to hold that the fact
that a death sentence has been imposed requires a different
standard of review on federal habeas corpus." Mur
ray v.
Giarratano, 492
U. S. 1, 9 (1989) (plurality opinion). We have, of course, held
that the Eighth Amendment requires increased reliability of the
process by which capital punishment may be imposed. See,
e. g.,
McKoy v.
North Carolina, 494 U. S. 433 (1990)
(unanimity requirement impermissibly limits jurors' consideration
of mitigating evidence);
Eddings v.
Oklahoma,
455 U. S. 104
(1982) (jury must be allowed to consider all of a capital
defendant's mitigating character evidence);
Lockett v.
Ohio, 438 U.
S. 586, 604 (1978) (plurality opinion) (same). But petitioner's
claim does not fit well into the doctrine of these cases, since, as
we have pointed out, it is far from clear that a second trial 10
years after the first trial would produce a more reliable
result.
Perhaps mindful of this, petitioner urges not that he
necessarily receive a new trial, but that his death sentence simply
be vacated if a federal habeas court deems that a satisfactory
showing of "actual innocence" has been made. Tr. of Oral Arg.
19-20. But such a result is scarcely logical; petitioner's claim is
not that some error was made in imposing a capital sentence upon
him, but that a fundamental error was made in finding him guilty of
the underlying murder in the first place. It would be a rather
strange jurisprudence, in these circumstances, which held that
under our Constitution he could not be executed, but that he could
spend the rest of his life in prison.
Petitioner argues that our decision in
Ford v.
Wainwright, 477 U. S. 399 (1986),
supports his position. The plurality in
Ford held that,
because the Eighth Amendment prohibits the execution of insane
persons, certain procedural protections inhere in the sanity
determination. "[I]f the Constitution
406
renders the fact or timing of his execution contingent upon
establishment of a further fact," Justice Marshall wrote, "then
that fact must be determined with the high regard for truth that
befits a decision affecting the life or death of a human being."
Id., at 411. Because the Florida scheme for determining the
sanity of persons sentenced to death failed "to achieve even the
minimal degree of reliability," id., at 413, the plurality
concluded that Ford was entitled to an evidentiary hearing on his
sanity before the District Court.
Unlike petitioner here, Ford did not challenge the validity of
his conviction. Rather, he challenged the constitutionality of his
death sentence in view of his claim of insanity. Because Ford's
claim went to a matter of punishment-not guilt-it was properly
examined within the purview of the Eighth Amendment. Moreover,
unlike the question of guilt or innocence, which becomes more
uncertain with time for evidentiary reasons, the issue of sanity is
properly considered in proximity to the execution. Finally, unlike
the sanity determination under the Florida scheme at issue in
Ford, the guilt or innocence determination in our system of
criminal justice is made "with the high regard for truth that
befits a decision affecting the life or death of a human being."
Id., at 411.
Petitioner also relies on
Johnson v.
Mississippi,
486 U. S. 578
(1988), where we held that the Eighth Amendment requires
reexamination of a death sentence based in part on a prior felony
conviction which was set aside in the rendering State after the
capital sentence was imposed. There, the State insisted that it was
too late in the day to raise this point. But we pointed out that
the Mississippi Supreme Court had previously considered similar
claims by writ of error
coram nobis. Thus, there was no need
to override state law relating to newly discovered evidence in
order to consider Johnson's claim on the merits. Here, there is no
doubt that petitioner seeks additional process-an evidentiary
hearing on his claim of "actual innocence" based on
407
newly discovered evidence-which is not available under Texas law
more than 30 days after imposition or suspension of sentence. Tex.
Rule App. Proc. 31(a)(1) (1992).5
Alternatively, petitioner invokes the Fourteenth Amendment's
guarantee of due process of law in support of his claim that his
showing of actual innocence entitles him to a new trial, or at
least to a vacation of his death sentence.6 "[B]ecause the States
have considerable expertise in matters of criminal procedure and
the criminal process is grounded in centuries of common-law
tradition," we have "exercis[ed] substantial deference to
legislative judgments in this area."
Medina v.
California, 505 U. S. 437, 445-446
(1992). Thus, we have found criminal process lacking only where it
"'offends some principle of justice so rooted in the traditions
and
5The dissent relies on
Beck v.
Alabama, 447 U. S. 625 (1980), for
the proposition that, "at least in capital cases, the Eighth
Amendment requires more than reliability in sentencing. It also
mandates a reliable determination of guilt."
Post, at 434.
To the extent
Beck rests on Eighth Amendment grounds, it
simply emphasizes the importance of ensuring the reliability of the
guilt determination in capital cases in the first instance. We have
difficulty extending this principle to hold that a capital
defendant who has been afforded a full and fair trial may challenge
his conviction on federal habeas based on after-discovered
evidence.
6 The dissent takes us to task for examining petitioner's
Fourteenth Amendment claim in terms of procedural, rather than
substantive, due process. Because "[e]xecution of an innocent
person is the ultimate 'arbitrary impositio[n],'"
post, at
437, quoting
Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.
S. 833, 848 (1992) (internal quotation marks omitted), the
dissent concludes that "petitioner may raise a substantive due
process challenge to his punishment on the ground that he is
actually innocent,"
post, at 437. But the dissent puts the
cart before the horse. For its due process analysis rests on the
assumption that petitioner is in fact innocent. However, as we have
discussed, petitioner does not come before this Court as an
innocent man, but rather as one who has been convicted by due
process of law of two capital murders. The question before us,
then, is not whether due process prohibits the execution of an
innocent person, but rather whether it entitles petitioner to
judicial review of his "actual innocence" claim. This issue is
properly analyzed only in terms of procedural due process.
408
conscience of our people as to be ranked as fundamentaL'"
Ibid. (quoting
Patterson v.
New York, 432 U. S. 197, 202
(1977)). "Historical practice is probative of whether a procedural
rule can be characterized as fundamental." 505 U. S., at 446.
The Constitution itself, of course, makes no mention of new
trials. New trials in criminal cases were not granted in England
until the end of the 17th century. And even then, they were
available only in misdemeanor cases, though the writ of error
coram nobis was available for some errors of fact in felony
cases. Orfield, New Trial in Federal Criminal Cases, 2 Vill. L.
Rev. 293, 304 (1957). The First Congress provided for new trials
for "reasons for which new trials have usually been granted in
courts of law." Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 83.
This rule was early held to extend to criminal cases. See
Spar! v.
United States, 156 U. S. 51, 175 (1895)
(Gray, J., dissenting) (citing cases). One of the grounds upon
which new trials were granted was newly discovered evidence. See F.
Wharton, Criminal Pleading and Practice §§854-874, pp. 584-592 (8th
ed. 1880).
The early federal cases adhere to the common-law rule that a new
trial may be granted only during the term of court in which the
final judgment was entered. See,
e. g.,
United States
v.
Mayer, 235
U. S. 55, 67 (1914);
United States v.
Simmons, 27
F. Cas. 1080 (No. 16,289) (CC EDNY 1878). Otherwise, "the court at
a subsequent term has power to correct inaccuracies in mere matters
of form, or clerical errors." 235 U. S., at 67. In 1934, this Court
departed from the common-law rule and adopted a time limit-60 days
after final judgment-for filing new trial motions based on newly
discovered evidence. Rule II(3), Criminal Rules of Practice and
Procedure, 292 U. S. 659, 662. Four years later, we amended Rule
II(3) to allow such motions in capital cases "at any time" before
the execution took place. 304 U. S. 592 (1938) (codified at 18 U.
S. C. § 688 (1940)).
409
There ensued a debate as to whether this Court should abolish
the time limit for filing new trial motions based on newly
discovered evidence to prevent a miscarriage of justice, or retain
a time limit even in capital cases to promote finality. See
Orfield,
supra, at 299-304. In 1946, we set a 2-year time
limit for filing new trial motions based on newly discovered
evidence and abolished the exception for capital cases. Rule 33,
Federal Rules of Criminal Procedure, 327 U. S. 821, 855-856 ("A
motion for a new trial based on the ground of newly discovered
evidence may be made only before or within two years after final
judgment").7 We have strictly construed the Rule 33 time limits.
Cf.
United States v.
Smith, 331 U. S. 469, 473
(1947). And the Rule's treatment of new trials based on newly
discovered evidence has not changed since its adoption.
The American Colonies adopted the English common law on new
trials. Riddell, New Trial in Present Practice, 27 Yale L. J. 353,
360 (1917). Thus, where new trials were available, motions for such
relief typically had to be filed before the expiration of the term
during which the trial was held. H. Underhill, Criminal Evidence
579, n. 1 (1898); J. Bassett, Criminal Pleading and Practice 313
(1885). Over time, many States enacted statutes providing for new
trials
7 In response to the second preliminary draft of the Federal
Rules of Criminal Procedure, Chief Justice Harlan Stone forwarded a
memorandum on behalf of the Court to the Rules Advisory Committee
with various comments and suggestions, including the following: "It
is suggested that there should be a definite time limit within
which motions for new trial based on newly discovered evidence
should be made, unless the trial court in its discretion, for good
cause shown, allows the motion to be filed. Is it not desirable
that at some point of time further consideration of criminal cases
by the court should be at an end, after which appeals should be
made to Executive clemency alone?" 7 Drafting History of the
Federal Rules of Criminal Procedure 3, 7 (M. Wilken & N.
Triffin eds. 1991) (responding to proposed Rule 35). As noted
above, we eventually rejected the adoption of a flexible time limit
for new trial motions, opting instead for a strict 2-year time
limit.
410
in all types of cases. Some States also extended the time period
for filing new trial motions beyond the term of court, but most
States required that such motions be made within a few days after
the verdict was rendered or before the judgment was entered. See
American Law Institute Code of Criminal Procedure 1040-1042
(Official Draft 1931) (reviewing contemporary new trials
rules).
