OCTOBER TERM, 1991
Syllabus
SAWYER
v. WHITLEY, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 91-6382. Argued February 25, 1992-Decided June 22,1992
A Louisiana jury convicted petitioner Sawyer and sentenced him
to death for a murder in which the victim was beaten, scalded with
boiling water, and set afire. His conviction and sentence were
upheld on appeal, and his petitions for state postconviction
relief, as well as his first petition for federal habeas relief,
were denied. In a second federal habeas petition, the District
Court barred as abusive or successive Sawyer's claims,
inter
alia, that the police failed to produce exculpatory
evidence-evidence challenging a prosecution witness' credibility
and a child witness' statements that Sawyer had tried to prevent an
accomplice from setting fire to the victim-in violation of his due
process rights under
Brady v.
Maryland, 373 U. S. 83; and that his
trial counsel's failure to introduce mental health records as
mitigating evidence in his trial's sentencing phase constituted
ineffective assistance of counsel. The Court of Appeals affirmed,
holding that Sawyer had not shown cause for failure to raise his
claims in his earlier petition, and that it could not otherwise
reach the claims' merits because he had not shown that he was
"actually innocent" of the death penalty under Louisiana law.
Held:
1. To show "actual innocence" one 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 the applicable state law. pp.338-347.
(a) Generally, a habeas petitioner must show cause and prejudice
before a court will reach the merits of a successive, abusive, or
defaulted claim. Even if he cannot meet this standard, a court may
hear the merits of such claims if failure to hear them would result
in a miscarriage of justice. See,
e. g.,
Kuhlmann v.
Wilson, 477 U. S. 436. The
miscarriage of justice exception applies where a petitioner is
"actually innocent" of the crime of which he was convicted or the
penalty which was imposed. While it is not easy to define what is
meant by "actually innocent" of the death penalty, the exception is
very narrow and must be determined by relatively objective
standards. Pp. 338-341.
(b) In order to avoid arbitrary and capricious impositions of
the death sentence, States have adopted narrowing factors to limit
the class of offenders upon which the death penalty may be imposed,
as evidenced
334
Syllabus
by Louisiana's definition of capital murder as something more
than intentional killing and its requirement that before a jury may
recommend death, it must determine that at least one of a list of
statutory aggravating factors exists. Once eligibility for the
death penalty is established, however, the emphasis shifts from
narrowing the class of eligible defendants by objective factors to
individualized consideration of a particular defendant by the
introduction of mitigating evidence. Within this framework, the
Court of Appeals applied the proper standard to determine "actual
innocence" when it required Sawyer to base his showing that no
reasonable juror would have found him eligible for the death
penalty under Louisiana law on the elements of the crime itself and
the existence of aggravating circumstances, but not the existence
of additional mitigating evidence that was not introduced as a
result of a claimed constitutional error. This standard hones in on
the objective factors that must be shown to exist before a
defendant is eligible to have the death penalty imposed. The
adoption of a stricter definition, which would limit any showing to
the elements of the crime, is rejected, since, by stating in
Smith v.
Murray, 477 U. S. 527, 537, that
actual innocence could mean innocent of the death penalty, this
Court suggested a more expansive meaning than simply innocence of
the capital offense itself. Also rejected is a more lenient
definition, which would allow the showing to extend beyond the
elements of the crime and the aggravating factors, to include
mitigating evidence which bears, not on the defendant's eligibility
to receive the death penalty, but only on the ultimate
discretionary decision between that penalty and life imprisonment.
Including mitigating factors would make actual innocence mean
little more than what is already required to show prejudice for
purposes of securing habeas relief and would broaden the inquiry
beyond what is a narrow exception to the principle of finality.
Pp.341-347.
2. Sawyer has failed to show that he is actually innocent of the
death penalty to which he has been sentenced. The psychological
evidence allegedly kept from the jury does not relate to his guilt
or innocence of the crime or to the aggravating factors found by
the jury-that the murder was committed in the course of an
aggravated arson, and that it was especially cruel, atrocious, or
heinous-which made him eligible for the death penalty. Nor can it
be said that had this evidence been before the jury a reasonable
juror would not have found both of the aggravating factors. The
evidence allegedly kept from the jury due to an alleged
Brady violation also fails to show actual innocence.
Latterday impeachment evidence seldom, if ever, makes a clear and
convincing showing that no reasonable juror would have believed the
heart of the witness' account. While the statement that Sawyer did
not set fire to the victim goes to the jury's finding of aggravated
arson and, thus, to
335
his guilt or innocence and the first aggravating circumstance,
it fails to show that no rational juror would find both of the
aggravating factors. The murder was especially cruel, atrocious,
and heinous quite apart from the arson, and, even crediting the
hearsay statement, it cannot be said that no reasonable juror would
have found that he was guilty of the arson for his participation
under Louisiana law. Pp. 347-350.
945 F.2d
812, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. BLACKMUN,
J., filed an opinion concurring in the judgment,
post, p.
350. STEVENS, J., filed an opinion concurring in the judgment, in
which BLACKMUN and O'CONNOR, JJ., joined,
post, p. 360.
R. Neal Walker argued the cause for petitioner. With him
on the briefs were
Nicholas J. Trenticosta and
Sarah L. Ottinger.
Dorothy A. Pendergast argued the cause for
respondent.
With her on the brief was
John M. Mamoulides.
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,
Deputy Solicitor General Roberts, and Associate Deputy Attorney
General McBride.
*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The issue before the Court is the standard for determining
whether a petitioner bringing a successive, abusive, or defaulted
federal habeas claim has shown he is "actually innocent" of the
death penalty to which he has been sentenced so that the court may
reach the merits of the claim. Robert Wayne Sawyer, the petitioner
in this case, filed a second
*Douglas G.
Robinson, Julius L. Chambers, George H.
Kendall, and
Larry W Yackle filed a brief for the NAACP
Legal Defense and Educational Fund, Inc., as
amicus curiae
urging reversal.
Kent Scheidegger and
Charles L. Hobson filed a
brief for the Criminal Justice Legal Foundation as
amicus
curiae urging affirmance.
336
federal habeas petition containing successive and abusive
claims. The Court of Appeals for the Fifth Circuit refused to
examine the merits of Sawyer's claims. It held that Sawyer had not
shown cause for failure to raise these claims in his earlier
petition, and that he had not shown that he was "actually innocent"
of the crime of which he was convicted or the penalty which was
imposed.
945 F.2d
812 (1991). We affirm the Court of Appeals and hold that to
show "actual innocence" one 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 the applicable state law.
In 1979-13 years ago-petitioner and his accomplice, Charles
Lane, brutally murdered Frances Arwood, who was a guest in the home
petitioner shared with his girlfriend, Cynthia Shano, and Shano's
two young children. As we recounted in our earlier review of this
case,
Sawyer v.
Smith, 497 U. S. 227 (1990),
petitioner and Lane returned to petitioner's home after a night of
drinking and argued with Arwood, accusing her of drugging one of
the children. Petitioner and Lane then attacked Arwood, beat her
with their fists, kicked her repeatedly, submerged her in the
bathtub, and poured scalding water on her before dragging her back
into the living room, pouring lighter fluid on her body and
igniting it. Arwood lost consciousness sometime during the attack
and remained in a coma until she died of her injuries approximately
two months later. Shano and her children were in the home during
the attack, and Shano testified that petitioner prevented them from
leaving.1
At trial, the jury failed to credit petitioner's "toxic
psychosis" defense, and convicted petitioner of first-degree
murder. At the sentencing phase, petitioner testified that he was
intoxicated at the time of the murder and remembered
1 The facts are more fully recounted in the opinion of the
Louisiana Supreme Court affirming petitioner's conviction and
sentence.
State v.
Sawyer, 422 So. 2d 95, 97-98
(1982).
337
only bits and pieces of the events. Petitioner's sister, Glenda
White, testified about petitioner's deprived childhood, about his
affection and care for her children, and that as a teenager
petitioner had been confined to a mental hospital for "no reason,"
where he had undergone shock therapy. 2 App. 505-516. The jury
found three statutory aggravating factors and no statutory
mitigating factors and sentenced petitioner to death.2
Sawyer's conviction and sentence were affirmed on appeal by the
Louisiana Supreme Court.
State v.
Sawyer, 422 So. 2d
95 (1982). We granted certiorari, and vacated and remanded with
instructions to reconsider in light of
Zant v.
Stephens, 462
U. S. 862 (1983).
Sawyer v.
Louisiana, 463 U. S.
1223 (1983). On remand, the Louisiana Supreme Court reaffirmed the
sentence.
Sawyer v.
State, 442 So. 2d 1136 (1983),
cert. denied, 466 U. S. 931 (1984). Petitioner's first petition for
state postconviction relief was denied.
Louisiana ex rel.
Sawyer v.
Maggio, 479 So. 2d 360, reconsideration
denied, 480 So. 2d 313 (La. 1985).3 In 1986, Sawyer filed his first
federal habeas petition, raising 18 claims, all of which were
denied on the merits. See
Sawyer v.
Butler, 848 F.2d
582 (CA5 1988), aff'd on rehearing en bane,
881 F.2d
1273 (CA5 1989). We again granted certiorari and affirmed the
Court of Appeals' denial of relief.
Sawyer v.
Smith,
supra.4
2 The jury found the following statutory aggravating factors:
"(1) that [Sawyer] was engaged in the commission of aggravated
arson, (2) that the offense was committed in an especially cruel,
atrocious and heinous manner, and (3) that [Sawyer] had previously
been convicted of an unrelated murder."
Id., at 100. The
Louisiana Supreme Court held that the last aggravating circumstance
was not supported by the evidence.
Id., at 101.
3 The Louisiana Supreme Court twice remanded to the trial court
for hearings on petitioner's ineffective-assistance-of-counsel
claim.
Louisiana ex rel. Sawyer v.
Maggio, 450 So. 2d
355 (1984);
Louisiana ex rel. Sawyer v.
Maggio, 468
So. 2d 554 (1985).
