OCTOBER TERM, 1994
Syllabus
SCHLUP
v. DELO, SUPERINTENDENT, POTOSI CORRECTIONAL
CENTER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No.93-7901. Argued October 3, 1994-Decided January 23,1995
Petitioner Schlup, a Missouri prisoner, was convicted of
participating in the murder of a fellow inmate and sentenced to
death. In this, his second federal habeas petition, he alleged that
constitutional error at his trial deprived the jury of critical
evidence that would have established his innocence. The District
Court declined to reach the petition's merits, holding that Schlup
could not satisfy the threshold showing of "actual innocence"
required by
Sawyer v.
Whitley, 505 U. S. 333, 336, under
which a petitioner must demonstrate "by clear and convincing
evidence that, but for a constitutional error, no reasonable juror
would have found" him guilty.
Held: The standard of
Murray v.
Carrier,
477 U. S.
478-which requires a habeas petitioner to show that "a
constitutional violation has probably resulted in the conviction of
one who is actually innocent,"
id., at 496rather than the
more stringent
Sawyer standard, governs the miscarriage of
justice inquiry when a petitioner who has been sentenced to death
raises a claim of actual innocence to avoid a procedural bar to the
consideration of the merits of his constitutional claims. Pp.
313-332.
(a) In contrast to the actual innocence claim asserted in
Herrera v.
Collins, 506 U. S. 390-that the
execution of an innocent person convicted in an error-free trial
violates the Eighth Amendment-Schlup's claim is accompanied by an
assertion of constitutional error at trial: the ineffectiveness of
his counsel and the withholding of evidence by the prosecution. As
such, his conviction may not be entitled to the same degree of
respect as one that is the product of an error-free trial, and his
evidence of innocence need carry less of a burden. In
Herrera, the evidence of innocence would have had to be
strong enough to make the execution "constitutionally intolerable"
even if the conviction was the product of a fair trial,
while here the evidence must establish sufficient doubt about
Schlup's guilt to justify the conclusion that his execution would
be a miscarriage of justice
unless his conviction was the
product of a fair trial. Pp. 313-317.
(b) The societal interests in finality, comity, and conservation
of scarce judicial resources dictate that a habeas court may not
ordinarily reach the merits of successive or abusive claims, absent
a showing of cause
299
and prejudice. However, since habeas corpus is, at its core, an
equitable remedy, a court must adjudicate even successive claims
when required to do so by the ends of justice. Thus, in a trio of
cases, this Court firmly established an exception for fundamental
miscarriages of justice.
Carrier, 477 U. S., at 495;
Kuhlmann v.
Wilson, 477 U. S. 436;
Smith v.
Murray, 477 U. S. 527. To ensure
that the fundamental miscarriage of justice exception would remain
"rare" and be applied only in the "extraordinary case," while at
the same time ensuring that relief would be extended to those who
are truly deserving, the Court has explicitly tied the exception to
the petitioner's innocence.
Carrier and
Kuhlmann also
expressed the standard of proof that should govern consideration of
such claims: The petitioner must show that the constitutional error
"probably" resulted in the conviction of one who was actually
innocent. The
Sawyer Court made no attempt to reconcile its
more exacting standard of proof with
Carrier's use of
"probably." pp. 317-323.
(c)
Carrier, rather than
Sawyer, properly strikes
the balance between the societal interests and the individual
interest in justice, when the claimed injustice is that
constitutional error has resulted in the conviction of one who is
actually innocent. Though challenges to the propriety of imposing a
death sentence are routinely asserted in capital cases, a
substantial claim that constitutional error has caused the
conviction of an innocent person is extremely rare and must be
supported by new reliable evidence that was not presented at trial,
evidence obviously unavailable in the vast majority of cases. Thus,
the threat to judicial resources, finality, and comity posed by
actual innocence claims is significantly less than that posed by
sentencing claims. More importantly, the individual interest in
avoiding injustice is most compelling in the context of actual
innocence, since the quintessential miscarriage of justice is the
execution of an innocent person. The less exacting
Carrier
standard of proof reflects the relative importance attached to the
ultimate decision. Application of the stricter
Sawyer
standard would give insufficient weight to the correspondingly
greater injustice that is implicated by an actual innocence claim.
Pp.323-327.
(d) To satisfy
Carrier's "actual innocence" standard, a
petitioner must show that, in light of the new evidence, it is more
likely than not that no reasonable juror would have found him
guilty beyond a reasonable doubt. The focus on actual innocence
means that a district court is not bound by the admissibility rules
that would govern at trial, but may consider the probative force of
relevant evidence that was either wrongly excluded or unavailable
at trial. The district court must make a probabilistic
determination about what reasonable, properly instructed jurors
would do, and it is presumed that a reasonable juror
300
Syllabus
would consider fairly all of the evidence presented and would
conscientiously obey the trial court's instructions requiring proof
beyond a reasonable doubt. The
Carrier standard, although
requiring a substantial showing, is by no means equivalent to the
standard governing review of insufficient evidence claims.
Jackson v.
Virginia, 443 U. S. 307,
distinguished. In applying the
Carrier standard to Schlup's
request for an evidentiary hearing, the District Court must assess
the probative force of the newly presented evidence in connection
with the evidence of guilt adduced at trial. The court is not
required to test the new evidence by a standard appropriate for
deciding a motion for summary judgment, but may consider how the
submission's timing and the affiants' likely credibility bear on
the probable reliability of that evidence. Pp.327-332.
11 F.3d
738, vacated and remanded.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J.,
filed a concurring opinion,
post, p. 332. REHNQUIST, C. J.,
filed a dissenting opinion, in which KENNEDY and THOMAS, JJ.,
joined,
post, p. 334. SCALIA, J., filed a dissenting
opinion, in which THOMAS, J., joined,
post, p. 342.
Sean D. O'Brien argued the cause for petitioner. With him on the
briefs were Anthony G. Amsterdam, Randy Hertz, and Timothy K.
Ford.