The practice in the States today, while of limited relevance to
our historical inquiry, is divergent. Texas is one of 17 States
that requires a new trial motion based on newly discovered evidence
to be made within 60 days of judgment.8 One State adheres to the
common-law rule and requires that such a motion be filed during the
term in which judgment was rendered.9 Eighteen jurisdictions have
time limits ranging between one and three years, with 10 States and
the District of Columbia following the 2-year federal time
limit.10
8 Ala. Code § 15-17-5 (1982) (30 days); Ariz. Rule Crim. Proc.
24.2(a) (1987) (60 days); Ark. Rule Crim. Proc. 36.22 (1992) (30
days); Fla. Rule Crim. Proc. 3.590 (1992) (10 days); Haw. Rule
Penal Proc. 33 (1992) (10 days); Ill. Rev. Stat., ch. 38, , 116-1
(1991) (30 days); Ind. Rule Crim. Proc. 16 (1992) (30 days); Mich.
Ct. Rule Crim. Proc. 6.431(A)(I) (1992) (42 days); Minn. Rule Crim.
Proc. 26.04(3) (1992) (15 days); Mo. Rule Crim. Proc. 29.11(b)
(1992) (15-25 days); Mont. Code Ann. § 46-16-702(2) (1991) (30
days); S. D. Codified Laws §23A-29-1 (1988) (10 days); Tenn. Rule
Crim. Proc. 33(b) (1992) (30 days); Tex. Rule App. Proc. 31(a)(I)
(1992) (30 days); Utah Rule Crim. Proc. 24(c) (1992) (10 days); Va.
Sup. Ct. Rule 3A:15(b) (1992) (21 days); Wis. Stat. § 809.30(2)(b)
(1989-1990) (20 days).
9Miss. Cir. Ct. Crim. Rule 5.16 (1992).
10 Alaska Rule Ct., Crim. Rule 33 (1988) (two years); Conn. Gen.
Stat. §§ 52-270, 52-582 (1991) (three years); Del. Ct. Crim. Rule
33 (1987) (two years); D. C. Super. Ct. Crim. Rule 33 (1992) (two
years); Kan. Stat. Ann. § 22-3501 (1988) (two years); La. Code
Crim. Proc. Ann., Art. 853 (West 1984) (one year); Maine Rule Crim.
Proc. 33 (1992) (two years); Md. Rule Crim. Proc. 4-331(c) (1992)
(one year); Neb. Rev. Stat. §29-2103 (1989) (three years); Nev.
Rev. Stat. § 176.515(3) (1991) (two years); N. H. Rev. Stat. Ann. §
526:4 (1974) (three years); N. M. Rule Crim. Proc. 5-614(c) (1992)
(two years); N. D. Rule Crim. Proc. 33(b) (1992-1993) (two years);
Okla. Ct. Rule Crim. Proc., ch. 15, § 953 (1992) (one year); R. I.
Super. Ct.
411
Only 15 States allow a new trial motion based on newly
discovered evidence to be filed more than three years after
conviction. Of these States, four have waivable time limits of less
than 120 days, two have waivable time limits of more than 120 days,
and nine States have no time limits.u
In light of the historical availability of new trials, our own
amendments to Rule 33, and the contemporary practice in the States,
we cannot say that Texas' refusal to entertain petitioner's newly
discovered evidence eight years after his conviction transgresses a
principle of fundamental fairness "rooted in the traditions and
conscience of our people." Pat
terson v.
New York, 432
U. S., at 202 (internal quotation marks and citations omitted).
This is not to say, however, that petitioner is left without a
forum to raise his actual innocence claim. For under Texas law,
petitioner may file a request for executive clemency. See Tex.
Const., Art. IV, § 11; Tex. Code Crim. Proc. Ann., Art. 48.01
(Vernon 1979). Clemency 12 is deeply rooted in our Anglo-American
tradition
Rule Crim. Proc. 33 (1991-1992) (two years); Vt. Rule Crim.
Proc. 33 (1983) (two years); Wash. Crim. Rule 7.8(b) (1993) (one
year); Wyo. Rule Crim. Proc. 33(c) (1992) (two years).
11 Cal. Penal Code Ann. § 1181(8) (West 1985) (no time limit);
Colo. Rule Crim. Proc. 33 (Supp. 1992) (no time limit); Ga. Code
Ann. §§ 5-5-40, 55-41 (1982) (30 days, can be extended); Idaho Code
§ 19-2407 (Supp. 1992) (14 days, can be extended); Iowa Rule Crim.
Proc. 23 (1993) (45 days, can be waived); Ky. Rule Crim. Proc.
10.06 (1983) (one year, can be waived); Mass. Rule Crim. Proc. 30
(1979) (no time limit); N. J. Rule Crim. Prac. 3:20-2 (1993) (no
time limit); N. Y. Crim. Proc. Law § 440.10(1)(g) (McKinney 1983)
(no time limit); N. C. Gen. Stat. § 15A-1415(6) (1988) (no time
limit); Ohio Rule Crim. Proc. 33A(6), B (1988) (120 days, can be
waived); Ore. Rev. Stat. § 136.535 (1991) (five days, can be
waived); Pa. Rule Crim. Proc. 1123(d) (1992) (no time limit); S. C.
Rule Crim. Proc. 29(b) (Supp. 1991) (no time limit); W. Va. Rule
Crim. Proc. 33 (1992) (no time limit).
12 The term "clemency" refers not only to full or conditional
pardons, but also commutations, remissions of fines, and reprieves.
See Kobil, The Quality of Mercy Strained: Wresting the Pardoning
Power from the King, 69 Texas L. Rev. 569, 575-578 (1991).
412
of law, and is the historic remedy for preventing miscarriages
of justice where judicial process has been exhausted.13
In England, the clemency power was vested in the Crown and can
be traced back to the 700's. W. Humbert, The Pardoning Power of the
President 9 (1941). Blackstone thought this "one of the great
advantages of monarchy in general, above any other form of
government; that there is a magistrate, who has it in his power to
extend mercy, wherever he thinks it is deserved: holding a court of
equity in his own breast, to soften the rigour of the general law,
in such criminal cases as merit an exemption from punishment." 4 W.
Blackstone, Commentaries *397. Clemency provided the principal
avenue of relief for individuals convicted of criminal
offenses-most of which were capital-because there was no right of
appeal until 1907. 1 L. Radzinowicz, A History of English Criminal
Law 122 (1948). It was the only means by which one could challenge
his conviction on the ground of innocence. United States Dept. of
Justice, 3 Attorney General's Survey of Release Procedures 73
(1939).
Our Constitution adopts the British model and gives to the
President the "Power to grant Reprieves and Pardons for Offences
against the United States." Art. II, § 2, cl. 1. In
13 The dissent relies on the plurality opinion in
Ford v.
Wainwright, 477 U. S. 399 (1986), to
support the proposition that "[t]he vindication of rights
guaranteed by the Constitution has never been made to turn on the
unreviewable discretion of an executive official or administrative
tribunal."
Post, at 440. But that case is inapposite insofar
as it pertains to our discussion of clemency here. The
Ford
plurality held that Florida's procedures for entertaining
post-trial claims of insanity, which vested the sanity
determination entirely within the executive branch, were
"inadequate to preclude federal redetermination of the
constitutional issue [of Ford's sanity]." 477 U. S., at 416. Unlike
Ford's claim of insanity, which had never been presented in a
judicial proceeding, petitioner's claim of "actual innocence" comes
10 years after he was adjudged guilty beyond a reasonable doubt
after a full and fair trial. As the following discussion indicates,
it is clear that clemency has provided the historic mechanism for
obtaining relief in such circumstances.
413
United States v.
Wilson, 7 Pet. 150, 160-161
(1833), Chief Justice Marshall expounded on the President's pardon
power:
"As this power had been exercised from time immemorial by the
executive of that nation whose language is our language, and to
whose judicial institutions ours bear a close resemblance; we adopt
their principles respecting the operation and effect of a pardon,
and look into their books for the rules prescribing the manner in
which it is to be used by the person who would avail himself of
it.
"A pardon is an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the
individual, on whom it is bestowed, from the punishment the law
inflicts for a crime he has committed. It is the private, though
official act of the executive magistrate, delivered to the
individual for whose benefit it is intended, and not communicated
officially to the court. It is a constituent part of the judicial
system, that the judge sees only with judicial eyes, and knows
nothing respecting any particular case, of which he is not informed
judicially. A private deed, not communicated to him, whatever may
be its character, whether a pardon or release, is totally unknown
and cannot be acted on. The looseness which would be introduced
into judicial proceedings, would prove fatal to the great
principles of justice, if the judge might notice and act upon facts
not brought regularly into the cause. Such a proceeding, in
ordinary cases, would subvert the best established principles, and
overturn those rules which have been settled by the wisdom of
ages."
See also
Ex parte Garland, 4 Wall. 333, 380-381 (1867);
The Federalist No. 74, pp. 447-449 (C. Rossiter ed. 1961) (A.
Hamilton) ("The criminal code of every country partakes so much of
necessary severity that without an easy access to excep-
414
tions in favor of unfortunate guilt, justice would wear a
countenance too sanguinary and cruel").
Of course, although the Constitution vests in the President a
pardon power, it does not require the States to enact a clemency
mechanism. Yet since the British Colonies were founded, clemency
has been available in America. C. Jensen, The Pardoning Power in
the American States 3-4 (1922). The original States were reluctant
to vest the clemency power in the executive. And although this
power has gravitated toward the executive over time, several States
have split the clemency power between the Governor and an advisory
board selected by the legislature. See Survey of Release
Procedures,
supra, at 91-98. Today, all 36 States that
authorize capital punishment have constitutional or statutory
provisions for clemency.14
14 Ala. Const., Arndt. 38, Ala. Code § 15-18-100 (1982); Ariz.
Const., Art.