4 In this earlier review, we held that
Caldwell v.
Mississippi, 472 U. S. 320 (1985),
could not be applied retroactively to petitioner's case under
Teague v.
Lane, 489 U. S. 288 (1989).
338
Petitioner next filed a second motion for state postconviction
relief. The state trial court summarily denied this petition as
repetitive and without merit, and the Louisiana Supreme Court
denied discretionary review. See 945 F. 2d, at 815.
The present petition before this Court arises out of Sawyer's
second petition for federal habeas relief. After granting a stay
and holding an evidentiary hearing, the District Court denied one
of Sawyer's claims on the merits and held that the others were
barred as either abusive or successive. 772 F. Supp. 297 (ED La.
1991). The Court of Appeals granted a certificate of probable cause
on the issue whether petitioner had shown that he is actually
"innocent of the death penalty" such that a court should reach the
merits of the claims contained in this successive petition. 945 F.
2d, at 814. The Court of Appeals held that petitioner had failed to
show that he was actually innocent of the death penalty because the
evidence he argued had been unconstitutionally kept from the jury
failed to show that Sawyer was ineligible for the death penalty
under Louisiana law. For the third time we granted Sawyer's
petition for certiorari, 502 U. S. 965 (1991), and we now
affirm.
Unless a habeas petitioner shows cause and prejudice, see
Wainwright v.
Sykes, 433 U. S. 72 (1977), a
court may not reach the merits of: (a)
successive claims
that raise grounds identical to grounds heard and decided on the
merits in a previous petition,
Kuhlmann v.
Wilson,
477 U. S. 436
(1986); (b) new claims, not previously raised, which constitute an
abuse of the writ, McCleskey v.
Zant, 499 U. S. 467 (1991); or
(c)
procedurally defaulted claims in which the petitioner
failed to follow applicable state procedural rules in raising the
claims,
Murray v.
Carrier, 477 U. S. 478 (1986).
These cases are premised on our concerns for the finality of state
judgments of conviction and the "significant costs of federal
habeas review."
McCleskey, supra, at 490-491; see,
e. g.,
Engle v.
Isaac, 456 U. S. 107, 126-128
(1982).
339
We have previously held that even if a state prisoner cannot
meet the cause and prejudice standard, a federal court may hear the
merits of the successive claims if the failure to hear the claims
would constitute a "miscarriage of justice." In a trio of 1986
decisions, we elaborated on the miscarriage of justice, or "actual
innocence," exception. As we explained in
Kuhlmann v.
Wilson, supra, the exception developed from the language of
the federal habeas statute, which, prior to 1966, allowed
successive claims to be denied without a hearing if the judge were
"satisfied that the
ends of justice will not be served by such
inquiry." Id., at 448. We held that despite the removal of this
statutory language from 28 U. s. C. § 2244(b) in 1966, the
miscarriage of justice exception would allow successive claims to
be heard if the petitioner "establish[es] that under the probative
evidence he has a colorable claim of factual innocence."
Kuhlmann, supra, at 454.5 In the second of these cases we
held that the actual innocence exception also applies to
procedurally defaulted claims.
Murray v.
Carrier,
supra.6
In
Smith v.
Murray, 477 U. S. 527 (1986), we
found no miscarriage of justice in the failure to examine the
merits of procedurally defaulted claims in the capital sentencing
context. We emphasized that the miscarriage of justice exception is
concerned with actual as compared to legal innocence,
5 Our standard for determining actual innocence was articulated
in
Kuhlmann as: "[T]he prisoner must 'show a fair
probability that, in light of all the evidence, including that
alleged to have been illegally admitted (but with due regard to any
unreliability of it) and evidence tenably claimed to have been
wrongly excluded or to have become available only after the trial,
the trier of the facts would have entertained a reasonable doubt of
his guilt.''' 477 U. S., at 455, n. 17, quoting Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38
U. Chi. L. Rev. 142, 160 (1970).
6We stated that the merits of a defaulted claim could be reached
"in an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually innocent
.... "
Murray v.
Carrier, 477 U. S., at 496.
340
and acknowledged that actual innocence "does not translate
easily into the context of an alleged error at the sentencing phase
of a trial on a capital offense."
Id., at 537. We decided
that the habeas petitioner in that case had failed to show actual
innocence of the death penalty because the "alleged constitutional
error neither precluded the development of true facts nor resulted
in the admission of false ones."
Id., at 538.
In subsequent cases, we have emphasized the narrow scope of the
fundamental miscarriage of justice exception. In
Dugger v.
Adams, 489 U.
S. 401 (1989), we rejected the petitioner's claim that his
procedural default should be excused because he had shown that he
was actually innocent. Without endeavoring to define what it meant
to be actually innocent of the death penalty, we stated that
"[d]emonstrating that an error is by its nature the kind of error
that might have affected the accuracy of a death sentence is far
from demonstrating that an individual defendant probably is
'actually innocent' of the sentence he or she received."
Id., at 412, n. 6. Just last Term in
McCleskey v.
Zant, supra, at 502, we held that the "narrow exception" for
miscarriage of justice was of no avail to the petitioner because
the constitutional violation, if it occurred, "resulted in the
admission at trial of truthful inculpatory evidence which did not
affect the reliability of the guilt determination."
The present case requires us to further amplify the meaning of
"actual innocence" in the setting of capital punishment. A
prototypical example of "actual innocence" in a colloquial sense is
the case where the State has convicted the wrong person of the
crime. Such claims are of course regularly made on motions for new
trial after conviction in both state and federal courts, and quite
regularly denied because the evidence adduced in support of them
fails to meet the rigorous standards for granting such motions. But
in rare instances it may turn out later, for example, that another
person has credibly confessed to the crime, and it is evident
341
that the law has made a mistake. In the context of a noncapital
case, the concept of "actual innocence" is easy to grasp.
It is more difficult to develop an analogous framework when
dealing with a defendant who has been sentenced to death. The
phrase "innocent of death" is not a natural usage of those words,
but we must strive to construct an analog to the simpler situation
represented by the case of a noncapital defendant. In defining this
analog, we bear in mind that the exception for "actual innocence"
is a very narrow exception, and that to make it workable it must be
subject to determination by relatively objective standards. In the
every day context of capital penalty proceedings, a federal
district judge typically will be presented with a successive or
abusive habeas petition a few days before, or even on the day of, a
scheduled execution, and will have only a limited time to determine
whether a petitioner has shown that his case falls within the
"actual innocence" exception if such a claim is made.7
Since our decision in
Furman v.
Georgia, 408 U. S. 238 (1972), our
Eighth Amendment jurisprudence has required those States imposing
capital punishment to adopt procedural safeguards protecting
against arbitrary and capricious impositions of the death sentence.
See,
e. g., Gregg v.
Georgia, 428 U. S. 153 (1976);
Proffitt v.
Florida, 428 U. S. 242 (1976);
Jurek v.
Texas, 428 U. S. 262 (1976). In
response, the States have adopted various narrowing factors that
limit the
7 While we recognize this as a fact on the basis of our own
experience with applications for stays of execution in capital
cases, we regard it as a regrettable fact. We of course do not in
the least condone, but instead condemn, any efforts on the part of
habeas petitioners to delay their filings until the last minute
with a view to obtaining a stay because the district court will
lack time to give them the necessary consideration before the
scheduled execution. A court may resolve against such a petitioner
doubts and uncertainties as to the sufficiency of his submission.
See
Gomez v.
United States Dist. Gourt for Northern Dist.
of Gal., 503 U.
S. 653 (1992)
(per curiam).
342
class of offenders upon which the sentencer is authorized to
impose the death penalty. For example, the Louisiana statute under
which petitioner was convicted defines first-degree murder, a
capital offense, as something more than intentional killing.8 In
addition, after a defendant is found guilty in Louisiana of capital
murder, the jury must also find at the sentencing phase beyond a
reasonable doubt at least one of a list of statutory aggravating
factors before it may recommend that the death penalty be
imposed.9
But once eligibility for the death penalty has been established
to the satisfaction of the jury, its deliberations assume a
different tenor. In a series of cases beginning with
Lockett
v.
Ohio, 438
U. S. 586, 604 (1978), we have held that the
8 Louisiana Rev. Stat. Ann. § 14:30 (West 1986 and Supp. 1992)
defines first-degree murder:
"First degree murder is the killing of a human being:
"(1) When the offender has specific intent to kill or to inflict
great bodily harm and is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, second degree kidnapping,
aggravated escape, aggravated arson, aggravated rape, forcible
rape, aggravated burglary, armed robbery, first degree robbery or
simple robbery;
"(2) When the offender has a specific intent to kill or to
inflict great bodily harm upon a fireman or peace officer engaged
in the performance of his lawful duties;
"(3) When the offender has a specific intent to kill or to
inflict great bodily harm upon more than one person; or
"(4) When the offender has specific intent to kill or inflict
great bodily harm and has offered, has been offered, has given, or
has received anything of value for the killing.
''Whoever commits the crime of first degree murder shall be
punished by death or life imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence in
accordance with the determination of the jury."
9 At the time of petitioner's trial La. Code Crim. Proc. Ann.,
Art. 905.3 (West 1984), provided: "A sentence of death shall not be
imposed unless the jury finds beyond a reasonable doubt that at
least one statutory aggravating circumstance exists and, after
consideration of any mitigating circumstances, recommends that the
sentence of death be imposed."
343
defendant must be permitted to introduce a wide variety of
mitigating evidence pertaining to his character and background. The
emphasis shifts from narrowing the class of eligible defendants by
objective factors to individualized consideration of a particular
defendant. Consideration of aggravating factors together with
mitigating factors, in various combinations and methods dependent
upon state law, results in the jury's or judge's ultimate decision
as to what penalty shall be imposed.
Considering Louisiana law as an example, then, there are three
possible ways in which "actual innocence" might be defined. The
strictest definition would be to limit any showing to the elements
of the crime which the State has made a capital offense. The
showing would have to negate an essential element of that offense.