Jeremiah W (Jay) Nixon, Attorney General of Missouri,
argued the cause for respondent. With him on the brief were
Stephen D. Hawke and
Frank A. Jung, Assistant
Attorneys General. *
*Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Daniel E. Lungren,
Attorney General of California,
George Williamson, Chief
Assistant Attorney General,
Dane R. Gillette, Deputy
Attorney General, and
Mark L. Krotoski, Special Assistant
Attorney General,
James H. Evans, Attorney General of
Alabama,
Bruce M. Botelho, Attorney General of Alaska,
Grant Woods, Attorney General of Arizona,
Gale A.
Norton, Attorney General of Colorado,
John M. Bailey,
Chief State's Attorney of Connecticut,
Charles M. Oberly
III, Attorney General of Delaware,
Robert A.
Butterworth, Attorney General of Florida,
Larry
EchoHawk, Attorney General of Idaho,
Roland W Burris,
Attorney General of Illinois,
Chris Gorman, Attorney General
of Kentucky,
Richard p. Ieyoub, Attorney General of
Louisiana,
Mike Moore, Attorney General of Mississippi,
Joseph P. Mazurek, Attorney General of Montana,
Don
301
JUSTICE STEVENS delivered the opinion of the Court. Petitioner
Lloyd E. Schlup, Jr., a Missouri prisoner currently under a
sentence of death, filed a second federal habeas corpus petition
alleging that constitutional error deprived the jury of critical
evidence that would have established his innocence. The District
Court, without conducting an evidentiary hearing, declined to reach
the merits of the petition, holding that petitioner could not
satisfy the threshold showing of "actual innocence" required by
Sawyer v.
Whitley, 505 U. S. 333 (1992).
Under
Sawyer, the petitioner must show "by clear and
convincing evidence that, but for a constitutional error, no
reasonable juror would have found the petitioner" guilty.
Id., at 336. The Court of Appeals affirmed. We granted
certiorari to consider whether the
Sawyer standard provides
adequate protection against the kind of miscarriage of justice that
would result from the execution of a person who is actually
innocent.
I
On February 3, 1984, on Walk 1 of the high security area of the
Missouri State Penitentiary, a black inmate named Arthur Dade was
stabbed to death. Three white inmates from
Stenberg, Attorney General of Nebraska,
Frankie Sue
Del Papa, Attorney General of Nevada,
Deborah T. Poritz,
Attorney General of New Jersey,
Tom Udall, Attorney General
of New Mexico,
Michael F.
Easley, Attorney General of
North Carolina,
Lee Fisher, Attorney General of Ohio,
Susan B. Loving, Attorney General of Oklahoma,
Ernest D.
Preate, Jr., Attorney General of Pennsylvania,
T. Travis
Medlock, Attorney General of South Carolina,
Mark
Barnett, Attorney General of South Dakota,
Charles W
Burson, Attorney General of Tennessee,
Dan Morales,
Attorney General of Texas,
Jan Graham, Attorney General of
Utah,
James S.
Gilmore III, Attorney General of
Virginia, and
Joseph B. Meyer, Attorney General of Wyoming;
and for the Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
Harold R. Tyler, Jr., and
Eric M. Freedman filed a
brief of
amici curiae for Five Innocent Former Death Row
Inmates et al.
302
Walk 2, including petitioner, were charged in connection with
Dade's murder.
At petitioner's trial in December 1985, the State's evidence
consisted principally of the testimony of two corrections officers
who had witnessed the killing. On the day of the murder, Sergeant
Roger Flowers was on duty on Walk 1 and Walk 2, the two walks on
the lower floor of the prison's high security area. Flowers
testified that he first released the inmates on Walk 2 for their
noon meal and relocked their cells. After unlocking the cells to
release the inmates on Walk 1, Flowers noticed an inmate named
Rodnie Stewart moving against the flow of traffic carrying a
container of steaming liquid. Flowers watched as Stewart threw the
liquid in Dade's face. According to Flowers, Schlup then jumped on
Dade's back, and Robert O'Neal joined in the attack. Flowers
shouted for help, entered the walk, and grabbed Stewart as the two
other assailants fled.
Officer John Maylee witnessed the attack from Walk 7, which is
three levels and some 40-50 feet above Walks 1 and 2.1 Maylee first
noticed Schlup, Stewart, and O'Neal as they were running from Walk
2 to Walk 1 against the flow of traffic. According to Maylee's
testimony, Stewart threw a container of liquid at Dade's face, and
then Schlup jumped on Dade's back. O'Neal then stabbed Dade several
times in the chest, ran down the walk, and threw the weapon out a
window. Maylee did not see what happened to Schlup or Stewart after
the stabbing.
The State produced no physical evidence connecting Schlup to the
killing, and no witness other than Flowers and Maylee testified to
Schlup's involvement in the murder.2
1 Maylee was unavailable to testify at Schlup's trial. Testimony
from Maylee's pretrial deposition was admitted in evidence and was
read to the jury.
2 In contrast, the evidence of the involvement of Stewart and
O'Neal in Dade's murder was substantial. Stewart, for example, was
apprehended
303
Schlup's defense was that the State had the wrong man.3 He
relied heavily on a videotape from a camera in the prisoners'
dining room. The tape showed that Schlup was the first inmate to
walk into the dining room for the noon meal, and that he went
through the line and got his food. Approximately 65 seconds after
Schlup's entrance, several guards ran out of the dining room in
apparent response to a distress call. Twenty-six seconds later,
O'Neal ran into the dining room, dripping blood.4 Shortly
thereafter, Schlup and O'Neal were taken into custody.
Schlup contended that the videotape, when considered in
conjunction with testimony that he had walked at a normal pace from
his cell to the dining room,5 demonstrated that he could not have
participated in the assault. Because the videotape showed
conclusively that Schlup was in the dining room 65 seconds before
the guards responded to the distress call, a critical element of
Schlup's defense was determining when the distress call went out.
Had the distress call sounded shortly after the murder, Schlup
would not have had time to get from the prison floor to the dining
room, and
by Flowers during the struggle itself. And when O'Neal was taken
into custody, his clothes were covered with blood and he was
bleeding from lacerations on his right hand.