V, § 5, Ariz. Rev. Stat. Ann. §§ 31-443, 31-445 (1986 and Supp.
1992); Ark. Const., Art. VI, § 18, Ark. Code Ann. §§ 5-4-607,
16-93-204 (Supp. 1991); Cal. Const., Art. VII, § 1, Cal. Govt. Code
Ann. § 12030(a) (West 1992); Colo. Const., Art. IV, §7, Colo. Rev.
Stat. §§16-17-101, 16-17-102 (1986); Conn. Const., Art. IV, § 13,
Conn. Gen. Stat. § 18-26 (1988); Del. Const., Art. VII, § 1, Del.
Code Ann., Tit. 29, § 2103 (1991); Fla. Const., Art. IV, § 8, Fla.
Stat. § 940.01 (Supp. 1991); Ga. Const., Art. IV, § 2, , 2, Ga.
Code Ann. §§ 42-9-20, 42-9-42 (1991); Idaho Const., Art. IV, § 7,
Idaho Code §§ 20-240 (Supp. 1992), 67-804 (1989); Ill. Const., Art.
V, § 12, Ill. Rev. Stat., ch. 38, U003-3-13 (1991); Ind. Const.,
Art. V, § 17, Ind. Code §§ 119-2-1 to 11-9-2-4,35-38-6-8 (1988);
Ky. Const., § 77; La. Const., Art. IV, § 5(E), La. Rev. Stat. Ann.
§ 15:572 (West 1992); Md. Const., Art. II, § 20, Md. Ann. Code,
Art. 27, § 77 (1992), and Art. 41, § 4-513 (1990); Miss. Const.,
Art. V, § 124, Miss. Code Ann. §47-5-115 (1981); Mo. Const., Art.
IV, §7, Mo. Rev. Stat. §§217.220 (Vernon Supp. 1992), 552.070
(Vernon 1987); Mont. Const., Art. VI, § 12, Mont. Code Ann. §§
46-23-301 to 46-23316 (1991); Neb. Const., Art. IV, § 13, Neb. Rev.
Stat. §§83-1, 127 to 83-1, 132 (1987); Nev. Const., Art. V, § 13,
Nev. Rev. Stat. §213.080 (1991); N. H. Const., pt. 2, Art. 52, N.
H. Rev. Stat. Ann. § 4:23 (1988); N. J. Const., Art. V, §2, U, N.
J. Stat. Ann. §§2A:167-4, 2A:167-12 (West 1985); N. M. Const., Art.
V, §6, N. M. Stat. Ann. §31-21-17 (1990); N. C. Const., Art. III, §
5(6), N. C. Gen. Stat. §§ 147-23 to 147-25 (1987); Ohio Const.,
Art. III, § 11, Ohio Rev. Code Ann. §§2967.1 to 2967.12 (1987 and
Supp. 1991);
415
Executive clemency has provided the "fail safe" in our criminal
justice system. K. Moore, Pardons: Justice, Mercy, and the Public
Interest 131 (1989). It is an unalterable fact that our judicial
system, like the human beings who administer it, is fallible. But
history is replete with examples of wrongfully convicted persons
who have been pardoned in the wake of after-discovered evidence
establishing their innocence. In his classic work, Professor Edwin
Borchard compiled 65 cases in which it was later determined that
individuals had been wrongfully convicted of crimes. Clemency
provided the relief mechanism in 47 of these cases; the remaining
cases ended in judgments of acquittals after new trials. E.
Borchard, Convicting the Innocent (1932). Recent authority confirms
that over the past century clemency has been exercised frequently
in capital cases in which demonstrations of "actual innocence" have
been made. See M. Radelet, H. Bedau, & C. Putnam, In Spite of
Innocence 282-356 (1992).15
Okla. Const., Art. VI, § 10, Okla. Stat., Tit. 21, § 701.11a
(Supp. 1990); Ore. Const., Art. V, § 14, Ore. Rev. Stat. §§ 144.640
to 144.670 (1991); Pa. Const., Art. IV, § 9, Pa. Stat. Ann., Tit.
61, § 2130 (Purdon Supp. 1992); S. C. Const., Art. IV, § 14, S. C.
Code Ann. §§24-21-91O to 24-21-1000 (1977 and Supp. 1991); S. D.
Const., Art. IV, §3, S. D. Codified Laws §§23A-27A-20 to
23A-27A-21, 24-14-1 (1988); Tenn. Const., Art. III, §6, Tenn. Code
Ann. §§40-27-101 to 40-27-109 (1990); Tex. Const., Art. IV, § 11,
Tex. Code Crim. Proc. Ann., Art. 48.01 (Vernon 1979); Utah Const.,
Art. VII, § 12, Utah Code Ann. § 77-27-5.5 (Supp. 1992); Va.
Const., Art. V, § 12, Va. Code Ann. § 53.1-230 (1991); Wash.
Const., Art. III, § 9, Wash. Rev. Code § 10.01.120 (1992); Wyo.
Const., Art. IV, § 5, Wyo. Stat. § 7-13-801 (1987).
15 The dissent points to one study concluding that 23 innocent
persons have been executed in the United States this century as
support for the proposition that clemency requests by persons
believed to be innocent are not always granted. See
post, at
430-431, n. 1 (citing Bedau & Radelet, Miscarriages of Justice
in Potentially Capital Cases, 40 Stan. L. Rev. 21 (1987)). Although
we do not doubt that clemency-like the criminal justice system
itself-is fallible, we note that scholars have taken issue with
this study. See Markman & Cassell, Protecting the Innocent: A
Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121
(1988).
416
In Texas, the Governor has the power, upon the recommendation of
a majority of the Board of Pardons and Paroles, to grant clemency.
Tex. Const., Art. IV, § 11; Tex. Code Crim. Proc. Ann., Art. 48.01
(Vernon 1979). The board's consideration is triggered upon request
of the individual sentenced to death, his or her representative, or
the Governor herself. In capital cases, a request may be made for a
full pardon, Tex. Admin. Code, Tit. 37, § 143.1 (West Supp. 1992),
a commutation of death sentence to life imprisonment or appropriate
maximum penalty, § 143.57, or a reprieve of execution, § 143.43.
The Governor has the sole authority to grant one reprieve in any
capital case not exceeding 30 days. § 143.41(a).
The Texas clemency procedures contain specific guidelines for
pardons on the ground of innocence. The board will entertain
applications for a recommendation of full pardon because of
innocence upon receipt of the following: "(1) a written unanimous
recommendation of the current trial officials of the court of
conviction; and/or (2) a certified order or judgment of a court
having jurisdiction accompanied by certified copy of the findings
of fact (if any); and (3) affidavits of witnesses upon which the
finding of innocence is based." § 143.2. In this case, petitioner
has apparently sought a 30day reprieve from the Governor, but has
yet to apply for a pardon, or even a commutation, on the ground of
innocence or otherwise. Tr. of Oral Arg. 7,34.
As the foregoing discussion illustrates, in state criminal
proceedings the trial is the paramount event for determining the
guilt or innocence of the defendant. Federal habeas review of state
convictions has traditionally been limited to claims of
constitutional violations occurring in the course of the underlying
state criminal proceedings. Our federal habeas cases have treated
claims of "actual innocence," not as an independent constitutional
claim, but as a basis upon which a habeas petitioner may have an
independent constitutional claim considered on the merits, even
though his habeas
417
petition would otherwise be regarded as successive or abusive.
History shows that the traditional remedy for claims of innocence
based on new evidence, discovered too late in the day to file a new
trial motion, has been executive clemency.
We may assume, for the sake of argument in deciding this case,
that in a capital case a truly persuasive demonstration of "actual
innocence" made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim. But
because of the very disruptive effect that entertaining claims of
actual innocence would have on the need for finality in capital
cases, and the enormous burden that having to retry cases based on
often stale evidence would place on the States, the threshold
showing for such an assumed right would necessarily be
extraordinarily high. The showing made by petitioner in this case
falls far short of any such threshold.
Petitioner's newly discovered evidence consists of affidavits.
In the new trial context, motions based solely upon affidavits are
disfavored because the affiants' statements are obtained without
the benefit of cross-examination and an opportunity to make
credibility determinations. See Orfield, 2 Vill. L. Rev., at 333.
Petitioner's affidavits are particularly suspect in this regard
because, with the exception of Raul Herrera, Jr.'s affidavit, they
consist of hearsay. Likewise, in reviewing petitioner's new
evidence, we are mindful that defendants often abuse new trial
motions "as a method of delaying enforcement of just sentences."
United States v.
Johnson, 327 U. S. 106, 112
(1946). Although we are not presented with a new trial motion
per se, we believe the likelihood of abuse is as great-or
greater-here.
The affidavits filed in this habeas proceeding were given over
eight years after petitioner's trial. No satisfactory explanation
has been given as to why the affiants waited until the 11th
hour-and, indeed, until after the alleged perpetra-
418
tor of the murders himself was dead-to make their statements.
Cf.
Taylor v.
Illinois, 484 U. S., at 414 ("[I]t is
... reasonable to presume that there is something suspect about a
defense witness who is not identified until after the 11th hour has
passed"). Equally troubling, no explanation has been offered as to
why petitioner, by hypothesis an innocent man, pleaded guilty to
the murder of Rucker.
Moreover, the affidavits themselves contain inconsistencies, and
therefore fail to provide a convincing account of what took place
on the night Officers Rucker and Carrisalez were killed. For
instance, the affidavit of Raul, Junior, who was nine years old at
the time, indicates that there were three people in the speeding
car from which the murderer emerged, whereas Hector Villarreal
attested that Raul, Senior, told him that there were two people in
the car that night. Of course, Hernandez testified at petitioner's
trial that the murderer was the only occupant of the car. The
affidavits also conflict as to the direction in which the vehicle
was heading when the murders took place and petitioner's
whereabouts on the night of the killings.