The Solicitor General, filing as
amicus curiae in support of
respondent, urges the Court to adopt this standard. We reject this
submission as too narrow, because it is contrary to the statement
in
Smith that the concept of "actual innocence" could be
applied to mean "innocent" of the death penalty. 477 U. S., at 537.
This statement suggested a more expansive meaning to the term of
"actual innocence" in a capital case than simply innocence of the
capital offense itself.
The most lenient of the three possibilities would be to allow
the showing of "actual innocence" to extend not only to the
elements of the crime, but also to the existence of aggravating
factors, and to mitigating evidence that bore not on the
defendant's eligibility to receive the death penalty, but only on
the ultimate discretionary decision between the death penalty and
life imprisonment. This, in effect, is what petitioner urges upon
us. He contends that actual innocence of the death penalty exists
where "there is a 'fair probability' that the admission of false
evidence, or the preclusion of true mitigating evidence, [caused by
a constitutional error] resulted in a sentence of death." Brief for
Petitioner 18 (cita-
344
tion and footnote omitted).lO Although petitioner describes his
standard as narrower than that adopted by the Eighth and Ninth
Circuits,l1 in reality it is only more closely related to the facts
of his case in which he alleges that constitutional error kept true
mitigating evidence from the jury. The crucial consideration,
according to petitioner, is whether due to constitutional error the
sentencer was presented with "'a
factually inaccurate sentencing
profile'" of the petitioner. Brief for Petitioner 15, n. 21,
quoting
Johnson v.
Singletary, 938
F.2d 1166, 1200 (CAll 1991) (en bane) (Anderson, J.,
dissenting).
Insofar as petitioner's standard would include not merely the
elements of the crime itself, but the existence of aggravating
circumstances, it broadens the extent of the inquiry but not the
type of inquiry. Both the elements of the crime and statutory
aggravating circumstances in Louisiana are
10 Petitioner's standard derives from language in
Smith
v.
Murray, 477 U. S. 527 (1986). Petitioner maintains that
Smith holds that if one can show that the error precludes
the development of true mitigating evidence, actual innocence has
been shown. Brieffor Petitioner 21. By emphasizing that in
Smith the fundamental miscarriage of justice exception had
not been met because,
inter alia, the constitutional error
did not lead the jury to consider any false evidence, we did not
hold its converse, that an error which leads to the consideration
of "false" mitigating evidence amounts to a miscarriage of
justice.
11 In
Deutscher v.
Whitley, 946
F.2d 1443 (1991), the Ninth Circuit phrased its test as
follows: "To establish a fundamental miscarriage of justice at
sentencing, a defendant must establish that constitutional error
substantially undermined the accuracy of the capital sentencing
determination. This requires a showing that constitutional error
infected the sentencing process to such a degree that it is more
probable than not that, but for constitutional error, the sentence
of death would not have been imposed."
Id., at 1446
(citations omitted).
The Eighth Circuit has adopted a similar test: "'In the
penalty-phase context, this exception will be available if the
federal constitutional error alleged probably resulted in a verdict
of death against one whom the jury would otherwise have sentenced
to life imprisonment.'''
Stokes v.
Armontrout,
893 F.2d
152, 156 (1989), quoting
Smith v.
Armontrout,
888 F.2d
530, 545 (1989).
345
used to narrow the class of defendants eligible for the death
penalty. And proof or disproof of aggravating circumstances, like
proof of the elements of the crime, is confined by the statutory
definitions to a relatively obvious class of relevant evidence.
Sensible meaning is given to the term "innocent of the death
penalty" by allowing a showing in addition to innocence of the
capital crime itself a showing that there was no aggravating
circumstance or that some other condition of eligibility had not
been met.12
But we reject petitioner's submission that the showing should
extend beyond these elements of the capital sentence to the
existence of additional mitigating evidence. In the first place,
such an extension would mean that "actual innocence" amounts to
little more than what is already required to show "prejudice," a
necessary showing for habeas relief for many constitutional errors.
See,
e. g., United States v.
Bagley, 473 U. S. 667, 682
(1985);
Strickland v.
Washington, 466 U. S. 668, 694
(1984). If federal habeas review of capital sentences is to be at
all rational, petitioner must show something more in order for a
court to reach the merits of his claims on a successive habeas
petition than he would have had to show to obtain relief on his
first habeas petition.13
But, more importantly, petitioner's standard would so broaden
the inquiry as to make it anything but a "narrow" exception to the
principle of finality that we have previously described it to be. A
federal district judge confronted with
12 Louisiana narrows the class of those eligible for the death
penalty by limiting the type of offense for which it may be
imposed, and by requiring a finding of at least one aggravating
circumstance. See
supra, at 342. Statutory provisions for
restricting eligibility may, of course, vary from State to
State.
13 If a showing of actual innocence were reduced to actual
prejudice, it would allow the evasion of the cause and prejudice
standard which we have held also acts as an "exception" to a
defaulted, abusive, or successive claim. In practical terms a
petitioner would no longer have to show cause, contrary to our
prior cases.
McCleskey v.
Zant, 499 U. S. 467, 494495
(1991);
Carrier, 477 U. S., at 493.
346
a claim of actual innocence may with relative ease determine
whether a submission, for example, that a killing was not
intentional, consists of credible, noncumulative, and admissible
evidence negating the element of intent. But it is a far more
difficult task to assess how jurors would have reacted to
additional showings of mitigating factors, particularly considering
the breadth of those factors that a jury under our decisions must
be allowed to consider.14
The Court of Appeals in this case took the middle ground among
these three possibilities for defining "actual innocence" of the
death penalty, and adopted this test:
"[WJe must require the petitioner to show, based on the evidence
proffered plus all record evidence, a fair probability that a
rational trier of fact would have entertained a reasonable doubt as
to the existence of those facts which are prerequisites under state
or federal law for the imposition of the death penalty." 945 F. 2d,
at 820 (footnotes omitted).
14 The "clearly-erroneous" standard suggested by JUSTICE
STEVENS' opinion concurring in the judgment suffers from this
weakness and others as well. The term "clearly erroneous" derives
from Federal Rule of Civil Procedure 52(a), which provides that
"findings of fact [in actions tried without a jury] shall not be
set aside unless clearly erroneous." JUSTICE STEVENS wrenches the
term out of this context-where it applies to written factual
findings made by a trial judge-and would apply it to the imposition
of the death sentence by a jury or judge. Not only is the latter
determination different both quantitatively and qualitatively from
a finding of fact in a bench trial, but JUSTICE STEVENS would not
even bring with the term its established meaning in reviewing
factfindings in bench trials. We held in
United States v.
United States Gypsum Co., 333 U. S. 364, 395
(1948), and reaffirmed in
Anderson v.
Bessemer City,
470 U. S. 564,
573 (1985), that "'[a] finding is "clearly erroneous" when although
there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.''' But JUSTICE STEVENS would apparently
equate it with the standard traditionally used for review of jury
verdicts-that no reasonable sentencer could have imposed the death
penalty.
Post, at 371. Cf.
Jackson v.
Virginia, 443
U. S. 307,316-318 (1979).
347
The Court of Appeals standard therefore hones in on the
objective factors or conditions that must be shown to exist before
a defendant is eligible to have the death penalty imposed. The
Eleventh Circuit has adopted a similar "eligibility" test for
determining actual innocence.
Johnson v.
Singletary,
938 F.2d
1166 (1991), cert. pending, No. 91-6576.15 We agree with the
Courts of Appeals for the Fifth and Eleventh Circuits that the
"actual innocence" requirement must focus on those elements that
render a defendant eligible for the death penalty, and not on
additional mitigating evidence that was prevented from being
introduced as a result of a claimed constitutional error.
In the present petition, Sawyer advances two claims, arising
from two distinct groups of evidentiary facts that were not
considered by the jury that convicted and sentenced Sawyer. The
first group of evidence relates to petitioner's role in the offense
and consists of affidavits attacking the credibility of Cynthia
Shano and an affidavit claiming that one of Shano's sons told a
police officer that Sawyer was not responsible for pouring lighter
fluid on Arwood and lighting it, and that in fact Sawyer tried to
prevent Charles Lane from lighting Arwood on fire. Sawyer claims
that the police failed to produce this exculpatory evidence in
violation of his due process rights under
Brady v.
Maryland, 373
U. S. 83 (1963). The second group consists of medical records
from Sawyer's stays as a teenager in two different mental
health
15 The Eleventh Circuit articulated the following test:
"Thus, a petitioner may make a colorable showing that he is
actually innocent of the death penalty by presenting evidence that
an alleged constitutional error implicates
all of the
aggravating factors found to be present by the sentencing body.
That is, but for the alleged constitutional error, the sentencing
body
could not have found
any aggravating factors and
thus the petitioner was ineligible for the death penalty. In other
words, the petitioner must show that absent the alleged
constitutional error, the jury would have lacked the discretion to
impose the death penalty; that is, that he is
ineligible for
the death penalty."
Johnson v.
Singletary, 938 F. 2d,
at 1183 (emphasis in original).
348
institutions. Sawyer alleges ineffective assistance of counsel
in trial counsel's failure to introduce these records in the
sentencing phase of his trial.
The Court of Appeals held that petitioner's failure to assert
his
Brady claim in his first petition constituted an abuse
of the writ, and that he had not shown cause for failing to raise
the claim earlier under
McCleskey. 945 F. 2d, at 824. The
ineffective-assistance claim was held by the Court of Appeals to be
a successive claim because it was rejected on the merits in
Sawyer's first petition, and petitioner failed to show cause for
not bringing all the evidence in support of this claim earlier.
Id., at 823. Petitioner does not contest these findings of
the Court of Appeals. Tr. of Oral Arg. 7. Therefore, we must
determine if petitioner has shown by clear and convincing evidence
that but for constitutional error, no reasonable juror would find
him eligible for the death penalty under Louisiana law.