3 Schlup did not testify at the guilt phase of the trial. At the
sentencing hearing, Schlup did testify and maintained his innocence
of the offense. He continued to maintain his innocence even after
the jury had sentenced him to death.
4 After stabbing Dade, O'Neal broke a window with his hand and
threw the knife out the window. That resulted in multiple
lacerations to his right hand. Before leaving the prison floor,
O'Neal paused briefly at a utilities sink on Walk 2 to try to wash
off the blood, and then continued on to the dining room.
O'Neal was followed into the dining room by inmate Randy Jordan,
who is identified in some affidavits attesting to petitioner's
innocence as the third participant in the crime. See
infra,
at 308-309. However, Jordan's name was not mentioned at Schlup's
trial.
5 Schlup's cell was at the end of Walk 2, closest to the dining
room.
304
thus he could not have participated in the murder. Conversely,
had there been a delay of several minutes between the murder and
the distress call, Schlup might have had sufficient time to
participate in the murder and still get to the dining room over a
minute before the distress call went out.6
The prosecutor adduced evidence tending to establish that such a
delay had in fact occurred. First, Flowers testified that none of
the officers on the prison floor had radios, thus implying that
neither he nor any of the other officers on the floor was able to
radio for help when the stabbing occurred. Second, Flowers
testified that after he shouted for help, it took him "a couple
[of] minutes" to subdue Stewart.7 Flowers then brought Stewart
downstairs, encountered Captain James Eberle, and told Eberle that
there had been a "disturbance."8 Eberle testified that he went
upstairs to the prison floor, and then radioed for assistance.
Eberle estimated that the elapsed time from when he first saw
Flowers
6 A necessary element of Schlup's defense was that Flowers and
Maylee were mistaken in their identification of Schlup as one of
the participants in the murder. Schlup suggested that Flowers had
taken a visitor to Schlup's cell just 30 minutes before the murder.
Schlup argued that Flowers had therefore had Schlup "on the brain,"
Trial Tr. 493-494, thus explaining why, in the confusion
surrounding the murder, Flowers might have mistakenly believed that
he had seen Schlup.
Schlup argued that Maylee's identification was suspect because
Maylee was three floors away from the murder and did not have an
unobstructed view of the murder scene. Schlup further suggested
that Maylee's identification of Schlup had been influenced by a
postincident conversation between Maylee and another officer who
had talked to Flowers.
Schlup also argued that there were inconsistencies between the
description of the murder provided by Flowers and that provided by
Maylee. For example, Maylee testified that he saw Schlup, Stewart,
and O'Neal running together against the flow of traffic, and that
the three men had stopped when they encountered Dade. See
id., at 332. Flowers noticed only Stewart running against
the flow of traffic, and he testified that O'Neal and Schlup were
at the other end of the walk on the far side of Dade. See
id., at 249.
7Id., at 243. 8Id., at 245.
305
until he radioed for help was "approximately a minute." 9 The
prosecution also offered testimony from a prison investigator who
testified that he was able to run from the scene of the crime to
the dining room in 33 seconds and to walk the distance at a normal
pace in a minute and 37 seconds.
Neither the State nor Schlup was able to present evidence
establishing the exact time of Schlup's release from his cell on
Walk 2, the exact time of the assault on Walk 1, or the exact time
of the radio distress call. Further, there was no evidence
suggesting that Schlup had hurried to the dining room.10
After deliberating overnight, the jury returned a verdict of
guilty. Following the penalty phase, at which the victim of one of
Schlup's prior offenses testified extensively about the sordid
details of that offense,l1 the jury sentenced Schlup to death. The
Missouri Supreme Court affirmed Schlup's conviction and death
sentence,
State v.
Schlup, 724 S. W. 2d 236 (Mo.
1987), and this Court denied certiorari,
Schlup v.
Missouri, 482 U. S. 920 (1987).12
9Id., at 212, 214-215.
10 In fact, the evidence presented was to the contrary. Two
inmates, Bernard Bailey and Arthur St. Peter, testified that they
were behind Schlup in line on the way to the dining room and that
they had all walked at a normal pace. Lieutenant Robert Faherty,
the corrections officer on duty in the corridor leading from the
prison floor to the dining room, testified that Schlup was the
first inmate into the corridor on the day of the murder. Faherty
also testified that he saw Schlup pause and yell something out one
of the windows in the corridor, and that he told Schlup to move on.
Faherty testified that nothing else unusual had occurred while
Schlup was in the corridor.
On the other hand, both Maylee's testimony and the videotape
establish that O'Neal ran from Walk 1 to the dining room.
11 Schlup had been convicted of sodomy and assault in connection
with a series of attacks on a cellmate while he was being held in a
county jail.
12 The other alleged participants in the crime were convicted in
earlier, separate trials. O'Neal, who did the stabbing, was
sentenced to death, see
State v.
O'Neal, 718 S. W. 2d
498 (Mo. 1986); Stewart, who was apprehended by Flowers at the
scene, was sentenced to 50 years' imprisonment
306
II
On January 5, 1989, after exhausting his state collateral
remedies,13 Schlup filed a
pro se petition for a federal
writ of habeas corpus, asserting the claim, among others, that his
trial counsel was ineffective for failing to interview and to call
witnesses who could establish Schlup's innocence.14 The District
Court concluded that Schlup's ineffectiveness claim was
procedurally barred, and it denied relief on that claim without
conducting an evidentiary hearing.15 The Court of Appeals affirmed,
though it did not rely on the alleged procedural bar.
Schlup
v.
Armontrout, 941 F.2d
631 (CA8 1991). Instead, based on its own examination of the
record, the Court found that trial counsel's performance had not
been constitutionally ineffective, both because counsel had
reviewed statements that Schlup's potential witnesses had given to
prison investigators, and because the testimony of those witnesses
"would be repetitive of the testimony to be presented at trial."
Id., at 639.16 But cf.