Finally, the affidavits must be considered in light of the proof
of petitioner's guilt at trial-proof which included two eyewitness
identifications, numerous pieces of circumstantial evidence, and a
handwritten letter in which petitioner apologized for killing the
officers and offered to turn himself in under certain conditions.
See
supra, at 393-395, and n. 1. That proof, even when
considered alongside petitioner's belated affidavits, points
strongly to petitioner's guilt.
This is not to say that petitioner's affidavits are without
probative value. Had this sort of testimony been offered at trial,
it could have been weighed by the jury, along with the evidence
offered by the State and petitioner, in deliberating upon its
verdict. Since the statements in the affidavits contradict the
evidence received at trial, the jury would have had to decide
important issues of credibility. But coming 10 years after
petitioner's trial, this showing of innocence falls
419
far short of that which would have to be made in order to
trigger the sort of constitutional claim which we have assumed,
arguendo, to exist.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE O'CONNOR, with whom JUSTICE KENNEDY joins,
concurring.
I cannot disagree with the fundamental legal principle that
executing the innocent is inconsistent with the Constitution.
Regardless of the verbal formula employed-"contrary to contemporary
standards of decency,"
post, at 430 (dissenting opinion)
(relying on
Ford v.
Wainwright, 477 U. S. 399, 406
(1986)), "shocking to the conscience,"
post, at 430 (relying
on
Rochin v.
California, 342 U. S. 165, 172
(1952)), or offensive to a '" "principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental,"'"
ante, at 407-408 (opinion of the Court)
(quoting
Medina v.
California, 505 U. S. 437, 445-446
(1992), in turn quoting
Patterson v.
New York,
432 U. S. 197,202
(1977))-the execution of a legally and factually innocent person
would be a constitutionally intolerable event. Dispositive to this
case, however, is an equally fundamental fact: Petitioner is not
innocent, in any sense of the word.
As the Court explains,
ante, at 398-400, petitioner is
not innocent in the eyes of the law because, in our system of
justice, "the trial is the paramount event for determining the
guilt or innocence of the defendant,"
ante, at 416. Accord,
post, at 441 (dissenting opinion). In petitioner's case,
that paramount event occurred 10 years ago. He was tried before a
jury of his peers, with the full panoply of protections that our
Constitution affords criminal defendants. At the conclusion of that
trial, the jury found petitioner guilty beyond a reasonable doubt.
Petitioner therefore does not appear before us as an innocent man
on the verge of execution. He is instead a legally guilty one who,
refusing to accept
420
the jury's verdict, demands a hearing in which to have his
culpability determined once again.
Ante, at 399-400.
Consequently, the issue before us is not whether a State can
execute the innocent. It is, as the Court notes, whether a fairly
convicted and therefore legally guilty person is constitutionally
entitled to yet another judicial proceeding in which to adjudicate
his guilt anew, 10 years after conviction, notwithstanding his
failure to demonstrate that constitutional error infected his
trial.
Ante, at 407, n. 6; see
ante, at 399-400. In
most circumstances, that question would answer itself in the
negative. Our society has a high degree of confidence in its
criminal trials, in no small part because the Constitution offers
unparalleled protections against convicting the innocent.
Ante, at 398-399. The question similarly would be answered
in the negative today, except for the disturbing nature of the
claim before us. Petitioner contends not only that the
Constitution's protections "sometimes fail,"
post, at 430
(dissenting opinion), but that their failure in his case will
result in his execution-even though he is factually innocent and
has evidence to prove it.
Exercising restraint, the Court and JUSTICE WHITE assume for the
sake of argument that, if a prisoner were to make an exceptionally
strong showing of actual innocence, the execution could not go
forward. JUSTICE BLACKMUN, in contrast, would expressly so hold; he
would also announce the precise burden of proof. Compare
ante, at 417 (opinion of the Court) (We assume, "for the
sake of argument in deciding this case, that in a capital case a
truly persuasive demonstration of 'actual innocence' made after
trial would render the execution of a defendant unconstitutional
and warrant federal habeas relief if there were no state avenue
open to process such a claim"), and
ante, at 429 (WHITE, J.,
concurring in judgment) (assuming that a persuasive showing of
actual innocence would render a conviction unconstitutional but
explaining that, even under such an assumption, "petitioner would
at the very least be required to show that based
421
on proffered newly discovered evidence and the entire record
before the jury that convicted him, 'no rational trier of fact
could [find] proof of guilt beyond reasonable doubt.'
Jackson v.
Virginia, 443 U. S. 307, 314
(1979)"), with
post, at 442 (dissenting opinion) ("I would
hold that, to obtain relief on a claim of actual innocence, the
petitioner must show that he probably is innocent"). Resolving the
issue is neither necessary nor advisable in this case. The question
is a sensitive and, to say the least, troubling one. It implicates
not just the life of a single individual, but also the State's
powerful and legitimate interest in punishing the guilty, and the
nature of state-federal relations. Indeed, as the Court
persuasively demonstrates,
ante, at 398-417, throughout our
history the federal courts have assumed that they should not and
could not intervene to prevent an execution so long as the prisoner
had been convicted after a constitutionally adequate trial. The
prisoner's sole remedy was a pardon or clemency.
Nonetheless, the proper disposition of this case is neither
difficult nor troubling. No matter what the Court might say about
claims of actual innocence today, petitioner could not obtain
relief. The record overwhelmingly demonstrates that petitioner
deliberately shot and killed Officers Rucker and Carrisalez the
night of September 29, 1981; petitioner's new evidence is bereft of
credibility. Indeed, despite its stinging criticism of the Court's
decision, not even the dissent expresses a belief that petitioner
might possibly be actually innocent. Nor could it: The record makes
it abundantly clear that petitioner is not somehow the future
victim of "simple murder,"
post, at 446 (dissenting
opinion), but instead himself the established perpetrator of two
brutal and tragic ones.
Petitioner's first victim was Texas Department of Public Safety
Officer David Rucker, whose body was found lying beside his patrol
car. The body's condition indicated that a struggle had taken place
and that Rucker had been shot in the head at rather close range.
Petitioner's Social Security
422
card was found nearby. Shortly after Rucker's body was
discovered, petitioner's second victim, Los Fresnos Police Officer
Enrique Carrisalez, stopped a car speeding away from the murder
scene. When Carrisalez approached, the driver shot him. Carrisalez
lived long enough to identify petitioner as his assailant. Enrique
Hernandez, a civilian who was riding with Carrisalez, also
identified petitioner as the culprit. Moreover, at the time of the
stop, Carrisalez radioed a description of the car and its license
plates to the police station. The license plates corresponded to a
car that petitioner was known to drive. Although the car belonged
to petitioner's girlfriend, she did not have a set of keys;
petitioner did. He even had a set in his pocket at the time of his
arrest.
When the police arrested petitioner, they found more than car
keys; they also found evidence of the struggle between petitioner
and Officer Rucker. Human blood was spattered across the hood, the
left front fender, the grill, and the interior of petitioner's car.
There were spots of blood on petitioner's jeans; blood had even
managed to splash into his wallet. The blood was, like Rucker's and
unlike petitioner's, type A. Blood samples also matched Rucker's
enzyme profile. Only 6% of the Nation's population shares both
Rucker's blood type and his enzyme profile.
But the most compelling piece of evidence was entirely of
petitioner's own making. When the police arrested petitioner, he
had in his possession a signed letter in which he acknowledged
responsibility for the murders; at the end of the letter,
petitioner offered to turn himself in:
"'I am terribly sorry for those [to whom] I have brought grief
... What happened to Rucker was for a certain reason ... [H]e
violated some of [the] laws [of my drug business] and suffered the
penalty, like the one you have for me when the time comes .... The
other officer [Carrisalez] ... had notChing] to do [with] this. He
was out to do what he had to do, protect, but that's life ....
[1]f
423
this is read word for word over the media, I will turn myself in
.... '" Ante, at 395, n. 1.
There can be no doubt about the letter's meaning. When the
police attempted to interrogate petitioner about the killings, he
told them "'it was all in the letter'" and suggested that, if "they
wanted to know what happened," they should read it.
Herrera
v.
State, 682 S. W. 2d 313, 317 (Tex. Crim. App. 1984),
cert. denied, 471 U. S. 1131 (1985).
Now, 10 years after being convicted on that seemingly
dispositive evidence, petitioner has collected four affidavits that
he claims prove his innocence. The affidavits allege that
petitioner's brother, who died six years before the affidavits were
executed, was the killer-and that petitioner was not. Affidavits
like these are not uncommon, especially in capital cases. They are
an unfortunate although understandable occurrence. It seems that,
when a prisoner's life is at stake, he often can find someone new
to vouch for him. Experience has shown, however, that such
affidavits are to be treated with a fair degree of skepticism.
These affidavits are no exception. They are suspect, produced as
they were at the 11th hour with no reasonable explanation for the
nearly decade-long delay. See
ante, at 417-418. Worse, they
conveniently blame a dead mansomeone who will neither contest the
allegations nor suffer punishment as a result of them. Moreover,
they contradict each other on numerous points, including the number
of people in the murderer's car and the direction it was heading
when Officer Carrisalez stopped it.
Ante, at 418. They do
not even agree on when Officer Rucker was killed. According to one,
Rucker was killed when he and the murderer met at a highway rest
stop. Brief for Petitioner 30. In contrast, another asserts that
there was an initial meeting, but that Rucker was not killed until
afterward when he "pulled [the murderer's car] over" on the
highway.
Id., at 27. And the affidavits are inconsistent
with petitioner's own admission of guilt. The affidavits blame
petitioner's deceased
424
brother for
both the Rucker and Carrisalez homicides-even
though petitioner pleaded guilty to murdering Rucker and contested
only the Carrisalez slaying.