Under Louisiana law, petitioner is eligible for the death
penalty because he was convicted of first-degree murderthat is, an
intentional killing while in the process of committing an
aggravated arson-and because at the sentencing phase the jury found
two valid aggravating circumstances: that the murder was committed
in the course of an aggravated arson, and that the murder was
especially cruel, atrocious, and heinous. The psychological
evidence petitioner alleges was kept from the jury due to the
ineffective assistance of counsel does not relate to petitioner's
guilt or innocence of the crime.16 Neither does it relate to either
of the aggravating factors found by the jury that made petitioner
eligible for the death penalty. Even if this evidence had been
before the jury, it cannot be said that a reasonable juror would
not have found both of the aggravating factors that
16 Petitioner does not allege that his mental condition was such
that he could not form criminal intent under Louisiana law. Tr. of
Oral Arg. 10.
349
make petitioner eligible for the death penaltyP Therefore, as to
this evidence, petitioner has not shown that there would be a
fundamental miscarriage of justice for the Court to fail to
reexamine the merits of this successive claim.
We are convinced that the evidence allegedly kept from the jury
due to an alleged
Brady violation also fails to show that
the petitioner is actually innocent of the death penalty to which
he has been sentenced. Much of the evidence goes to the credibility
of Shano, suggesting,
e. g., that contrary to her
testimony at trial she knew Charles Lane prior to the day of the
murder; that she was drinking the day before the murder; and that
she testified under a grant of immunity from the prosecutor. 2 App.
589-608. This sort of latterday evidence brought forward to impeach
a prosecution witness will seldom, if ever, make a clear and
convincing showing that no reasonable juror would have believed the
heart of Shano's account of petitioner's actions.
The final bit of evidence petitioner alleges was
unconstitutionally kept from the jury due to a
Brady
violation was a statement made by Shano's then 4-year-old son,
Wayne, to a police officer the day after the murder. Petitioner has
submitted an affidavit from one Diane Thibodeaux stating that she
was present when Wayne told a police detective who asked who had
lit Arwood on fire that "Daddy [Sawyer] tried to help the lady" and
that the "other man" had pushed Sawyer back into a chair. 2 App.
587. The affidavit also states that Wayne showed the officer where
to find a cigarette lighter and a can of lighter fluid in the
trash.
Ibid. Because this evidence goes to the jury's
finding of aggravated arson, it goes both to petitioner's guilt or
innocence of the crime of first-degree murder and the aggravating
circumstance of a murder committed in the course of an aggravated
arson. However, we conclude that this affidavit, in view of
17 In the same category are the affidavits from petitioner's
family members attesting to the deprivation and abuse suffered by
petitioner as a child. 2 App. 571-584.
350
BLACKMUN, J., concurring in judgment
all the other evidence in the record, does not show that no
rational juror would find that petitioner committed both of the
aggravating circumstances found by the jury. The murder was
especially cruel, atrocious, and heinous based on the undisputed
evidence of torture before the jury quite apart from the arson
(e. g., beating, scalding with boiling water). As for the
finding of aggravated arson, we agree with the Court of Appeals
that, even crediting the information in the hearsay affidavit,18 it
cannot be said that no reasonable juror would have found, in light
of all the evidence, that petitioner was guilty of the aggravated
arson for his participation under the Louisiana law of
principals.19
We therefore hold that petitioner has failed to show by clear
and convincing evidence that but for constitutional error at his
sentencing hearing, no reasonable juror would have found him
eligible for the death penalty under Louisiana law. The judgment of
the Court of Appeals is therefore
Affirmed.
JUSTICE BLACKMUN, concurring in the judgment.
I cannot agree with the majority that a federal court is
absolutely barred from reviewing a capital defendant's abu-
18 Wayne Shano apparently has no clear memory of the crime
today.
Id., at 602-603. This fact, together with his tender
years at the time of the occurrence, suggests that Wayne himself
would not corroborate the affidavit of Diane Thibodeaux, thus
suggesting an independent basis for refusing to find that the
affidavit showed anything by clear and convincing evidence.
19 Louisiana Rev. Stat. Ann. § 14:24 (West 1986) defines
principals as: "All persons concerned in the commission of a crime
... and whether they directly commit the act constituting the
offense, aid and abet in its commission, or directly or indirectly
counselor procure another to commit the crime, are principals."
Even considering the affidavit of Wayne Shano, it cannot be said
that no reasonable juror would have found that petitioner committed
the aggravated arson, given Cynthia Shana's testimony as to
petitioner's statements to Lane on the day of the murder and
petitioner's fingerprints on the can of lighter fluid.
351
sive, successive, or procedurally defaulted claim unless the
defendant can 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 the applicable
state law."
Ante, at 336. For the reasons stated by JUSTICE
STEVENS in his separate opinion,
post, p. 360, which I join,
I believe that the Court today adopts an unduly cramped view of
"actual innocence." I write separately not to discuss the specifics
of the Court's standard, but instead to reemphasize my opposition
to an implicit premise underlying the Court's decision: that the
only "fundamental miscarriage of justice" in a capital proceeding
that warrants redress is one where the petitioner can make out a
claim of "actual innocence." I also write separately to express my
evergrowing skepticism that, with each new decision from this Court
constricting the ability of the federal courts to remedy
constitutional errors, the death penalty really can be imposed
fairly and in accordance with the requirements of the Eighth
Amendment.
I
The Court repeatedly has recognized that principles of
fundamental fairness underlie the writ of habeas corpus. See
Engle v.
Isaac, 456 U. S. 107, 126
(1982);
Sanders v.
United States, 373 U. S. 1, 17-18 (1963).
Even as the Court has erected unprecedented and unwarranted
barriers to the federal judiciary's review of the merits of claims
that state prisoners failed properly to present to the state
courts, or failed to raise in their first federal habeas petitions,
or previously presented to the federal courts for resolution, it
consistently has acknowledged that exceptions to these rules of
unreviewability must exist to prevent violations of fundamental
fairness. See
Engle, 456 U. S., at 135 (principles of
finality and comity "must yield to the imperative of correcting a
fundamentally unjust incarceration"). Thus, the Court has held,
federal courts may review procedurally defaulted, abusive, or
successive claims absent a showing of cause and
352
BLACKMUN, J., concurring in judgment
prejudice if the failure to do so would thwart the "ends of
justice," see
Kuhlmann v.
Wilson, 477 U. S. 436, 455 (1986)
(plurality opinion), or work a "fundamental miscarriage of
justice," see
Murray v.
Carrier, 477 U. S. 478, 495-496
(1986); Smith v.
Murray, 477 U. S. 527, 537-538
(1986);
Dugger v.
Adams, 489 U. S. 401, 412, n. 6
(1989);
McCleskey v.
Zant, 499 U. S. 467, 493-494
(1991).
By the traditional understanding of habeas corpus, a
"fundamental miscarriage of justice" occurs whenever a conviction
or sentence is secured in violation of a federal constitutional
right. See 28 U. S. C. § 2254(a) (federal courts "shall entertain"
habeas petitions from state prisoners who allege that they are "in
custody in violation of the Constitution or laws or treaties of the
United States");
Smith, 477 U. S., at 543-544 (STEVENS, J.,
dissenting). Justice Holmes explained that the concern of a federal
court in reviewing the validity of a conviction and death sentence
on a writ of habeas corpus is "solely the question whether [the
petitioner's] constitutional rights have been preserved."
Moore v.
Dempsey, 261 U. S. 86, 88
(1923).
In a trio of 1986 decisions, however, the Court ignored these
traditional teachings and, out of a purported concern for state
sovereignty, for the preservation of state resources, and for the
finality of state-court judgments, shifted the focus of federal
habeas review of procedurally defaulted, successive, or abusive
claims away from the preservation of constitutional rights to a
fact-based inquiry into the petitioner's innocence or guilt. See
Wilson, 477 U. S., at 454 (plurality opinion) ("[T]he 'ends
of justice' require federal courts to entertain [successive]
petitions only where the prisoner supplements his constitutional
claim with a colorable showing of factual innocence");
Carrier, 477 U. S., at 496 ("[I]n an extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court
may grant the writ even in the absence of a showing of cause for
the procedural default");
353
Smith, 477 U. S., at 537 (applying
Carrier
standard to constitutional error at sentencing phase of capital
trial). See also
McCleskey, 499 U. S., at 493 (applying
Carrier standard in "abuse of the writ" context).
The Court itself has acknowledged that "the concept of 'actual,'
as distinct from 'legal,' innocence does not translate easily into
the context of an alleged error at the sentencing phase of a trial
on a capital offense."
Smith, 477 U. S., at 537. Undaunted
by its own illogic, however, the Court adopted just such an
approach in
Smith. There, the Court was confronted with a
claim that the introduction at sentencing of inculpatory statements
made by Smith to a courtappointed psychiatrist violated the Fifth
Amendment because Smith had not been informed that his statements
might be used against him or that he had the right to remain silent
and to have counsel present. Although the Court assumed the
validity of Smith's Fifth Amendment claim 1 and recognized the
potential impact of the statement on the jury, which found the
aggravating circumstance of "future dangerousness" satisfied, see
id., at 538, it nonetheless concluded, remarkably and
summarily, that admission of the statement did not "pervert the
jury's deliberations concerning the ultimate question whether
in
fact petitioner constituted a continuing threat to society,"
ibid. (emphasis in original). Because Michael Smith could
not demonstrate cause for his procedural default, and because, in
the Court's view, he had not made a substantial showing that the
alleged constitutional violation "undermined the accuracy of the
guilt or sentencing determination,"
id., at 539, his Fifth
Amendment claim went unaddressed and he was executed on July 31,
1986.
IJUSTICE STEVENS explained in his dissenting opinion in
Smith, 477 U. S., at 551-553, that the introduction of the
inculpatory statement clearly violated Smith's rights as
established in
Estelle v.
Smith, 451 U. S. 454 (1981).
354
BLACKMUN, J., concurring in judgment
In
Dugger v.
Adams, the Court continued to equate
the notion of a "fundamental miscarriage of justice" in a capital
trial with the petitioner's ability to show that he or she
"probably is 'actually innocent' of the sentence he or she
received," 489 U. S., at 412, n. 6, but appeared to narrow the
inquiry even further. Adams' claim, that the trial judge repeatedly
had misinformed the jurors, in violation of the Eighth Amendment
and
Caldwell v.