11 F.3d
738, 746,
without eligibility for probation or parole, see
State v.
Stewart, 714 S. W. 2d 724 (Mo. App. 1986).
13 The denial of Schlup's motion for postconviction relief was
affirmed by the Missouri Supreme Court on October 18, 1988. See
Schlup v.
State, 758 S. W. 2d 715 (Mo. 1988).
14 Schlup identified three nonparticipant witnesses who he
claimed had witnessed the murder: Van Robinson, Lamont Griffin Bey,
and Ricky McCoy. Schlup also faulted trial counsel for failing to
interview Randy Jordan, whom Schlup identified as the third
participant in the murder.
15 Schlup had presented the ineffectiveness claim in his state
postconviction motion, but had failed to raise it on appeal. See
Schlup v.
Armontrout, No. 89-0020C(3), 1989 U. S.
Dist. LEXIS 18285, *11-*13 (ED Mo., May 31, 1989).
Schlup's first federal habeas petition also raised several other
claims, all of which were denied either as procedurally barred or
on the merits.
16 The Court of Appeals also addressed Schlup's other claims.
Over Judge Heaney's dissent, the court rejected Schlup's claim that
his counsel had been ineffective for failing to adduce available
mitigating evidence at the penalty hearing.
Schlup v.
Armontrout, 941 F. 2d, at 639. The court
307
n. 3 (CAS 1993) (Heaney, J., dissenting) (challenging the
conclusion that such testimony would have been "repetitive"). The
Court of Appeals denied a petition for rehearing and suggestion for
rehearing en banc,
Schlup v.
Armontrout, 945 F.2d
1062 (1991), and we denied a petition for certiorari, 503 U. S.
909 (1992).
On March 11, 1992, represented by new counsel, Schlup filed a
second federal habeas corpus petition. That petition raised a
number of claims, including that (1) Schlup was actually innocent
of Dade's murder, and that his execution would therefore violate
the Eighth and Fourteenth Amendments, cf.
Herrera v.
Collins, 506
U. S. 390 (1993); (2) trial counsel was ineffective for failing
to interview alibi witnesses; and (3) the State had failed to
disclose critical exculpatory evidence. The petition was supported
by numerous affidavits from inmates attesting to Schlup's
innocence.
The State filed a response arguing that various procedural bars
precluded the District Court from reaching the merits of Schlup's
claims and that the claims were in any event meritless. Attached to
the State's response were transcripts of inmate interviews
conducted by prison investigators just five days after the murder.
One of the transcripts contained an interview with John Green, an
inmate who at the time was the clerk for the housing unit. In his
interview, Green stated that he had been in his office at the end
of the walks when the murder occurred. Green stated that Flowers
had
also rejected Schlup's separate claim challenging the denial of
his request for an evidentiary hearing in the District Court.
Schlup had requested such a hearing to develop evidence so that he
could in turn challenge the failure of the state court to grant his
request for a continuance of his state postconviction proceedings.
Schlup had requested that continuance to obtain additional evidence
to support his claim of innocence. The Court of Appeals held that
Schlup's challenge to the state court's failure to grant a
continuance was not cognizable in a federal habeas corpus action.
Id., at 642.
308
told him to call for help, and that Green had notified base of
the disturbance shortly after it began.17
Schlup immediately filed a traverse arguing that Green's
affidavit provided conclusive proof of Schlup's innocence. Schlup
contended that Green's statement demonstrated that a call for help
had gone out shortly after the incident. Because the videotape
showed that Schlup was in the dining room some 65 seconds before
the guards received the distress call, Schlup argued that he could
not have been involved in Dade's murder. Schlup emphasized that
Green's statement was not likely to have been fabricated, because
at the time of Green's interview, neither he nor anyone else would
have realized the significance of Green's call to base. Schlup
tried to buttress his claim of innocence with affidavits from
inmates who stated that they had witnessed the event and that
Schlup had not been present.18 Two of those affi-
l7"BROOKS: John, whenever you saw Dade fall what did you do
then?
"GREEN: I stepped out of the office and I heard Sgt. Flowers
calling for officers cause they had had a fight. Couldn't get
nobody so he told me to call base to notify them of the fight and
that's what I did.
"DEARIXON: That's all I have, John. Thank you very much."
Response to Order To Show Cause Why a Writ of Habeas Corpus Should
Not Be Granted, Exhibit T (Transcripts of Inmate Interviews), p.
31.
If the total time required for Green to respond to Flowers'
instruction and for the base to send out a distress call in
response to Green's call amounted to a mere 15-17 seconds, O'Neal
running at top speed would have had 8-10 seconds to wash his hands
and still would have been able to arrive in the dining room some 26
seconds after the distress call.
18 In the District Court, Schlup attempted to supplement the
record with several detailed affidavits from inmates attesting to
his innocence. For example, Lamont Griffin Bey, a black inmate,
submitted an affidavit in which he stated: "The first thing I saw
of the fight was Rodney
[sic] Stewart throw liquid in Arthur
Dade's face, and O'Neal stab him .... I knew Lloyd Schlup at that
time, but we were not friends. Lloyd Schlup was not present at the
scene of the fight." Affidavit of Lamont Griffin Bey, pp. 2-3 (Apr.
7, 1993). Griffin Bey also stated: ''When this happened, there was
a lot of racial tension in the prison .... I would not stick my
neck out to help a white person under these circumstances normally,
but
309
davits suggested that Randy Jordan-who occupied the cell between
O'Neal and Stewart in Walk 2, and who, as noted above, see n. 4,
supra, is shown on the videotape arriving at lunch with
O'Neal-was the third assailant.
On August 23, 1993, without holding a hearing, the District
Court dismissed Schlup's second habeas petition and vacated the
stay of execution that was then in effect. The District Court
concluded that Schlup's various filings did not provide adequate
cause for failing to raise his new claims more promptly. Moreover,
the court concluded that Schlup had failed to meet the
Sawyer v.