Most critical of all, however, the affidavits pale when compared
to the proof at trial. While some bits of circumstantial evidence
can be explained, petitioner offers no plausible excuse for the
most damaging piece of evidence, the signed letter in which
petitioner confessed and offered to turn himself in. One could
hardly ask for more unimpeachable-or more unimpeached-evidence of
guilt.
The conclusion seems inescapable: Petitioner is guilty.
The dissent does not contend otherwise. Instead, it urges us to
defer to the District Court's determination that petitioner's
evidence was not "so insubstantial that it could be dismissed
without any hearing at all."
Post, at 444. I do not read the
District Court's decision as making any such determination. Nowhere
in its opinion did the District Court question the accuracy of the
jury's verdict. Nor did it pass on the sufficiency of the
affidavits. The District Court did not even suggest that it wished
to hold an evidentiary hearing on petitioner's actual innocence
claims. Indeed, the District Court apparently believed that a
hearing would be futile because the court could offer no relief in
any event. As the court explained, claims of "newly discovered
evidence bearing directly upon guilt or innocence" are not
cognizable on habeas corpus "unless the petition implicates a
constitutional violation." App. 38.
As the dissent admits,
post, at 444, the District Court
had an altogether different reason for entering a stay of
execution. It believed, from a "sense of fairness and due process,"
App. 38, that petitioner should have the chance to present his
affidavits to the
state courts. Id., at 38-39;
ante,
at 397. But the District Court did not hold that the state courts
should hold a hearing either; it instead ordered the habeas
petition dismissed and the stay lifted once the state court action
was filed, without further condition. App. 39. As
425
the Court of Appeals recognized, that rationale was insufficient
to support the stay order. Texas courts do not recognize new
evidence claims on collateral review.
Id., at 67-68. Nor
would they entertain petitioner's claim as a motion for a new
trial; under Texas law, such motions must be made within 30 days of
trial. See
ante, at 400, 410; App. 68. Because petitioner
could not have obtained relief-or even a hearing-through the state
courts, it was error for the District Court to enter a stay
permitting him to try.
Of course, the Texas courts would not be free to turn petitioner
away if the Constitution required otherwise. But the District Court
did not hold that the Constitution required them to entertain
petitioner's claim. On these facts, that would be an extraordinary
holding. Petitioner did not raise his claim shortly after Texas'
30-day limit expired; he raised it eight years too late.
Consequently, the District Court would have had to conclude not
that Texas' 30-day limit for new evidence claims was too short to
comport with due process, but that applying an 8-year limit to
petitioner would be. As the Court demonstrates today, see
ante, at 408-411, there is little in fairness or history to
support such a conclusion.
But even if the District Court did hold that further federal
proceedings were warranted, surely it abused its discretion. The
affidavits do not reveal a likelihood of actual innocence. See
ante, at 393-395, 417-419;
supra, at 423-427.
In-person repetition of the affiants' accounts at an evidentiary
hearing could not alter that; the accounts are, on their face and
when compared to the proof at trial, unconvincing. As a result,
further proceedings were improper even under the rather lax
standard the dissent urges, for "'it plainly appear[ed] from the
face of the petition and [the] exhibits annexed to it that the
petitioner [wa]s not entitled to relief.'"
Post, at 445
(quoting 28 U. S. C. § 2254 Rule 4).
The abuse of discretion is particularly egregious given the
procedural posture. The District Court actually entered an order
staying the execution. Such stays on "second or suc-
426
cessive federal habeas petition[s] should be granted only when
there are 'substantial grounds upon which relief might be
granted,'"
Delo v.
Stokes, 495 U. S. 320, 321 (1990)
(quoting
Barefoot v.
Estelle, 463 U. S. 880, 895
(1983)), and only when the equities favor the petitioner, see
Gomez v.
United States Dist. Court for Northern Dist. of
Cal., 503 U. S.
653, 654 (1992) (Whether a claim is framed "as a habeas
petition or as a [42 U. S. C.] § 1983 action, [what is sought is]
an equitable remedy .... A court may consider the last-minute
nature of an application to stay execution in deciding whether to
grant equitable relief"). Petitioner's claim satisfied neither
condition. The grounds petitioner offered in his habeas petition
were anything but substantial. And the equities favored the State.
Petitioner delayed presenting his new evidence until eight years
after conviction-without offering a semblance of a reasonable
excuse for the inordinate delay. At some point in time, the State's
interest in finality must outweigh the prisoner's interest in yet
another round of litigation. In this case, that point was well
short of eight years.
Unless federal proceedings and relief-if they are to be had at
all-are reserved for "extraordinarily high" and "truly persuasive
demonstration[s] of 'actual innocence'" that cannot be presented to
state authorities,
ante, at 417, the federal courts will be
deluged with frivolous claims of actual innocence. Justice Jackson
explained the dangers of such circumstances some 40 years ago:
"It must prejudice the occasional meritorious application to be
buried in a flood of worthless ones. He who must search a haystack
for a needle is likely to end up with the attitude that the needle
is not worth the search." Brown v. Allen, 344 U. S. 443, 537 (1953)
(concurring in result).
If the federal courts are to entertain claims of actual
innocence, their attention, efforts, and energy must be
reserved
427
for the truly extraordinary case; they ought not be forced to
sort through the insubstantial and the incredible as well.
***
Ultimately, two things about this case are clear. First is what
the Court does not hold. Nowhere does the Court state that the
Constitution permits the execution of an actually innocent person.
Instead, the Court assumes for the sake of argument that a truly
persuasive demonstration of actual innocence would render any such
execution unconstitutional and that federal habeas relief would be
warranted if no state avenue were open to process the claim. Second
is what petitioner has not demonstrated. Petitioner has failed to
make a persuasive showing of actual innocence. Not one judge-no
state court judge, not the District Court Judge, none of the three
judges of the Court of Appeals, and none of the Justices of this
Court-has expressed doubt about petitioner's guilt. Accordingly,
the Court has no reason to pass on, and appropriately reserves, the
question whether federal courts may entertain convincing claims of
actual innocence. That difficult question remains open. If the
Constitution's guarantees of fair procedure and the safeguards of
clemency and pardon fulfill their historical mission, it may never
require resolution at all.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
We granted certiorari on the question whether it violates due
process or constitutes cruel and unusual punishment for a State to
execute a person who, having been convicted of murder after a full
and fair trial, later alleges that newly discovered evidence shows
him to be "actually innocent." I would have preferred to decide
that question, particularly since, as the Court's discussion shows,
it is perfectly clear what the answer is: There is no basis in
text, tradition, or even in contemporary practice (if that were
enough) for find-
428
ing in the Constitution a right to demand judicial consideration
of newly discovered evidence of innocence brought forward after
conviction. In saying that such a right exists, the dissenters
apply nothing but their personal opinions to invalidate the rules
of more than two-thirds of the States, and a Federal Rule of
Criminal Procedure for which this Court itself is responsible. If
the system that has been in place for 200 years (and remains widely
approved) "shock[sJ" the dissenters' consciences,
post, at
430, perhaps they should doubt the calibration of their
consciences, or, better still, the usefulness of "conscience
shocking" as a legal test.
I nonetheless join the entirety of the Court's opinion,
including the final portion,
ante, at 417-419-because there
is no legal error in deciding a case by assuming,
arguendo,
that an asserted constitutional right exists, and because I can
understand, or at least am accustomed to, the reluctance of the
present Court to admit publicly that Our Perfect Constitution* lets
stand any injustice, much less the execution of an innocent man who
has received, though to no avail, all the process that our society
has traditionally deemed adequate. With any luck, we shall avoid
ever having to face this embarrassing question again, since it is
improbable that evidence of innocence as convincing as today's
opinion requires would fail to produce an executive pardon.
My concern is that in making life easier for ourselves we not
appear to make it harder for the lower federal courts, imposing
upon them the burden of regularly analyzing
newly-discovered-evidence-of-innocence claims in capital cases (in
which event such federal claims, it can confidently be predicted,
will become routine and even repetitive). A number of Courts of
Appeals have hitherto held, largely in
*My reference is to an article by Professor Monaghan, which
discusses the unhappy truth that not every problem was meant to be
solved by the United States Constitution, nor can be. See Monaghan,
Our Perfect Constitution, 56 N. Y. U. L. Rev. 353 (1981).
429
reliance on our unelaborated statement in
Townsend v.
Sain, 372 U.
S. 293, 317 (1963), that newly discovered evidence relevant
only to a state prisoner's guilt or innocence is not a basis for
federal habeas corpus relief. See,
e. g., Boyd v.
Puckett, 905 F.2d
895, 896-897 (CA5), cert. denied, 498 U. S. 988 (1990);
Stockton v.
Virginia, 852 F.2d
740, 749 (CA4 1988), cert. denied, 489 U. S. 1071 (1989);
Swindle v.
Davis, 846 F.2d
706, 707 (CA111988)
(per curiam); Byrd v.
Armontrout, 880 F.2d
1, 8 (CA8 1989), cert. denied, 494 U. S. 1019 (1990);
Burks v.
Egeler, 512 F.2d
221, 230 (CA6), cert. denied, 423 U. S. 937 (1975). I do not
understand it to be the import of today's decision that those
holdings are to be replaced with a strange regime that assumes
permanently, though only
"arguendo," that a constitutional
right exists, and expends substantial judicial resources on that
assumption. The Court's extensive and scholarly discussion of the
question presented in the present case does nothing but support our
statement in
Townsend and strengthen the validity of the
holdings based upon it.
JUSTICE WHITE, concurring in the judgment.
In voting to affirm, I assume that a persuasive showing of
"actual innocence" made after trial, even though made after the
expiration of the time provided by law for the presentation of
newly discovered evidence, would render unconstitutional the
execution of petitioner in this case. To be entitled to relief,
however, petitioner would at the very least be required to show
that based on proffered newly discovered evidence and the entire
record before the jury that convicted him, "no rational trier of
fact could [find] proof of guilt beyond a reasonable doubt."