Mississippi, 472 U. S. 320 (1985),
that their sentencing vote was strictly advisory in nature (when in
fact Florida law permitted the judge to overturn the jury's
sentencing decision only upon a clear and convincing showing that
its choice was erroneous), surely satisfied the standard
articulated in
Smith: whether petitioner can make out a
"substantial claim that the alleged error undermined the accuracy
of the guilt or sentencing determination." 477 U. S., at 539. In a
cryptic discussion relegated to a footnote at the end of its
opinion, the Court in
Adams rejected this obvious
application of the
Smith standard, apparently for no other
reason than its belief that Adams' ability to demonstrate a
"fundamental miscarriage of justice" in this case somehow would
convert an "extraordinary" exception into an "ordinary" one. See
489 U. S., at 412, n. 6. In rejecting the
Smith standard,
the Court did not even bother to substitute another in its place.
See 489 U. S., at 412, n. 6 ("We do not undertake here to define
what it means to be 'actually innocent' of a death sentence"). The
Court refused to address Aubrey Adams' claim of constitutional
error, and he was executed on May 4, 1989.
Just last Term, in
McCleskey v.
Zant, the Court
again described the "fundamental miscarriage of justice" exception
as a "'safeguard against compelling an innocent man to suffer an
unconstitutional loss of liberty,'" 499 U. S., at 495 (quoting
Stone v.
Powell, 428 U. S. 465, 491-492,
n. 31 (1976)). Although the District Court granted relief to
McCleskey on his claim that state authorities deliberately had
elicited inculpatory admissions from him in violation of his
Sixth
355
Amendment right to counsel, see
Massiah v.
United
States, 377 U. S.
201 (1964), and excused his failure to present the claim in his
first federal habeas petition because the State had withheld
documents and information establishing that claim, see 499 U. S.,
at 475-476, the Court concluded that McCleskey lacked cause for
failing to raise the claim earlier,
id., at 502. More
important for our purposes, the Court concluded that the "narrow
exception" by which federal courts may "exercise [their] equitable
discretion to correct a miscarriage of justice" was of "no avail"
to McCleskey: The
"Massiah violation, if it be one, resulted
in the admission at trial of truthful inculpatory evidence which
did not affect the reliability of the guilt determination."
Ibid. The Court refused to address Warren McCleskey's claim
of constitutional error, and he was executed on September 24,
1991.
The Court today takes for granted that the foregoing decisions
correctly limited the concept of a "fundamental miscarriage of
justice" to "actual innocence," even as it struggles, by ignoring
the "natural usage of those words" and resorting to "analog[s],"
see
ante, at 341, to make sense of "actual innocence" in the
capital context. I continue to believe, however, that the Court's
"exaltation of accuracy as the only characteristic of 'fundamental
fairness' is deeply flawed."
Smith, 477 U. S., at 545
(STEVENS, J., dissenting).
As an initial matter, the Court's focus on factual innocence is
inconsistent with Congress' grant of habeas corpus jurisdiction,
pursuant to which federal courts are instructed to entertain
petitions from state prisoners who allege that they are held "in
custody in violation of the Constitution or laws or treaties of the
United States." 28 U. S. C. §2254(a). The jurisdictional grant
contains no support for the Court's decision to narrow the
reviewing authority and obligation of the federal courts to claims
of factual innocence. See also 28 U. S. C. § 2243 ("The court shall
... dispose of the matter as law and justice require"). In
addition, the actual innocence standard requires a reviewing
federal court, unnaturally, to
356
BLACKMUN, J., concurring in judgment
"function in much the same capacity as the state trier of fact";
that is, to "make a rough decision on the question of guilt or
innocence."
Wilson, 477 U. S., at 471, n. 7 (Brennan, J.,
dissenting).
Most important, however, the focus on innocence assumes,
erroneously, that the only value worth protecting through federal
habeas review is the accuracy and reliability of the guilt
determination. But "[o]ur criminal justice system, and our
Constitution, protect other values in addition to the reliability
of the guilt or innocence determination, and the statutory duty to
serve 'law and justice' should similarly reflect those values."
Smith, 477 U. S., at 545 (STEVENS, J., dissenting). The
accusatorial system of justice adopted by the Founders affords a
defendant certain process-based protections that do not have
accuracy of truth finding as their primary goal. These
protections-including the Fifth Amendment right against compelled
self-incrimination, the Eighth Amendment right against the
imposition of an arbitrary and capricious sentence, the Fourteenth
Amendment right to be tried by an impartial judge, and the
Fourteenth Amendment right not to be indicted by a grand jury or
tried by a petit jury from which members of the defendant's race
have been systematically excluded-are debased, and indeed, rendered
largely irrelevant, in a system that values the accuracy of the
guilt determination above individual rights.
Nowhere is this single-minded focus on actual innocence more
misguided than in a case where a defendant alleges a constitutional
error in the sentencing phase of a capital trial. The Court's
ongoing struggle to give meaning to "innocence of death" simply
reflects the inappropriateness of the inquiry. See
Smith,
477 U. S., at 537;
Adams, 489 U. S., at 412, n. 6;
ante, at 340. "Guilt or innocence is irrelevant in that
context; rather, there is only a decision made by representatives
of the community whether the prisoner shall live or die."
Wilson, 477 U. S., at 471-472, n. 7 (Brennan, J.,
dissenting).
357
See also Patchel, The New Habeas, 42 Hastings L. J. 941, 972
(1991).
Only by returning to the federal courts' central and traditional
function on habeas review, evaluating claims of constitutional
error, can the Court ensure that the ends of justice are served and
that fundamental miscarriages of justice do not go unremedied. The
Court would do well to heed Justice Black's admonition: "[I]t is
never too late for courts in habeas corpus proceedings to look
straight through procedural screens in order to prevent forfeiture
of life or liberty in flagrant defiance of the Constitution."
Brown v.
Allen, 344 U. S. 443, 554 (1953)
(dissenting opinion).2
II A
When I was on the United States Court of Appeals for the Eighth
Circuit, I once observed, in the course of reviewing a death
sentence on a writ of habeas corpus, that the decisional process in
a capital case is "particularly excruciating" for someone "who is
not personally convinced of the rightness of capital punishment and
who questions it as an effective deterrent."
Maxwell v.
Bishop, 398 F.2d
138, 153-154 (1968), vacated,
398 U. S. 262 (1970). At
the same time, however, I stated my then belief that "the
advisability of capital punishment is a policy matter ordinarily to
be resolved by the legislature."
Id., at 154. Four years
later, as a Member of this Court, I echoed those sentiments in my
separate dissenting opinion in
Furman v.
Georgia,
408 U. S. 238,
405 (1972). Although I reiterated my personal distaste for the
2 Notwithstanding my view that the Court has erred in narrowing
the concept of a "fundamental miscarriage of justice" to cases of
"actual innocence," I have attempted faithfully to apply the
"actual innocence" standard in prior cases. See,
e. g.,
Dugger v.
Adams, 489 U. S. 401, 424, n. 15
(1989) (dissenting opinion). I therefore join JUSTICE STEVENS'
analysis of the "actual innocence" standard and his application of
that standard to the facts of this case. See
post, p.
360.
358
BLACKMUN, J., concurring in judgment
death penalty and my doubt that it performs any meaningful
deterrent function, see
id., at 405-406, I declined to join
my Brethren in declaring the state statutes at issue in those cases
unconstitutional. See
id., at 411 ("We should not allow our
personal preferences as to the wisdom of legislative and
congressional action, or our distaste for such action, to guide our
judicial decision").
My ability in
Maxwell, Furman, and the many other capital
cases I have reviewed during my tenure on the federal bench to
enforce, notwithstanding my own deep moral reservations, a
legislature's considered judgment that capital punishment is an
appropriate sanction, has always rested on an understanding that
certain procedural safeguards, chief among them the Federal
Judiciary's power to reach and correct claims of constitutional
error on federal habeas review, would ensure that death sentences
are fairly imposed. Today, more than 20 years later, I wonder what
is left of that premise underlying my acceptance of the death
penalty.
B
Only last Term I had occasion to lament the Court's continuing
"crusade to erect petty procedural barriers in the path of any
state prisoner seeking review of his federal constitutional claims"
and its transformation of "the duty to protect federal rights into
a self-fashioned abdication."
Coleman v.
Thompson,
501 U. S. 722,
759, 761 (1991) (dissenting opinion). This Term has witnessed the
continued narrowing of the avenues of relief available to federal
habeas petitioners seeking redress of their constitutional claims.
See,
e. g., Keeney v.
Tamayo-Reyes, 504 U. S. 1 (1992)
(overruling in part
Townsend v.
Sain, 372 U. S. 293 (1963)). It
has witnessed, as well, the execution of two victims of the "new
habeas," Warren McCleskey and Roger Keith Coleman.
Warren McCleskey's case seemed the archetypal "fundamental
miscarriage of justice" that the federal courts are charged with
remedying. As noted above, McCleskey dem-
359
onstrated that state officials deliberately had elicited
inculpatory admissions from him in violation of his Sixth Amendment
rights and had withheld information he needed to present his claim
for relief. In addition, McCleskey argued convincingly in his final
hours that he could not even obtain an impartial clemency hearing
because of threats by state officials against the pardons and
parole board. That the Court permitted McCleskey to be executed
without ever hearing the merits of his claims starkly reveals the
Court's skewed value system, in which finality of judgments,
conservation of state resources, and expediency of executions seem
to receive greater solicitude than justice and human life. See
McCleskey v.
Bowers, 501 U. S. 1281 (1991) (Marshall,
J., dissenting from denial of stay of execution).
The execution of Roger Keith Coleman is no less an affront to
principles of fundamental fairness. Last Term, the Court refused to
review the merits of Coleman's claims by effectively overruling, at
Coleman's expense, precedents holding that state-court decisions
are presumed to be based on the merits (and therefore, are subject
to federal habeas review) unless they explicitly reveal that they
were based on state procedural grounds. See
Coleman, 501 U.