Whitley, 505 U. S. 333 (1992),
standard for showing that a refusal to entertain those claims would
result in a fundamental miscarriage of justice. In its discussion
of the evidence, the court made no separate comment on the
significance of Green's statement.19
On September 7, 1993, petitioner filed a motion to set aside the
order of dismissal, again calling the court's attention to
I am willing to testify because I know Lloyd Schlup is
innocent."
Id., at 4.
Similarly, inmate Donnell White swore an affidavit in which he
stated:
"Three white guys were coming the opposite way. One of them had
a tumbler of something that he threw in [Dade's] face. One or two
of the other ones started sticking [Dade] with an ice-pick-type
knife." Affidavit of Donnell White, at 1 (Apr. 21, 1993). White
further stated: "I have seen Lloyd Schlup, and I know who he is. He
is definitely not one of the guys I saw jump Arthur Dade .... I
know that one of the three men involved has never been prosecuted,
and I know that Lloyd Schlup is innocent. I barely know Lloyd
Schlup, and I have no reason to lie for him. I told the
investigators that I didn't see anything because I didn't want to
get involved."
Id., at 3.
Though the District Court ultimately denied Schlup's motion to
supplement the record, the inmate affidavits are part of the record
on appeal.
19 The District Court focused primarily on the "suspect" nature
of affidavits that are produced after a long delay, cf.
Herrera v.
Collins, 506 U. S. 390, 423-424
(1993) (O'CONNOR, J., concurring), and that come from inmates. The
court concluded that the affidavits presented by Schlup, when
considered against the positive identifications made by Flowers and
Maylee, failed to constitute a sufficiently persuasive showing of
actual innocence. App.79.
310
Green's statement. Two days later, Schlup filed a supplemental
motion stating that his counsel had located John Green 20 and had
obtained an affidavit from him. That affidavit confirmed Green's
postincident statement that he had called base shortly after the
assault. Green's affidavit also identified Jordan rather than
Schlup as the third assailant.21
20Green had been released from prison on January 29, 1986. Green
Mfidavit, at 4 (Sept. 7, 1993).
21 Green's affidavit stated:
"I looked down one walk, and I saw Randy Jordan holding Arthur
Dade.
Jordan was standing behind Dade, and had Dade's arms pinned to
his sides from behind. I saw Robert O'Neal stab Dade several times
in the chest while Jordan was holding him.
"Dade broke loose and ran straight toward me. I saw him collide
with Rodnie Stewart and fall to the ground near the paint storage
area. Sergeant Flowers hollered for help. I think there was so much
noise that he didn't think the other guards in the Housing Unit
heard him, so he told me to call base. He was on his way to break
up the fight when he told me to call base. I immediately went into
the office, picked up the phone, and called base.
"A sergeant at the base picked up the phone. I told him there
was a fight in Housing Unit 5A. He said something like, 'OK,' and I
hung up the phone."
Id., at 2-3.
Green stated that his call to base came "within seconds of Dade
hitting the ground. It could not have been more than a half minute
or a minute after he was stabbed by Jordan and O'Neal. It happened
very fast."
Id., at 4.
Green also explained why he had earlier denied witnessing the
murder:
"I told [investigators] I didn't [see the murder] because I was
concerned about my safety. I know that Jordan and O'Neal were in
the Aryan Brotherhood, and if I said I saw them do it, they could
easily have me killed."
Id., at 3-4.
Green continued: "If I had been contacted before Schlup's trial,
I would have told his attorney that he was not there when Dade was
stabbed, and I would have testified that I called base within
seconds after Dade hit the ground. I might have been reluctant to
snitch on Jordan and O'Neal. I'm not afraid now because I haven't
been in prison for more than 71/2 years, and I have been working
steadily ever since. I have no intention of going back to prison."
Id., at 6.
311
The District Court denied the motion and the supplemental motion
without opinion.
Petitioner then sought from the Court of Appeals a stay of
execution pending the resolution of his appeal. Relying on Justice
Powell's plurality opinion in
Kuhlmann v.
Wilson,
477 U. S. 436
(1986), Schlup argued that the District Court should have
entertained his second habeas corpus petition, because he had
supplemented his constitutional claim "with a colorable claim of
factual innocence."
Id., at 454.
On October 15, 1993, the Court of Appeals denied the stay
application. In an opinion that was subsequently vacated, the
majority held that petitioner's claim of innocence was governed by
the standard announced in
Sawyer v.
Whitley, 505 U. S. 333 (1992), and
it concluded that under that standard, the evidence of Schlup's
guilt that had been adduced at trial foreclosed consideration of
petitioner's current constitutional claims.22
Judge Heaney dissented. Relying on Green's affidavit, the
videotape, and the affidavits of four other eyewitnesses, Judge
Heaney concluded that the petitioner had met both the
Kuhlmann standard and a proper reading of the
Sawyer
standard.23 Cf.
infra, at 331. He believed that the District
Court should have conducted an evidentiary hearing in which the
affiants would have been subjected to examination by the State so
"their credibility could be accurately determined." 24
In the meantime, petitioner's counsel obtained an affidavit from
Robert Faherty, the former lieutenant at the prison whom Schlup had
passed on the way to lunch on the day of the murder and who had
reprimanded Schlup for shouting out the window. See n. 10,
supra. Faherty's affidavit stated that Schlup had been in
Faherty's presence for at least
22 Schlup v.
Delo, No. 93-3272, 1993 WL 409815, *3
(CA8, Oct. 15, 1993).
23Id., at *7.
24Id., at *5.
312
two and a half minutes; that Schlup was walking at a leisurely
pace; and that Schlup "was not perspiring or breathing hard, and he
was not nervous." Affidavit of Robert Faherty " 4, 6 (Oct. 26,
1993).25
On November 15, 1993, the Court of Appeals vacated its earlier
opinion and substituted a more comprehensive analysis of the law to
support its decision to deny Schlup's request for a stay.
11 F.3d
738. The majority adhered to its earlier conclusion that
Sawyer stated the appropriate standard for evaluating
Schlup's claim of actual innocence. 11 F. 3d, at 740. The opinion
also contained an extended discussion of Schlup's new evidence. The
court noted in particular that Green's new affidavit was
inconsistent in part with both his prison interview and his
testimony at the Stewart trial.