Jackson v.
Virginia, 443 U. S. 307, 324
(1979). For the reasons stated in the Court's opinion, petitioner's
showing falls far short of satisfying even that standard, and I
therefore concur in the judgment.
430
JUSTICE BLACKMUN, with whom JUSTICE STEVENS and JUSTICE SOUTER
join with respect to Parts I-IV, dissenting.
Nothing could be more contrary to contemporary standards of
decency, see
Ford v.
Wainwright, 477 U. S. 399, 406
(1986), or more shocking to the conscience, see
Rochin v.
California, 342 U. S. 165, 172
(1952), than to execute a person who is actually innocent.
I therefore must disagree with the long and general discussion
that precedes the Court's disposition of this case. See
ante, at 398-417. That discussion, of course, is dictum
because the Court assumes, "for the sake of argument in deciding
this case, that in a capital case a truly persuasive demonstration
of 'actual innocence' made after trial would render the execution
of a defendant unconstitutional."
Ante, at 417. Without
articulating the standard it is applying, however, the Court then
decides that this petitioner has not made a sufficiently persuasive
case. Because I believe that in the first instance the District
Court should decide whether petitioner is entitled to a hearing and
whether he is entitled to relief on the merits of his claim, I
would reverse the order of the Court of Appeals and remand this
case for further proceedings in the District Court.
I
The Court's enumeration,
ante, at 398-399, of the
constitutional rights of criminal defendants surely is entirely
beside the point. These protections sometimes faiU We really
lane impressive study has concluded that 23 innocent people have
been executed in the United States in this century, including one
as recently as 1984. Bedau & Radelet, Miscarriages of Justice
in Potentially Capital Cases, 40 Stan. L. Rev. 21,36, 173-179
(1987); M. Radelet, H. Bedau, & C. Putnam, In Spite of
Innocence 282-356 (1992). The majority cites this study to show
that clemency has been exercised frequently in capital cases when
showings of actual innocence have been made. See
ante, at
415. But the study also shows that requests for clemency by persons
the authors believe were innocent have been refused. See,
e.
g., Bedau & Radelet, 40 Stan. L. Rev., at 91 (discussing James
Adams who was executed in
431
are being asked to decide whether the Constitution forbids the
execution of a person who has been validly convicted and sentenced
but who, nonetheless, can prove his innocence with newly discovered
evidence. Despite the State of Texas' astonishing protestation to
the contrary, see Tr. of Oral Arg. 37, I do not see how the answer
can be anything but "yes."
A
The Eighth Amendment prohibits "cruel and unusual punishments."
This proscription is not static but rather reflects evolving
standards of decency.
Ford v.
Wainwright, 477 U. S.,
at 406;
Gregg v.
Georgia, 428 U. S. 153, 171 (1976)
(opinion of Stewart, Powell, and STEVENS, JJ.);
Trop v.
Dulles, 356 U.
S. 86, 101 (1958) (plurality opinion);
Weems v.
United States, 217 U. S. 349, 373
(1910). I think it is crystal clear that the execution of an
innocent person is "at odds with contemporary standards of fairness
and decency."
Spaziano v.
Florida, 468 U. S. 447, 465
(1984). Indeed, it is at odds with any standard of decency that I
can imagine.
This Court has ruled that punishment is excessive and
unconstitutional if it is "nothing more than the purposeless and
needless imposition of pain and suffering," or if it is "grossly
out of proportion to the severity of the crime."
Coker v.
Georgia, 433
U. S. 584, 592 (1977) (plurality opinion);
Gregg v.
Georgia, 428 U. S., at 173 (opinion of Stewart, Powell, and
STEVENS, JJ.). It has held that death is an excessive punishment
for rape,
Coker v.
Georgia, 433 U. S., at 592, and
for mere participation in a robbery during which a killing takes
place,
Enmund v.
Florida, 458 U. S. 782, 797
(1982). If it is violative of the Eighth Amendment to execute
someone who is guilty of those crimes, then it plainly is violative
of the Eighth Amendment to execute a person who is actually
innocent. Executing an innocent person epitomizes "the
Florida on May 10, 1984); Radelet, Bedau, & Putnam, In Spite
of Innocence, at 5-10 (same).
432
purposeless and needless imposition of pain and suffering."
Coker v.
Georgia, 433 U. S., at 592.2
The protection of the Eighth Amendment does not end once a
defendant has been validly convicted and sentenced. In
Johnson v.
Mississippi, 486 U. S. 578 (1988), the
petitioner had been convicted of murder and sentenced to death on
the basis of three aggravating circumstances. One of those
circumstances was that he previously had been convicted of a
violent felony in the State of New York. After Johnson had been
sentenced to death, the New York Court of Appeals reversed his
prior conviction. Although there was no question that the prior
conviction was valid at the time of Johnson's sentencing, this
Court held that the Eighth Amendment required review of the
sentence because "the jury was allowed to consider evidence that
has been revealed to be materially inaccurate."
Id., at
590.3 In
Ford v.
Wainwright, the petitioner had been
convicted of murder and sen-
2 It also may violate the Eighth Amendment to imprison someone
who is actually innocent. See
Robinson v.
California,
370 U. S. 660,667
(1962) ("Even one day in prison would be a cruel and unusual
punishment for the 'crime' of having a common cold"). On the other
hand, this Court has noted that" 'death is a different kind of
punishment from any other which may be imposed in this country ....
From the point of view of the defendant, it is different in both
its severity and its finality.' "
Beck v.
Alabama,
447 U. S. 625,
637 (1980), quoting
Gardner v.
Florida, 430 U. S. 349, 357 (1977)
(opinion of STEVENS, J.). We are not asked to decide in this case
whether petitioner's continued imprisonment would violate the
Constitution if he actually is innocent, see Brief for Petitioner
39, n. 52; Tr. of Oral Arg. 3-5, and I do not address that
question.
3 The majority attempts to distinguish
Johnson on the
ground that Mississippi previously had considered claims like
Johnson's by writ of error
coram nobis. Ante, at 406-407. We
considered Mississippi's past practice in entertaining such claims,
however, to determine not whether an Eighth Amendment violation had
occurred but whether there was an independent and adequate state
ground preventing us from reaching the merits of Johnson's claim.
See 486 U. S., at 587-589. Respondent does not argue that there is
any independent and adequate state ground that would prevent us
from reaching the merits in this case.
433
tenced to death. There was no suggestion that he was incompetent
at the time of his offense, at trial, or at sentencing, but
subsequently he exhibited changes in behavior that raised doubts
about his sanity. This Court held that Florida was required under
the Eighth Amendment to provide an additional hearing to determine
whether Ford was mentally competent, and that he could not be
executed if he were incompetent. 477 U. S., at 410 (plurality
opinion); id., at 422-423 (Powell, J., concurring in part and
concurring in judgment). Both
Johnson and
Ford
recognize that capital defendants may be entitled to further
proceedings because of an intervening development even though they
have been validly convicted and sentenced to death.
Respondent and the United States as
amicus curiae argue
that the Eighth Amendment does not apply to petitioner because he
is challenging his guilt, not his punishment. Brief for Respondent
21-23; Brief for United States as
Amicus Curiae 9-12. The
majority attempts to distinguish
Ford on that basis.
Ante, at 405-406.4 Such reasoning, however, not only
contradicts our decision in
Beck v.
Alabama, 447 U. S. 625 (1980), but
also fundamentally misconceives the nature of petitioner's
argument. Whether petitioner is viewed as challenging simply his
death sentence or also his continued detention, he still is
challenging the State's right to punish him. Respondent and the
United States would impose a clear line between guilt and
punishment, reasoning that every claim that concerns guilt
necessarily does not involve punishment. Such a division is far too
facile. What respondent and the United States fail to recognize is
that the
4 The Court also suggests that
Ford is distinguishable
because "unlike the question of guilt or innocence ... the issue of
sanity is properly considered in proximity to the execution."
Ante, at 406. Like insanity, however, newly discovered
evidence of innocence may not appear until long after the
conviction and sentence. In
Johnson, the New York Court of
Appeals decision that required reconsideration of Johnson's
sentence came five years after he had been sentenced to death. 486
U. S., at 580-582.
434
legitimacy of punishment is inextricably intertwined with
guilt.
Beck makes this clear. In
Beck, the petitioner was
convicted of the capital crime of robbery-intentional killing.
Under Alabama law, however, the trial court was prohibited from
giving the jury the option of convicting him of the lesser included
offense of felony murder. We held that precluding the instruction
injected an impermissible element of uncertainty into the guilt
phase of the trial.
"To insure that the death penalty is indeed imposed on the basis
of 'reason rather than caprice or emotion,' we have invalidated
procedural rules that tended to diminish the reliability of the
sentencing determination. The same reasoning must apply to rules
that diminish the reliability of the guilt determination. Thus, if
the unavailability of a lesser included offense instruction
enhances the risk of an unwarranted conviction, [the State] is
constitutionally prohibited from withdrawing that option in a
capital case." Id., at 638 (footnote omitted).
The decision in
Beck establishes that, at least in
capital cases, the Eighth Amendment requires more than reliability
in sentencing. It also mandates a reliable determination of guilt.
See also
Spaziano v.
Florida, 468 U. S., at 456.
The Court also suggests that allowing petitioner to raise his
claim of innocence would not serve society's interest in the
reliable imposition of the death penalty because it might require a
new trial that would be less accurate than the first.
Ante,
at 403-404. This suggestion misses the point entirely. The question
is not whether a second trial would be more reliable than the first
but whether, in light of new evidence, the result of the first
trial is sufficiently reliable for the State to carry out a death
sentence. Furthermore, it is far from clear that a State will seek
to retry the rare prisoner who prevails on a claim of actual
innocence. As explained in Part III,
infra, I believe a
prisoner must show not just that there
435
was probably a reasonable doubt about his guilt but that he is
probably actually innocent. I find it difficult to believe that any
State would choose to retry a person who meets this standard.