S., at 762-764 (dissenting opinion). Moreover, the Court's refusal
last month to grant a temporary stay of execution so that the lower
courts could conduct a hearing into Coleman's wellsupported claim
that he was innocent of the underlying offense demonstrates the
resounding hollowness of the Court's professed commitment to employ
the "fundamental miscarriage of justice exception" as a "safeguard
against compelling an innocent man to suffer an unconstitutional
loss of liberty."
McCleskey v.
Zant, 499 U. S., at
495 (internal quotation marks omitted). See
Coleman v.
Thompson, 504
U. S. 188, 189 (1992) (opinion dissenting from denial of stay
of execution).
As I review the state of this Court's capital jurisprudence, I
thus am left to wonder how the ever-shrinking authority of
360
STEVENS, J., concurring in judgment
the federal courts to reach and redress constitutional errors
affects the legitimacy of the death penalty itself. Since
Gregg v.
Georgia, the Court has upheld the
constitutionality of the death penalty where sufficient procedural
safeguards exist to ensure that the State's administration of the
penalty is neither arbitrary nor capricious. See
428 U. S. 153, 189, 195
(1976) (joint opinion);
Lockett v.
Ohio, 438 U. S. 586, 601
(1978). At the time those decisions issued, federal courts
possessed much broader authority than they do today to address
claims of constitutional error on habeas review and, therefore, to
examine the adequacy of a State's capital scheme and the fairness
and reliability of its decision to impose the death penalty in a
particular case. The more the Court constrains the federal courts'
power to reach the constitutional claims of those sentenced to
death, the more the Court undermines the very legitimacy of capital
punishment itself.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR
join, concurring in the judgment.
Only 10 years ago, the Court reemphasized that "[t]he writ of
habeas corpus indisputably holds an honored position in our
jurisprudence. Tracing its roots deep into English common law, it
claims a place in Art. I of our Constitution. Today, as in prior
centuries, the writ is a bulwark against convictions that violate
'fundamental fairness.'
Wainwright v.
Sykes, 433 U.
S. [72,] 97 [(1977)] (STEVENS, J., concurring)."
Engle v.
Isaac, 456 U.
S. 107, 126 (1982). It is this centrality of "fundamental
fairness" that has led the Court to hold that habeas review of a
defaulted, successive, or abusive claim is available, even absent a
showing of cause, if failure to consider the claim would result in
a fundamental miscarriage of justice. See
Sanders v.
United States, 373 U. S. 1, 17-18
(1963); Engle, 456 U. S., at 135.
In
Murray v.
Carrier, 477 U. S. 478, 495, 496
(1986), the Court ruled that the concept of "fundamental
miscarriage of justice" applies to those cases in which the
defendant was
361
"probably ... actually innocent." The Court held that "in an
extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a
showing of cause for the procedural default."
Id., at 496.
Having equated the "ends of justice" with "actual innocence," the
Court is now confronted with the task of giving meaning to "actual
innocence" in the context of a capital sentencing proceeding-hence
the phrase "innocence of death."
While the conviction of an innocent person may be the archetypal
case of a manifest miscarriage of justice, it is not the only case.
There is no reason why "actual innocence" must be both an animating
and the limiting principle of the work of federal courts in
furthering the "ends of justice." As Judge Friendly emphasized,
there are contexts in which, irrespective of guilt or innocence,
constitutional errors violate fundamental fairness. Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38
U. Chi. L. Rev. 142, 151-154 (1970). Fundamental fairness is more
than accuracy at trial; justice is more than guilt or
innocence.
Nowhere is this more true than in capital sentencing
proceedings. Because the death penalty is qualitatively and morally
different from any other penalty, "[i]t is of vital importance to
the defendant and to the community that any decision to impose the
death sentence be, and appear to be, the consequence of
scrupulously fair procedures."
Smith v.
Murray,
477 U. S. 527,
545-546 (1986) (STEVENS, J., dissenting). Accordingly, the ends of
justice dictate that "[w]hen a condemned prisoner raises a
substantial, colorable Eighth Amendment violation, there is a
special obligation ... to consider whether the prisoner's claim
would render his sentencing proceeding fundamentally unfair."
Id., at 546.
Thus the Court's first and most basic error today is that it
asks the wrong question. Charged with averting manifest
miscarriages of justice, the Court instead narrowly recasts
362
STEVENS, J., concurring in judgment
its duty as redressing cases of "actual innocence." This error
aside, under a proper interpretation of the
Carrier
analysis, the Court's definition of "innocence of death" is plainly
wrong because it disregards well-settled law-both the law of habeas
corpus and the law of capital punishment.
I
The Court today holds that, absent a showing of cause, a federal
court may not review a capital defendant's defaulted, successive,
or abusive claims unless the defendant
"show[s] by clear and convincing evidence that, but for a
constitutional error, no reasonable juror would have found [him]
eligible for the death penalty." Ante, at 336.
This definition of "innocence of the death sentence" deviates
from our established jurisprudence in two ways. First, the "clear
and convincing evidence" standard departs from a line of decisions
defining the "actual innocence" exception to the
cause-and-prejudice requirement. Second, and more fundamentally,
the Court's focus on
eligibility for the death penalty
conflicts with the very structure of the constitutional law of
capital punishment.
As noted above, in
Murray v.
Carrier, the Court
held that in those cases in which "a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default." 477 U.
S., at 496 (emphasis added). The Court has since frequently
confirmed this standard. See,
e. g., Coleman v.
Thompson, 501
U. S. 722, 748 (1991);
Dugger v.
Adams, 489 U. S.
401, 412, n. 6 (1989);
Teague v.
Lane, 489 U. S. 288, 313
(1989). In subsequent decisions, both those involving "innocence of
the offense" and those involving "innocence of the death sentence,"
the Court has employed the same standard of proof. For example, in
Smith v.
Murray, 477 U. S. 527
363
(1986), the Court repeated the
Carrier standard and
applied it in a capital sentencing proceeding. The Court ruled that
Smith's claim did not present "the risk of a manifest miscarriage
of justice" as it was "devoid of any substantial claim that the
alleged error undermined the accuracy of the guilt or sentencing
determination." 477 U. S., at 538-539. Similarly, in
Dugger
v.
Adams, a case involving "innocence of the death
sentence," the Court stated the controlling standard as whether an
"individual defendant
probably is 'actually innocent' of the
sentence he or she received." 489 U. S., at 412, n. 6 (emphasis
added). In sum, in construing both "innocence of the offense" and
"innocence of the death sentence," we have consistently required a
defendant to show that the alleged constitutional error has
more
likely than not created a fundamental miscarriage of
justice.
As we noted in another context, "[t]his outcomedeterminative
standard has several strengths. It defines the relevant inquiry in
a way familiar to courts, though the inquiry, as is inevitable, is
anything but precise. The standard also reflects the profound
importance of finality in criminal proceedings. Moreover, it
comports with the widely used standard for assessing motions for
new trial based on newly discovered evidence."
Strickland v.
Washington, 466 U. S. 668, 693-694 (1984).
Equally significant, this "probably resulted" standard is well
calibrated to the manifest miscarriage of justice exception. Not
only does the standard respect the competing demands of finality
and fundamental fairness, it also fits squarely within our habeas
jurisprudence. In general, a federal court may entertain a
defaulted, successive, or abusive claim if a prisoner demonstrates
cause and prejudice. See generally
McCleskey v.
Zant,
499 U. S. 467,
493-495 (1991). To show "prejudice," a defendant must demonstrate
"a reasonable probability that, but for [the alleged] erro[r], the
result of the proceeding would have been different."
Strickland, 466 U. S., at 694; see also
United States
v.
Bag-
364
STEVENS, J., concurring in judgment
ley, 473 U.
S. 667, 682, 685 (1985). The "miscarriage of justice" exception
to this general rule requires a more substantial showing: The
defendant must not simply demonstrate a
reasonable
probability of a different result, he must show that the
alleged error
more likely than not created a manifest
miscarriage of justice. This regime makes logical sense. If a
defendant cannot show cause and can only show a "reasonable
probability" of a different outcome, a federal court should not
hear his defaulted, successive, or abusive claim. Only in the
"exceptional case" in which a defendant can show that the alleged
constitutional error "probably resulted" in the conviction (or
sentencing) of one innocent of the offense (or the death sentence)
should the court hear the defendant's claim.
The Court today repudiates this established standard of proof
and replaces it with a requirement that a defendant "show by
clear and convincing evidence that ... no reasonable juror
would have found [him] eligible for the death penalty."
Ante, at 336 (emphasis supplied). I see no reason to reject
the established and well-functioning "probably resulted" standard
and impose such a severe burden on the capital defendant. Although
we have frequently recognized the State's strong interest in
finality, we have never suggested that that interest is sufficient
to outweigh the individual's claim to innocence. To the contrary,
the "actual innocence" exception itself manifests our recognition
that the criminal justice system occasionally errs and that, when
it does, finality must yield to justice.
"The function of a standard of proof ... is to 'instruct the
factfinder concerning the degree of confidence our society thinks
he should have in the correctness of factual conclusions for a
particular type of adjudication.' ... The standard serves to
allocate the risk of error between the litigants and to indicate
the relative importance attached to the ultimate decision."
Addington v.
Texas, 441 U. S. 418, 423 (1979)
(citation omitted). Neither of these considerations
365
supports the heightened standard of proof the Court imposes
today.
First, there is no basis for requiring a federal court to be
virtually certain that the defendant is actually ineligible for the
death penalty before
merely entertaining his claim. We have
required a showing by clear and convincing evidence in several
contexts: For example, the medical facts underlying a civil
commitment must be established by this standard,
Addington
v.
Texas, 441
U. S. 418 (1979), as must "actual malice" in a libel suit
brought by a public official.
New York Times Co. v.
Sullivan, 376
U. S. 254, 279-280 (1964); see also
Anderson v.