Id., at 742. The court
viewed Faherty's affidavit as simply "an effort to embellish and
expand upon his testimony" and concluded "that a habeas court
should not permit retrial on such a basis."
Id., at 743.
Judge Heaney again dissented, concluding that Schlup had
"presented truly persuasive evidence that he is actually innocent,"
and that the District Court should therefore have addressed the
merits of Schlup's constitutional claims.
Id., at 744. Judge
Heaney also argued that Schlup's ineffectiveness claim was
substantial. He noted that Schlup's trial counsel failed to conduct
individual interviews with Griffin Bey, McCoy, or any of the other
inmates who told investigators that they had seen the killing.
Moreover, counsel failed to interview Green about his statement
that he had called
25 Faherty had testified at Schlup's trial, but he had not been
asked about the significant details of his encounter with Schlup
that are recited in his affidavit. Faherty Affidavit' 9 (Oct. 26,
1993). Faherty left the Department of Corrections in 1989. He
stated in his affidavit that he had been prompted to come forward
after hearing about Schlup's case through an article in the local
newspaper.
Id.,' 11.
313
base. In fact, counsel apparently failed to conduct individual
interviews with any of the potential witnesses to the crime.
Judge Heaney adhered to his conclusion that Schlup's counsel was
ineffective, even though counsel allegedly had reviewed 100
interviews conducted by prison investigators.26 Judge Heaney argued
that counsel's review of the interview transcripts-rather than
demonstrating counsel's effectiveness-made counsel's failure to
conduct his own interviews with Green and the few inmates who
admitted seeing the attack even more troubling. See
id., at
747, n. 5. Judge Heaney concluded that Schlup's case should be
remanded to the District Court to conduct an evidentiary hearing
and, if appropriate, to address the merits of Schlup's
constitutional claims.
On November 17, 1993, the Court of Appeals denied a suggestion
for rehearing en banco Dissenting from that denial, three judges
joined an opinion describing the question whether the majority
should have applied the standard announced in
Sawyer v.
Whitley, supra, rather than the
Kuhlmann standard as
"a question of great importance in habeas corpus jurisprudence." 11
F. 3d, at 755. We granted certiorari to consider that question. 511
U. S. 1003
(1994).21
III
As a preliminary matter, it is important to explain the
difference between Schlup's claim of actual innocence and the
26 The transcripts of the individual interviews conducted by the
prison investigators were relatively brief: The entire written
transcript of the investigators' interview with Green, for example,
takes up less than one page. The vast majority of the interviews
consisted of simple statements that the interviewee had not seen
Dade's killing.
27 Though the Court of Appeals denied Schlup's motion for a stay
of execution, the Governor of Missouri granted a stay one day
before Schlup's execution date. The Governor then ordered a Board
of Inquiry to conduct clemency proceedings. Those proceedings are
apparently continuing.
314
claim of actual innocence asserted in
Herrera v.
Collins, 506 U. S. 390 (1993). In
Herrera, the
petitioner advanced his claim of innocence to support a novel
substantive constitutional claim, namely, that the execution of an
innocent person would violate the Eighth Amendment.28 Under
petitioner's theory in
Herrera, even if the proceedings that
had resulted in his conviction and sentence were entirely fair and
error free, his innocence would render his execution a
"constitutionally intolerable event."
Id., at 419 (O'CONNOR,
J., concurring).
Schlup's claim of innocence, on the other hand, is procedural,
rather than substantive. His constitutional claims are based not on
his innocence, but rather on his contention that the
ineffectiveness of his counsel, see
Strickland v.
Washington, 466 U. S. 668 (1984), and
the withholding of evidence by the prosecution, see
Brady v.
Maryland, 373
U. S. 83 (1963), denied him the full panoply of protections
afforded to criminal defendants by the Constitution. Schlup,
however, faces procedural obstacles that he must overcome before a
federal court may address the merits of those constitutional
claims. Because Schlup has been unable to establish "cause and
prejudice" sufficient to excuse his failure to present his evidence
in support of his first federal petition, see
McCleskey v.
Zant, 499 U.
S. 467, 493-494 (1991),29 Schlup may obtain review of his
constitutional claims only if he falls
28 In
Herrera, we assumed for the sake of argument that
"in a capital case a truly persuasive demonstration of 'actual
innocence' made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim." 506 U.
S., at 417.
29 Schlup argued in the District Court that the lack of
diligence of his appointed postconviction counsel, coupled with
problems created by the State, established cause and prejudice. See
App. 38-43 (state postconviction proceedings);
id., at 43-45
(proceedings on first federal habeas). That argument was rejected
by the District Court and the Court of Appeals, and petitioner does
not renew it in this Court.
315
within the "narrow class of cases ... implicating a fundamental
miscarriage of justice,"
id., at 494. Schlup's claim of
innocence is offered only to bring him within this "narrow class of
cases."
Schlup's claim thus differs in at least two important ways from
that presented in
Herrera. First, Schlup's claim of
innocence does not by itself provide a basis for relief. Instead,
his claim for relief depends critically on the validity of his
Strickland and
Brady claims.30 Schlup's claim of
innocence is thus "not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits."
Herrera, 506 U. S., at 404; see also 11 F. 3d, at 740.31
More importantly, a court's assumptions about the validity of
the proceedings that resulted in conviction are fundamentally
different in Schlup's case than in Herrera's. In
Herrera,
petitioner's claim was evaluated on the assumption that the trial
that resulted in his conviction had been error free. In such a
case, when a petitioner has been "tried before a jury of his peers,
with the full panoply of protections that our Constitution affords
criminal defendants," 506 U. S., at 419 (O'CONNOR, J., concurring),
it is appropriate to apply an
30 In light of our conclusion that the courts below applied the
wrong standard in evaluating Schlup's gateway innocence claim, see
infra, at 326-327, we need not express a view concerning the
merits of Schlup's underlying constitutional claims.