I believe it contrary to any standard of decency to execute
someone who is actually innocent. Because the Eighth Amendment
applies to questions of guilt or innocence,
Beck v. Alabama,
447 U. S., at 638, and to persons upon whom a valid sentence of
death has been imposed,
Johnson v.
Mississippi, 486
U. S., at 590, I also believe that petitioner may raise an Eighth
Amendment challenge to his punishment on the ground that he is
actually innocent.
B
Execution of the innocent is equally offensive to the Due
Process Clause of the Fourteenth Amendment. The majority's
discussion misinterprets petitioner's Fourteenth Amendment claim as
raising a procedural, rather than a substantive, due process
challenge.5
"The Due Process Clause of the Fifth Amendment provides that 'No
person shall ... be deprived of life, liberty, or property, without
due process of law .... ' This Court has held that the Due Process
Clause protects individuals against two types of government action.
So-called 'substantive due process' prevents the
5 The majority's explanation for its failure to address
petitioner's substantive due process argument is fatuous. The
majority would deny petitioner the opportunity to bring a
substantive due process claim of actual innocence because a jury
has previously found that he is not actually innocent. See
ante, at 407, n. 6. To borrow a phrase, this "puts the cart
before the horse."
Ibid.
Even under the procedural due process framework of
Medina
v.
California, 505 U. S. 437 (1992), the
majority's analysis is incomplete, for it fails to consider
"whether the rule transgresses any recognized principle of
'fundamental fairness' in operation."
Id., at 448, quoting
Dowling v.
United States, 493 U. S. 342, 352
(1990).
436
government from engaging in conduct that 'shocks the
conscience,' Rochin v. California, 342 U. S. 165, 172
(1952), or interferes with rights 'implicit in the concept of
ordered liberty,' Palko v. Connecticut, 302 U. S. 319, 325-326
(1937). When government action depriving a person of life, liberty,
or property survives substantive due process scrutiny, it must
still be implemented in a fair manner. Mathews v.
Eldridge, 424
U. S. 319, 335 (1976). This requirement has traditionally been
referred to as 'procedural' due process." United States v.
Salerno, 481
U. S. 739, 746 (1987).
Petitioner cites not
Mathews v.
Eldridge, 424 U. S. 319 (1976), or
Medina v.
California, 505 U. S. 437 (1992), in
support of his due process claim, but
Rochin. Brief for
Petitioner 32-33.
Just last Term, we had occasion to explain the role of
substantive due process in our constitutional scheme. Quoting the
second Justice Harlan, we said:
"'[T]he full scope of the liberty guaranteed by the Due Process
Clause cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution. This
"liberty" is not a series of isolated points .... It is a rational
continuum which, broadly speaking, includes a freedom from all
substantial arbitrary impositions and purposeless restraints ....
'" Planned Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833,
848 (1992), quoting Poe v. Ullman, 367 U. S. 497, 543 (1961)
(opinion dissenting from dismissal on jurisdictional grounds).
Petitioner's claim falls within our due process precedents.
In
Rochin, deputy sheriffs investigating narcotics sales
broke into Rochin's room and observed him put two capsules in his
mouth. The deputies attempted to remove the capsules from his mouth
and, having failed, took Rochin to a hospital and had his stomach
pumped. The capsules were
437
found to contain morphine. The Court held that the deputies'
conduct "shock[ed] the conscience" and violated due process. 342 U.
S., at 172. "Illegally breaking into the privacy of the petitioner,
the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents-this course of
proceeding by agents of government to obtain evidence is bound to
offend even hardened sensibilities. They are methods too close to
the rack and the screw to permit of constitutional
differentiation."
Ibid. The lethal injection that petitioner
faces as an allegedly innocent person is certainly closer to the
rack and the screw than the stomach pump condemned in
Rochin. Execution of an innocent person is the ultimate
"'arbitrary impositio[n].'"
Planned Parenthood, 505 U. S.,
at 848. It is an imposition from which one never recovers and for
which one can never be compensated. Thus, I also believe that
petitioner may raise a substantive due process challenge to his
punishment on the ground that he is actually innocent.
C
Given my conclusion that it violates the Eighth and Fourteenth
Amendments to execute a person who is actually innocent, I find no
bar in
Townsend v.
Sain, 372 U. S. 293 (1963), to
consideration of an actual-innocence claim. Newly discovered
evidence of petitioner's innocence does bear on the
constitutionality of his execution. Of course, it could be argued
this is in some tension with
Townsend's statement, id., at
317, that "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." That statement, however, is no
more than distant dictum here, for we never had been asked to
consider whether the execution of an innocent person violates the
Constitution.
II
The majority's discussion of petitioner's constitutional claims
is even more perverse when viewed in the light of this
438
Court's recent habeas jurisprudence. Beginning with a trio of
decisions in 1986, this Court shifted the focus of federal habeas
review of successive, abusive, or defaulted claims away from the
preservation of constitutional rights to a factbased inquiry into
the habeas petitioner's guilt or innocence. See
Kuhlmann v.
Wilson, 477 U.
S. 436, 454 (plurality opinion);
Murray v.
Carrier, 477
U. S. 478, 496;
Smith v.
Murray, 477 U. S. 527, 537; see
also
McCleskey v.
Zant, 499 U. S. 467, 493-494
(1991). The Court sought to strike a balance between the State's
interest in the finality of its criminal judgments and the
prisoner's interest in access to a forum to test the basic justice
of his sentence.
Kuhlmann v.
Wilson, 477 U. S., at
452. In striking this balance, the Court adopted the view of Judge
Friendly that there should be an exception to the concept of
finality when a prisoner can make a colorable claim of actual
innocence. Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970).
Justice Powell, writing for the plurality in
Wilson,
explained the reason for focusing on innocence:
"The prisoner may have a vital interest in having a second
chance to test the fundamental justice of his incarceration. Even
where, as here, the many judges who have reviewed the prisoner's
claims in several proceedings provided by the State and on his
first petition for federal habeas corpus have determined that his
trial was free from constitutional error, a prisoner retains a
powerful and legitimate interest in obtaining his release from
custody if he is innocent of the charge for which he was
incarcerated. That interest does not extend, however, to prisoners
whose guilt is conceded or plain." 477 U. S., at 452.
In other words, even a prisoner who appears to have had a
constitutionally perfect trial "retains a powerful and
legitimate interest in obtaining his release from custody if he
is
439
innocent of the charge for which he was incarcerated." It is
obvious that this reasoning extends beyond the context of
successive, abusive, or defaulted claims to substantive claims of
actual innocence. Indeed, Judge Friendly recognized that
substantive claims of actual innocence should be cognizable on
federal habeas. 38 U. Chi. L. Rev., at 159-160, and n. 87.
Having adopted an "actual-innocence" requirement for review of
abusive, successive, or defaulted claims, however, the majority
would now take the position that "a claim of 'actual innocence' is
not itself a constitutional claim, but instead a gateway through
which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits."
Ante, at
404. In other words, having held that a prisoner who is
incarcerated in violation of the Constitution must show he is
actually innocent to obtain relief, the majority would now hold
that a prisoner who is actually innocent must show a constitutional
violation to obtain relief. The only principle that would appear to
reconcile these two positions is the principle that habeas relief
should be denied whenever possible.
III
The Eighth and Fourteenth Amendments, of course, are binding on
the States, and one would normally expect the States to adopt
procedures to consider claims of actual innocence based on newly
discovered evidence. See
Ford v.
Wainwright, 477 U.
S., at 411-417 (plurality opinion) (minimum requirements for
state-court proceeding to determine competency to be executed). The
majority's disposition of this case, however, leaves the States
uncertain of their constitutional obligations.
A
Whatever procedures a State might adopt to hear actualinnocence
claims, one thing is certain: The possibility of executive clemency
is not sufficient to satisfy the requirements of the Eighth and
Fourteenth Amendments. The majority
440
correctly points out: "'A pardon is an act of grace.'"
Ante, at 413. The vindication of rights guaranteed by the
Constitution has never been made to turn on the unreviewable
discretion of an executive official or administrative tribunal.
Indeed, in
Ford v.
Wainwright, we explicitly rejected
the argument that executive clemency was adequate to vindicate the
Eighth Amendment right not to be executed if one is insane. 477 U.
S., at 416. The possibility of executive clemency "exists in every
case in which a defendant challenges his sentence under the Eighth
Amendment. Recognition of such a bare possibility would make
judicial review under the Eighth Amendment meaningless."
Solem v.
Helm, 463 U. S. 277, 303
(1983).
"The government of the United States has been emphatically
termed a government of laws, and not of men. It will certainly
cease to deserve this high appellation, if the laws furnish no
remedy for the violation of a vested legal right."
Marbury
v.
Madison, 1 Cranch 137, 163 (1803). If the exercise of a
legal right turns on "an act of grace," then we no longer live
under a government of laws. "The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied
by the courts."
West Virginia Bd. of Ed. v.
Barnette,
319 U. S. 624,
638 (1943). It is understandable, therefore, that the majority does
not say that the vindication of petitioner's constitutional rights
may be left to executive clemency.
B
Like other constitutional claims, Eighth and Fourteenth
Amendment claims of actual innocence advanced on behalf of a state
prisoner can and should be heard in state court. If a State
provides a judicial procedure for raising such claims, the prisoner
may be required to exhaust that procedure before taking his claim
of actual innocence to federal court. See 28 U. S. C. §§ 2254(b)
and (c). Furthermore, state-court
441
determinations of factual issues relating to the claim would be
entitled to a presumption of correctness in any subsequent federal
habeas proceeding. See § 2254(d).