Liberty Lobby, Inc., 477 U. S. 242 (1986). And
we have required a related showing in cases involving deportation,
Woodby v.
INS, 385 U. S. 276, 285-286
(1966), and denaturalization,
Schneiderman v.
United
States, 320 U. S.
118, 125 (1943). In each of these contexts, the interests of
the nonmoving party were truly substantial: personal liberty in
Addington, freedom of expression in
New York Times,
residence in
Woodby, and citizenship in
Schneiderman.
In my opinion, the State's interest in finality in a capital
prosecution is not nearly as great as any of these interests.
Indeed, it is important to remember that "innocence of the death
sentence" is not a standard for staying or vacating a death
sentence, but merely a standard for determining whether or not a
court should reach the merits of a defaulted claim. The State's
interest in "finality" in this context certainly does not warrant a
"clear and convincing" evidentiary standard.
Nor is there any justification for allocating the risk of error
to fall so severely upon the capital defendant or attaching greater
importance to the initial sentence than to the issue of whether
that sentence is appropriate. The States themselves have declined
to attach such weight to capital sentences: Most States provide
plain-error review for defaulted claims in capital cases. See
Smith v.
Murray, 477 U. S., at 548-550, n. 20
(collecting authorities). In this regard, the
366
STEVENS, J., concurring in judgment
Court's requirement that "innocence of death" must be
demonstrated by "clear and convincing evidence" fails to respect
the uniqueness of death penalty decisions: Nowhere is the need for
accuracy greater than when the State exercises its ultimate
authority and takes the life of one of its citizens.
Indeed, the Court's ruling creates a perverse double standard.
While a defendant raising defaulted claims in a noncapital case
must show that constitutional error "probably resulted" in a
miscarriage of justice, a capital defendant must present "clear and
convincing evidence" that no reasonable juror would find him
eligible for the death penalty. It is heartlessly perverse to
impose a more stringent standard of proof to avoid a miscarriage of
justice in a capital case than in a noncapital case.
In sum, I see no reason to depart from settled law, which
clearly requires a defendant pressing a defaulted, successive, or
abusive claim to show that a failure to hear his claim will
"probably result" in a fundamental miscarriage of justice. In my
opinion, a corresponding standard governs a defaulted, successive,
or abusive challenge to a capital sentence: The defendant must show
that he is probably-that is, more likely than not-"innocent of the
death sentence."
II
The Court recognizes that the proper definition of "innocence of
the death sentence" must involve a reweighing of the evidence and
must focus on the sentencer's likely evaluation of that evidence.
Thus, the Court directs federal courts to look to whether a
"reasonable juror
would have found the petitioner eligible
for the death penalty."
Ante, at 336 (emphasis added).
Nevertheless, the Court inexplicably limits this inquiry in two
ways. First, the Court holds that courts should consider
only evidence concerning aggravating factors. As
demonstrated below, this limitation is wholly without foundation
and neglects the central role of mitigating evidence in capital
sentencing proceedings. Second, the
367
Court requires a petitioner to refute his
eligibility for
the death penalty. This narrow definition of "innocence of the
death sentence" fails to recognize that, in rare cases, even though
a defendant is eligible for the death penalty, such a sentence may
nonetheless constitute a fundamental miscarriage of justice.
It is well established that, "in capital cases, the sentencer
may not refuse to consider or be precluded from considering any
relevant mitigating evidence."
Hitchcock v.
Dugger,
481 U. S. 393,
394 (1987) (internal quotation marks and citations omitted). Yet in
ascribing a narrow, eligibility-based meaning to "innocence of the
death sentence" the Court neglects this rudimentary principle.
As the Court recognizes, a single general directive animates and
informs our capital-punishment jurisprudence: "[T]he death penalty
[may not] be imposed under sentencing procedures that creat[e] a
substantial risk that [the death penalty] would be inflicted in an
arbitrary and capricious manner."
Gregg v.
Georgia,
428 U. S. 153,
188 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). As
applied and developed over the years, this constitutional
requirement has yielded two central principles. First, a sentencing
scheme must "genuinely narrow the class of persons eligible for the
death penalty."
Zant v.
Stephens, 462 U. S. 862, 877
(1983). Second, the sentencer must "not be precluded from
considering,
as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death."
Lockett v.
Ohio, 438 U. S. 586, 604 (1978)
(opinion of Burger, C. J.) (emphasis in original). Although these
principles-one narrowing the relevant class, the other broadening
the scope of considered evidence-seemingly point in opposite
directions, in fact both serve the same end: ensuring that a
capital sentence is the product of individualized and reasoned
moral decisionmaking.
368
STEVENS, J., concurring in judgment
Against this backdrop of well-settled law, the Court's ruling is
a startling anomaly. The Court holds that "innocence of the death
sentence" concerns only "those elements that render a defendant
eligible for the death penalty, and
not ... additional
mitigating evidence that [constitutional error precluded] from
being introduced."
Ante, at 347 (emphasis added). Stated
bluntly, the Court today respects only one of the two bedrock
principles of capital-punishment jurisprudence. As such, the
Court's impoverished vision of capital sentencing is at odds with
both the doctrine and the theory developed in our many decisions
concerning capital punishment.
First, the Court implicitly repudiates the requirement that the
sentencer be allowed to consider all relevant mitigating evidence,
a constitutive element of our Eighth Amendment jurisprudence. We
have reiterated and applied this principle in more than a dozen
cases over the last 14 years. For example, in
Eddings v.
Oklahoma, 455
U. S. 104 (1982), we overturned a capital sentence because the
sentencer refused to consider certain mitigating evidence.
Similarly, in
Skipper v.
South Carolina, 476 U. S. 1 (1986), we
ruled that a State cannot preclude consideration of evidence of
postincarceration, pretrial good behavior. And in
Penry v.
Lynaugh, 492
U. S. 302 (1989), we held that Texas' death penalty scheme
impermissibly restricted the jury's consideration of the
defendant's mental retardation as mitigating evidence.1
Moreover, the Court's holding also clashes with the
theory underlying our capital-punishment jurisprudence. The
nonarbitrariness-and therefore the constitutionality-of the death
penalty rests on
individualized sentencing determinations.
See generally
California v.
Brown, 479 U. S. 538, 544-546
(1987) (O'CONNOR, J., concurring). This is the dif-
1 See also
Boyde v.
California, 494 U. S. 370 (1990);
McKoy v.
North Carolina, 494 U. S. 433 (1990);
Franklin v.
Lynaugh, 487 U. S. 164 (1988);
Mills v.
Maryland, 486 U. S. 367 (1988);
Hitchcock v.
Dugger, 481 U. S. 393 (1987);
Bell v.
Ohio, 438 U. S. 637 (1978).
369
ference between the guided-discretion regime upheld in
Gregg v.
Georgia and the mandatory death-sentence
regime invalidated in
Roberts v.
Louisiana, 428 U. S. 325 (1976). The
Roberts scheme was constitutionally infirm because it left
no room for individualized moral judgments, because it failed to
provide the sentencer with a "meaningful opportunity [to] conside[r
the] mitigating factors presented by the circumstances of the
particular crime or by the attributes of the individual offender."
Id., at 333-334 (opinion of Stewart, Powell, and STEVENS,
JJ.). The Court's definition of "innocence of the death sentence"
is like the statutory scheme in
Roberts: It focuses solely
on whether the defendant is in a class eligible for the death
penalty and disregards the equally important question whether"
'death is the appropriate punishment in [the defendant's] specific
case.'''
Zant v.
Stephens, 462 U. S., at 885 (quoting
Woodson v.
North Carolina, 428 U. S. 280, 305
(1976)).2
The Court's definition of "innocent of the death sentence" is
flawed in a second, related way. The Court's analysis not only
neglects errors that preclude a sentencer's consideration of
mitigating factors; it also focuses too narrowly on
eligibility. The Court requires a defendant to call into
question
all of the aggravating factors found by the
sentencer and thereby show himself ineligible for the death
penalty.
2 The Court rejects the argument that federal courts should also
consider
mitigating evidence because consideration of such
evidence involves the "far more difficult task [of] assess[ing] how
jurors would have reacted to additional showings."
Ante, at
346. I see no such difference between consideration of aggravating
and mitigating circumstances; both require the federal courts to
reconsider and anticipate a sentencer's decision: By the Court's
own standard federal courts must determine whether a "reasonable
juror would have found" certain facts. Thus, the Court's reason for
barring federal courts from considering mitigating circumstances
applies equally to the standard that
it endorses. Its
exclusion of mitigating evidence from consideration is therefore
wholly arbitrary.
370
STEVENS, J., concurring in judgment
Contrary to the Court's suggestion, however, there may be cases
in which, although the defendant remains eligible for the death
penalty, imposition of a death sentence would constitute a manifest
miscarriage of justice. If, for example, the sentencer, in
assigning a sentence of death, relied heavily on a finding that the
defendant severely tortured the victim, but later it is discovered
that another person was responsible for the torture, the
elimination of the aggravating circumstance will, in some cases,
indicate that the death sentence was a miscarriage of justice. By
imposing an "all-ornothing" eligibility test, the Court's
definition of "innocent of the death sentence" fails to acknowledge
this important possibility.
In sum, the Court's "innocent of the death sentence" standard is
flawed both in its failure to consider constitutional errors
implicating mitigating factors and in its unduly harsh requirement
that a defendant's eligibility for the death penalty be
disproved.
III
In my opinion, the "innocence of the death sentence" standard
must take into account several factors. First, such a standard must
reflect
both of the basic principles of our
capital-punishment jurisprudence. The standard must recognize both
the need to define narrowly the class of "deatheligible" defendants
and the need to define broadly the scope of mitigating evidence
permitted the capital sentencer. Second, the "innocence of the
death sentence" standard should also recognize the distinctive
character of the capital sentencing decision. While the question of
innocence or guilt of the offense is essentially a question of
fact, the choice between life imprisonment and capital punishment
is both a question of underlying fact and a matter of reasoned
moral judgment. Thus, there may be some situations in which,
although the defendant remains technically "eligible" for the death
sentence, nonetheless, in light of all of the evidence,
371
that sentence constitutes a manifest miscarriage of justice.