31 In his submissions to the federal courts, Schlup has
consistently argued that his execution would violate the Eighth and
Fourteenth Amendments because he is actually innocent. That
Herrera claim was rejected in the District Court and in the
Court of Appeals. In the dissent from the denial of rehearing en
banc, three judges stated that they were persuaded by Judge
Heaney's dissent that there was "at least a substantial likelihood"
that Schlup could meet even the extraordinarily high showing
required by
Herrera. We denied certiorari on Schlup's
Herrera claim, and accordingly we express no opinion as to
its merits.
316
"'extraordinarily high'" standard of review,
id., at 426
(O'CONNOR, J., concurring).32
Schlup, in contrast, accompanies his claim of innocence with an
assertion of constitutional error at trial. For that reason,
Schlup's conviction may not be entitled to the same degree of
respect as one, such as Herrera's, that is the product of an
error-free trial. Without any new evidence of innocence, even the
existence of a concededly meritorious constitutional violation is
not in itself sufficient to establish a miscarriage of justice that
would allow a habeas court to reach the merits of a barred claim.
However, if a petitioner such as Schlup presents evidence of
innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error, the petitioner
should be allowed to pass through the gateway and argue the merits
of his underlying claims.
Consequently, Schlup's evidence of innocence need carry less of
a burden. In
Herrera (on the assumption that petitioner's
claim was, in principle, legally well founded), the evidence of
innocence would have had to be strong enough to make his execution
"constitutionally intolerable"
even if his conviction was
the product of a fair trial. For Schlup, the evidence must
establish sufficient doubt about his guilt to justify the
conclusion that his execution would be a miscarriage of justice
unless his conviction was the product of a fair trial.
Our rather full statement of the facts illustrates the foregoing
distinction between a substantive
Herrera claim and Schlup's
procedural claim. Three items of evidence are particularly
relevant: the affidavit of black inmates attesting to the innocence
of a white defendant in a racially motivated killing; the affidavit
of Green describing his prompt call for
32 In
Herrera, it was not necessary to determine the
appropriate standard of review because petitioner had failed to
make "a truly persuasive demonstration of 'actual innocence'" under
any reasonable standard.
317
assistance; and the affidavit of Lieutenant Faherty describing
Schlup's unhurried walk to the dining room. If there were no
question about the fairness of the criminal trial, a
Herrera-type claim would have to fail unless the federal
habeas court is itself convinced that those new facts
unquestionably establish Schlup's innocence. On the other hand, if
the habeas court were merely convinced that those new facts raised
sufficient doubt about Schlup's guilt to undermine confidence in
the result of the trial without the assurance that that trial was
untainted by constitutional error, Schlup's threshold showing of
innocence would justify a review of the merits of the
constitutional claims.
IV
As this Court has repeatedly noted, "[a]t common law, res
judicata did not attach to a court's denial of habeas relief."
McCleskey, 499 U. S., at 479. Instead," 'a renewed
application could be made to every other judge or court in the
realm, and each court or judge was bound to consider the question
of the prisoner's right to a discharge independently, and not to be
influenced by the previous decisions refusing discharge.'"
Ibid., quoting W. Church, Writ of Habeas Corpus § 386, p.
570 (2d ed. 1893).
The Court has explained the early tolerance of successive
petitions, in part, by the fact that the writ originally performed
only the narrow function of testing either the jurisdiction of the
sentencing court or the legality of Executive detention. See
McCleskey, 499 U. S., at 478;
Wainwright v.
Sykes, 433 U.
S. 72, 78 (1977).33 The scope of the writ later expanded beyond
its original narrow purview to encompass
33 As this Court noted in
Wainwright v.
Sykes,
there have been "divergent discussions of the historic role of
federal habeas corpus." 433 U. S., at 77, n. 6. One recent
commentator has offered a new perspective on the history of the
writ. See Liebman, Apocalypse Next Time?: The Anachronistic Attack
on Habeas Corpus/Direct Review Parity, 92 Colum. L. Rev. 1997
(1992).
318
review of constitutional error that had occurred in the
proceedings leading to conviction. See
McCleskey, 499 U. S.,
at
478-479; Wainwright v.
Sykes, 433 U. S., at 79.
That broadening of the scope of the writ created the risk that
repetitious filings by individual petitioners might adversely
affect the administration of justice in the federal courts. Such
filings also posed a threat to the finality of state-court
judgments and to principles of comity and federalism. See,
e. g., McCleskey, 499 U. S., at 491;
Murray v.
Carrier, 477 U. S. 478, 487
(1986).
To alleviate the increasing burdens on the federal courts and to
contain the threat to finality and comity, Congress attempted to
fashion rules disfavoring claims raised in second and subsequent
petitions. For example, in 1966, Congress amended 28 U. S. C. §
2244(b) "to introduce 'a greater degree of finality of judgments in
habeas corpus proceedings.'''
Kuhlmann v.
Wilson, 477
U. S., at 450, quoting S. Rep. No. 1797, 89th Cong., 2d Sess., 2
(1966) (Senate Report); see also
McCleskey, 499 U. S., at
486. Similarly, in 1976, Congress promulgated Rule 9(b) of the
Rules Governing Habeas Corpus Proceedings in part to deal with the
problem of repetitive filings.
These same concerns resulted in a number of recent decisions
from this Court that delineate the circumstances under which a
district court may consider claims raised in a second or subsequent
habeas petition. In those decisions, the Court held that a habeas
court may not ordinarily reach the merits of successive claims,
Kuhlmann v.
Wilson, 477 U. S. 436 (1986), or
abusive claims,
McCleskey, 499 U. S., at 493, absent a
showing of cause and prejudice, see
Wainwright v.
Sykes, 433 U.
S. 72 (1977).34 The application of cause and
34 A "'successive petition' raises grounds identical to those
raised and rejected on the merits on a prior petition."
Kuhlmann v.