Texas provides no judicial procedure for hearing petitioner's
claim of actual innocence and his habeas petition was properly
filed in district court under § 2254. The district court is
entitled to dismiss the petition summarily only if "it plainly
appears from the face of the petition and any exhibits annexed to
it that the petitioner is not entitled to relief." § 2254 Rule 4.
If, as is the case here, the petition raises factual questions and
the State has failed to provide a full and fair hearing, the
district court is required to hold an evidentiary hearing.
Townsend v.
Sain, 372 U. S., at 313.
Because the present federal petition is petitioner's second, he
must either show cause for, and prejudice from, failing to raise
the claim in his first petition or show that he falls within the
"actual-innocence" exception to the cause and prejudice
requirement.
McCleskey v.
Zant, 499 U. S., at
494-495. If petitioner can show that he is entitled to relief on
the merits of his actual-innocence claim, however, he certainly can
show that he falls within the "actual-innocence" exception to the
cause and prejudice requirement and
McCleskey would not bar
relief.
c
The question that remains is what showing should be required to
obtain relief on the merits of an Eighth or Fourteenth Amendment
claim of actual innocence. I agree with the majority that "in state
criminal proceedings the trial is the paramount event for
determining the guilt or innocence of the defendant."
Ante,
at 416. I also think that "a truly persuasive demonstration of
'actual innocence' made after trial would render the execution of a
defendant unconstitutional."
Ante, at 417. The question is
what "a truly persuasive demonstration" entails, a question the
majority's disposition of this case leaves open.
442
In articulating the "actual-innocence" exception in our habeas
jurisprudence, this Court has adopted a standard requiring the
petitioner to show a "'fair probability that, in light of all the
evidence ... , the trier of the facts would have entertained a
reasonable doubt of his guilt.'"
Kuhlmann v.
Wilson,
477 U. S., at 455, n. 17. In other words, the habeas petitioner
must show that there probably would be a reasonable doubt. See also
Murray v.
Carrier, 477 U. S., at 496 (exception
applies when a constitutional violation has "probably resulted" in
a mistaken conviction);
McCleskey v.
Zant, 499 U. S.,
at 494 (exception applies when a constitutional violation "probably
has caused" a mistaken conviction).6
I think the standard for relief on the merits of an
actualinnocence claim must be higher than the threshold standard
for merely reaching that claim or any other claim that has been
procedurally defaulted or is successive or abusive. I would hold
that, to obtain relief on a claim of actual innocence, the
petitioner must show that he probably is innocent. This standard is
supported by several considerations. First, new evidence of
innocence may be discovered long after the defendant's conviction.
Given the passage of time, it may
6 Last Term in
Sawyer v.
Whitley, 505 U. S. 333 (1992),
this Court adopted a different standard for determining whether a
federal habeas petitioner bringing a successive, abusive, or
defaulted claim has shown "actual innocence" of the death penalty.
Under
Sawyer, the petitioner must "show by clear and
convincing evidence that, but for a constitutional error, no
reasonable juror would have found the petitioner eligible for the
death penalty under applicable state law."
Id., at 336. That
standard would be inappropriate here. First, it requires a showing
of constitutional error in the trial process, which, for reasons
already explained, is inappropriate when petitioner makes a
substantive claim of actual innocence. Second, it draws its "no
reasonable juror" standard from the standard for sufficiency of the
evidence set forth in
Jackson v.
Virginia, 443 U. S. 307 (1979). As
I explain below, however, sufficiency of the evidence review
differs in important ways from the question of actual innocence.
Third, the Court developed this standard for prisoners who are
concededly guilty of capital crimes. Here, petitioner claims that
he is actually innocent of the capital crime.
443
be difficult for the State to retry a defendant who obtains
relief from his conviction or sentence on an actual-innocence
claim. The actual-innocence proceeding thus may constitute the
final word on whether the defendant may be punished. In light of
this fact, an otherwise constitutionally valid conviction or
sentence should not be set aside lightly. Second, conviction after
a constitutionally adequate trial strips the defendant of the
presumption of innocence. The government bears the burden of
proving the defendant's guilt beyond a reasonable doubt,
Jackson v.
Virginia, 443 U. S. 307, 315
(1979);
In re Winship, 397 U. S. 358, 364
(1970), but once the government has done so, the burden of proving
innocence must shift to the convicted defendant. The
actual-innocence inquiry is therefore distinguishable from review
for sufficiency of the evidence, where the question is not whether
the defendant is innocent but whether the government has met its
constitutional burden of proving the defendant's guilt beyond a
reasonable doubt. When a defendant seeks to challenge the
determination of guilt after he has been validly convicted and
sentenced, it is fair to place on him the burden of proving his
innocence, not just raising doubt about his guilt.
In considering whether a prisoner is entitled to relief on an
actual-innocence claim, a court should take all the evidence into
account, giving due regard to its reliability. See
Sawyer v.
Whitley, 505 U. S., at 339, n. 5 (1992);
Kuhlmann v.
Wilson, 477 U. S., at 455, n. 17; Friendly, 38 U. Chi. L.
Rev., at 160. Because placing the burden on the prisoner to prove
innocence creates a presumption that the conviction is valid, it is
not necessary or appropriate to make further presumptions about the
reliability of newly discovered evidence generally. Rather, the
court charged with deciding such a claim should make a case-by-case
determination about the reliability of the newly discovered
evidence under the circumstances. The court then should weigh the
evidence in favor of the prisoner against the evidence of his
guilt.
444
Obviously, the stronger the evidence of the prisoner's guilt,
the more persuasive the newly discovered evidence of innocence must
be. A prisoner raising an actual-innocence claim in a federal
habeas petition is not entitled to discovery as a matter of right.
Harris v.
Nelson, 394 U. S. 286, 295
(1969); 28 u. S. C. § 2254 Rule 6. The district court retains
discretion to order discovery, however, when it would help the
court make a reliable determination with respect to the prisoner's
claim.
Harris v.
Nelson, 394 U. S., at 299-300; see
Advisory Committee Note on Rule 6, 28 U. S. C., pp. 421-422.
It should be clear that the standard I would adopt would not
convert the federal courts into" 'forums in which to relitigate
state trials.'"
Ante, at 401, quoting
Barefoot v.
Estelle, 463
U. S. 880, 887 (1983). It would not "require the habeas court
to hear testimony from the witnesses who testified at trial,"
ante, at 402, though, if the petition warrants a hearing, it
may require the habeas court to hear the testimony of "those who
made the statements in the affidavits which petitioner has
presented."
Ibid. I believe that if a prisoner can show that
he is probably actually innocent, in light of all the evidence,
then he has made "a truly persuasive demonstration,"
ante,
at 417, and his execution would violate the Constitution. I would
so hold.
IV
In this case, the District Court determined that petitioner's
newly discovered evidence warranted further consideration. Because
the District Court doubted its own authority to consider the new
evidence, it thought that petitioner's claim of actual innocence
should be brought in state court, see App. 38-39, but it clearly
did not think that petitioner's evidence was so insubstantial that
it could be dismissed without any hearing at alP I would reverse
the order of the
7 JUSTICE O'CONNOR reads too much into the fact that the
District Court failed to pass on the sufficiency of the affidavits,
did not suggest that it wished to hold an evidentiary hearing, and
did not retain jurisdiction after
445
Court of Appeals and remand the case to the District Court to
consider whether petitioner has shown, in light of all the
evidence, that he is probably actually innocent.
I think it is unwise for this Court to step into the shoes of a
district court and rule on this petition in the first instance. If
this Court wishes to act as a district court, however, it must also
be bound by the rules that govern consideration of habeas petitions
in district court. A district court may summarily dismiss a habeas
petition only if "it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not entitled
to relief." 28 U. S. C. § 2254 Rule 4. In one of the affidavits,
Hector Villarreal, a licensed attorney and former state court
judge, swears under penalty of perjury that his client Raul
Herrera, Sr., confessed that he, and not petitioner, committed the
murders. No matter what the majority may think of the
inconsistencies in the affidavits or the strength of the evidence
presented at trial, this affidavit alone is sufficient to raise
factual questions concerning petitioner's innocence that cannot be
resolved simply by examining the affidavits and the petition.
I do not understand why the majority so severely faults
petitioner for relying only on affidavits.
Ante, at 417. It
is common to rely on affidavits at the preliminary-consideration
stage of a habeas proceeding. The opportunity for crossexamination
and credibility determinations comes at the hearing, assuming that
the petitioner is entitled to one. It makes no sense for this Court
to impugn the reliability of petitioner's evidence on the ground
that its credibility has not been tested when the reason its
credibility has not been tested is that petitioner's habeas
proceeding has been truncated by the Court of Appeals and now by
this Court. In its haste to deny petitioner relief, the majority
seems to confuse the question whether the petition may be
dismissed
the state-court action was filed.
Ante, at 424. The
explanation for each of these actions, as JUSTICE O'CONNOR notes,
is that the District Court believed that it could offer no relief
in any event.
Ibid.
446
summarily with the question whether petitioner is entitled to
relief on the merits of his claim.
V
I have voiced disappointment over this Court's obvious eagerness
to do away with any restriction on the States' power to execute
whomever and however they please. See
Coleman v.
Thompson, 501
U. S. 722, 758-759 (1991) (dissenting opinion). See also
Coleman v.
Thompson, 504 U. S. 188, 189 (1992)
(dissent from denial of stay of execution). I have also expressed
doubts about whether, in the absence of such restrictions, capital
punishment remains constitutional at all.
Sawyer v.
Whitley, 505 U. S., at 343-345 (opinion concurring in
judgment). Of one thing, however, I am certain. Just as an
execution without adequate safeguards is unacceptable, so too is an
execution when the condemned prisoner can prove that he is
innocent. The execution of a person who can show that he is
innocent comes perilously close to simple murder.
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