Finally, the "innocence of the death sentence" standard must also
respect the "profound importance of finality in criminal
proceedings,"
Strickland v.
Washington, 466 U. S., at
693694, and the "heavy burden" that successive habeas petitions
place "on scarce federal judicial resources."
McCleskey v.
Zant, 499 U. S., at 491.
These requirements are best met by a standard that provides that
a defendant is "innocent of the death sentence" only if his capital
sentence is
clearly erroneous. This standard encompasses
several types of error. A death sentence is clearly erroneous if,
taking into account all of the available evidence, the sentencer
lacked the legal authority to impose such a sentence because, under
state law, the defendant was not eligible for the death penalty.
Similarly, in the case of a "jury override," a death sentence is
clearly erroneous if, taking into account all of the evidence, the
evidentiary prerequisites for that override (as established by
state law) were not met. See,
e. g., Johnson v.
Singletary, 938 F.2d
1166,1194-1195 (CA111991) (Tjofiat, C. J., concurring in part
and dissenting in part) (concluding that the sentencing "judge, as
a matter of law, could not have sentenced the petitioner to death"
because there was insufficient evidence to meet the jury-override
standard established in
Tedder v.
State, 322 So. 2d
908, 910 (Fla. 1975)). A death sentence is also clearly erroneous
under a "balancing" regime if, in view of all of the evidence,
mitigating circumstances so far outweighed aggravating
circumstances that no reasonable sentencer would have imposed the
death penalty. Cf.
Jackson v.
Virginia, 443 U. S. 307, 316-318
(1979). Such a case might arise if constitutional error either
precluded the defendant from demonstrating that aggravating
circumstances did not obtain or precluded the sentencer's
consideration of important mitigating evidence.
372
STEVENS, J., concurring in judgment
Unlike the standard suggested by the Court, this standard
acknowledges both the "aggravation" and "mitigation" aspects of
capital-punishment law. It recognizes that, in the extraordinary
case, constitutional error may have precluded consideration of
mitigating circumstances so substantial as to warrant a court's
review of a defaulted, successive, or abusive claim. It also
recognizes that, again in the extraordinary case, constitutional
error may have inaccurately demonstrated aggravating circumstances
so substantial as to warrant review of a defendant's claims.
Moreover, the "clearly-erroneous" standard is duly protective of
the State's legitimate interests in finality and respectful of the
systemic and institutional costs of successive habeas litigation.
The standard is stringent: If the sentence "is plausible in light
of the record viewed in its entirety" it is not clearly erroneous
"even though [the court is] convinced that had it been sitting as
the [sentencer], it would have weighed the evidence differently."
Anderson v.
Bessemer City, 470 U. S. 564, 574
(1985). At the same time, "clearlyerroneous" review allows a
federal court to entertain a defaulted claim in the rare case in
which the "court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed."
United
States v.
United States Gypsum Co., 333 U. S. 364, 395
(1948).
Finally, the "clearly-erroneous" standard is workable. As was
true of the cause-and-prejudice standard adopted in
McCleskey v.
Zant, the clear-error standard is
"[w]ell-defined in the case law [and] familiar to federal courts
.... The standard is an objective one, and can be applied in a
manner that comports with the threshold nature of the abuse of the
writ inquiry." 499 U. S., at 496. Federal courts have long applied
the "clearly-erroneous" standard pursuant to Rule 52 of the Federal
Rules of Civil Procedure and have done so "in civil contempt
actions, condemnation proceedings, copyright appeals, [and]
forfeiture actions for illegal activity." 1 S. Childress & M.
Davis, Standards of Review § 2.3, pp. 29-30
373
(1986) (citing cases).3 This workability supports the
application of the "clearly-erroneous" standard to the "innocence
of the death sentence" inquiry.
In my opinion, then, the "clearly-erroneous" standard is the
core of the "innocence of the death sentence" exception. Just as a
defendant who presses a defaulted, successive, or abusive claim and
who cannot show cause must demonstrate that it is more likely than
not that he is actually innocent of the offense, so a capital
defendant who presses such a claim and cannot show cause must
demonstrate that it is more likely than not that his death sentence
was clearly erroneous. Absent such a showing, a federal court may
not reach the merits of the defendant's defaulted, successive, or
abusive claim.
IV
It remains to apply this standard to the case at hand. As the
majority indicates, Sawyer alleges two constitutional errors.
First, he contends that the State withheld certain exculpatory
evidence, in violation of Sawyer's due process rights as recognized
in
Brady v.
Maryland, 373 U. S. 83 (1963).
Second, Sawyer argues that his trial counsel's failure to uncover
and present records from Sawyer's earlier treatments in psychiatric
institutions deprived him of effective assistance of counsel as
guaranteed by the Sixth Amendment.
As Sawyer failed to assert his
Brady claim in an earlier
habeas petition and as he cannot show cause for that failure, the
court may only reach the merits of that "abusive" claim if Sawyer
demonstrates that he is probably actually innocent of the offense
or that it is more likely than not that his death sentence was
clearly erroneous. As Sawyer's ineffectiveassistance claim was
considered and rejected in an earlier
3 Courts have also reviewed nonguilt findings of fact made in
criminal cases pursuant to Rule 23(c) of the Federal Rules of
Criminal Procedure under this standard. See 2 S. Childress & M.
Davis, Standards of Review § 10.3, pp. 73-76 (1986) (citing
cases).
374
STEVENS, J., concurring in judgment
habeas proceeding, the court may only review that "successive"
claim upon a similar showing. Upon a review of the record in its
entirety, I conclude that Sawyer has failed to make such a
showing.
Sawyer points to two pieces of exculpatory evidence allegedly
withheld by the State. First, he offers the affidavit of a woman
(Diane Thibodeaux) who, on occasion, took care of the small child
who witnessed the crime. That account appears to conflict with
contemporaneous police reports. While police records indicate that
the child implicated Sawyer in the cruel burning of the victim,
Thibodeaux avers that the child stated to her that Sawyer's
codefendant, Charles Lane, set the victim afire. Second, he offers
other affidavits casting doubt on the credibility of Cindy Shano,
the State's principal witness. Sawyer emphasizes that Shano
testified under a grant of immunity and highlights inaccuracies in
her trial testimony. Finally, as part of his Sixth Amendment claim,
Sawyer also offers medical records documenting brain damage and
retarded mental development.
Viewed as a whole, the record does not demonstrate that failure
to reach the merits of Sawyer's claims would constitute a
fundamental miscarriage of justice. First, in view of the other
evidence in the record, the Thibodeaux affidavit and questions
concerning Shano's testimony do not establish that Sawyer is
"probably ... actually innocent" of the crime of first-degree
murder. At most, Thibodeaux's hearsay statements cast slight doubt
on the facts underlying the burning of the victim. Similarly,
although the challenges to Shano's testimony raise questions, these
affidavits do not demonstrate that Sawyer probably did not commit
firstdegree murder. Thus, Sawyer has not met the standard "actual
innocence" exception.
Second, the affidavits and the new medical records do not
convince me that Sawyer's death sentence is clearly erroneous. The
jury found two statutory aggravating factorsthat the murder was
committed in the course of an aggra-
375
vated arson, and that the murder was especially heinous,
atrocious, and cruel.
State v.
Sawyer, 422 So. 2d
95,100 (La. 1982). As suggested above, the Thibodeaux affidavit
does not show that it is "more likely than not" that Sawyer did not
commit aggravated arson. Moreover, Sawyer offers no evidence to
undermine the jury's finding that the murder was especially
heinous, atrocious, and cruel. In addition, assuming that the new
medical evidence would support a finding of a statutory mitigating
factor (diminished capacity due to mental disease or defect),4 I
cannot say that it would be clear error for a sentencer faced with
the two unrefuted aggravating circumstances and that single
mitigating circumstance to sentence Sawyer to death.
In sum, in my opinion Sawyer has failed to demonstrate that it
is more likely than not that his death sentence was clearly
erroneous. Accordingly, I conclude that the court below was correct
in declining to reach the merits of Sawyer's successive and abusive
claims.
v
The Court rejects an "innocence of death" standard that
recognizes constitutional errors affecting
mitigating
evidence because such a standard "would so broaden the inquiry as
to make it anything but a 'narrow' exception to the principle of
finality."
Ante, at 345. As the foregoing analysis
indicates, however, the Court's concerns are unfounded. Indeed,
even when federal courts have applied a less restrictive standard
than the standard I propose, those courts have rarely found
"innocence of death" and reached the merits of a defaulted,
successive, or abusive claim. See
Deutscher v.
Whitley, 946 F.2d
1443 (CA9 1991);
Stokes v.
4 See La. Code Crim. Proc. Ann., Art. 905.5(e) (West 1984)
(defining "mitigating circumstances" to include the fact that "the
capacity of the offender to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect" at the time of
the offense).
376
STEVENS, J., concurring in judgment
Armontrout, 893 F.2d
152, 156 (CA8 1989);
Smith v.
Armontrout,
888 F.2d
530, 545 (CA8 1989).
Similarly, I do not share the Court's concern that a standard
broader than the eligibility standard creates "a far more difficult
task" for federal courts.
Ante, at 346. As noted above, both
the "probably resulted" standard and the "clearly-erroneous"
standard have long been applied by federal courts in a variety of
contexts. Moreover, to the extent that the "clearly-erroneous"
standard is more difficult to apply than the Court's "eligibility"
test, I believe that that cost is far outweighed by the importance
of making just decisions in the few cases that fit within this
narrow exception. To my mind, any added administrative burden is
surely justified by the overriding interest in minimizing the risk
of error in implementing the sovereign's decision to take the life
of one of its citizens. As we observed in
Gardner v.
Florida, 430
U. S. 349, 360 (1977), "if the disputed matter is of critical
importance, the time invested in ascertaining the truth would
surely be well spent if it makes the difference between life and
death."
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