Wilson, 477 U. S., at 444, n. 6
(plurality opinion). An "abusive petition" occurs "where a prisoner
files a petition raising grounds that were available but not relied
upon in a prior petition, or engages in other conduct that
'disentitle[s] him
319
prejudice to successive and abusive claims conformed to this
Court's treatment of procedurally defaulted claims.
Carrier,
477 U. S. 478;
see also
McCleskey, 499 U. S., at 490-491 ("The doctrines of
procedural default and abuse of the writ implicate nearly identical
concerns flowing from the significant costs of federal habeas
corpus review"). See generally
Sawyer, 505 U. S., at
338-340. The net result of this congressional and judicial action
has been the adoption in habeas corpus of a "'qualified application
of the doctrine of res judicata.'"
McCleskey, 499 U. S., at
486, quoting Senate Report, at 2.35
At the same time, the Court has adhered to the principle that
habeas corpus is, at its core, an equitable remedy. This Court has
consistently relied on the equitable nature of habeas corpus to
preclude application of strict rules of res judicata. Thus, for
example, in
Sanders v.
United States, 373 U. S. 1 (1963), this
Court held that a habeas court must adjudicate even a successive
habeas claim when required to do so by the "ends of justice."
Id., at 15-17; see also
McCleskey, 499 U. S., at 495.
The
Sanders Court applied this equitable exception even to
petitions brought under 28
to the relief he seeks.'''
Ibid., quoting
Sanders
v.
United States, 373 U. S. 1, 17-19
(1963).
35 This Court has repeatedly noted the interplay between
statutory language and judicially managed equitable considerations
in the development of habeas corpus jurisprudence. For example, in
McCleskey, the Court noted that the doctrine of abuse of the
writ of habeas corpus "refers to a complex and evolving body of
equitable principles informed and controlled by historical usage,
statutory developments, and judicial decisions." 499 U. S., at 489.
Similarly, in
Wainwright v.
Sykes, the Court noted
its "historic willingness to overturn or modify its earlier views
of the scope of the writ, even where the statutory language
authorizing judicial action has remained unchanged." 433 U. S., at
81; see also
Kuhlmann, 477 U. S., at 446-447 (explaining
that the Court has both expanded and limited the scope of the
writ);
Brecht v.
Abrahamson, 507 U. S. 619, 633 (1993)
("We have filled the gaps of the habeas corpus statute with respect
to other matters").
320
u. S. C. § 2255, though the language of § 2255 contained no
reference to an "ends of justice" inquiry. 373 U. S., at 12-15.
We firmly established the importance of the equitable inquiry
required by the ends of justice in "a trio of 1986 decisions"
handed down on the same day.
Sawyer, 505 U. S., at 339
(referring to
Kuhlmann v.
Wilson, 477 U. S. 436,
Murray v.
Carrier, 477 U. S. 478, and
Smith v.
Murray, 477 U. S. 527). In
Kuhlmann,
seven Members of this Court squarely rejected the argument that in
light of the 1966 amendments, "federal courts no longer must
consider the 'ends of justice' before dismissing a successive
petition." 477 U. S., at 451 (plurality opinion);
id., at
468-471 (Brennan, J., dissenting);
id., at 476-477 (STEVENS,
J., dissenting); see also
Sawyer, 505 U. S., at 339 (noting
that in
Kuhlmann, "[w]e held that despite the removal of
[the reference to the ends of justice] from 28 U. S. C. § 2244(b)
in 1966, the miscarriage of justice exception would allow
successive claims to be heard"). Thus, while recognizing that
successive petitions are generally precluded from review, Justice
Powell's plurality opinion expressly noted that there are "limited
circumstances under which the interests of the prisoner in
relitigating constitutional claims held meritless on a prior
petition may outweigh the countervailing interests served by
according finality to the prior judgment." 477 U. S., at 452.
Similarly, writing for the Court in
Carrier, JUSTICE
O'CONNOR observed that the Court had adopted the cause and
prejudice standard in part because of its confidence that that
standard would provide adequate protection to "'victims of a
fundamental miscarriage of justice,'" 477 U. S., at 495-496,
quoting
Engle v.
Isaac, 456 U. S. 107, 135
(1982); however, JUSTICE O'CONNOR also noted that the Court has
candidly refused to "pretend that this will always be true,"
Carrier, 477 U. S., at 496. For that reason, "'[i]n
appropriate cases,' the principles of comity and finality that
inform the concepts of cause and prejudice 'must yield to the
imperative of correcting a fund a-
321
mentally unjust incarceration.'"
Id., at 495, quoting
Engle v.
Isaac, 456 U. S., at 135; see also
Smith v.
Murray, 477 U. S., at 537. In subsequent
cases, we have consistently reaffirmed the existence and importance
of the exception for fundamental miscarriages of justice. See,
e. g., Sawyer, 505 U. S., at 339-340;
McCleskey, 499
U. S., at 494-495;
Dugger
To ensure that the fundamental miscarriage of justice exception
would remain "rare" and would only be applied in the "extraordinary
case," while at the same time ensuring that the exception would
extend relief to those who were truly deserving, this Court
explicitly tied the miscarriage of justice exception to the
petitioner's innocence. In
Kuhlmann, for example, Justice
Powell concluded that a prisoner retains an overriding "interest in
obtaining his release from custody if he is innocent of the charge
for which he was incarcerated. That interest does not extend,
however, to prisoners whose guilt is conceded or plain." 477 U. S.,
at 452. Similarly, JUSTICE O'CONNOR wrote in
Carrier 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." 477 U.
S., at 496; see also
Smith v.
Murray, 477 U. S., at
537, quoting
Carrier, 477 U. S., at 496.
The general rule announced in
Kuhlmann, Carrier, and
Smith, and confirmed in this Court's more recent decisions,
rests in part on the fact that habeas corpus petitions that advance
a substantial claim of actual innocence are extremely rare.36 Judge
Friendly's observation a quarter of a
36 Indeed, neither party called our attention to any decision
from a Court of Appeals in which a petitioner had satisfied any
definition of actual innocence. Though some such decisions exist,
see,
e. g., Henderson v.
Sargent, 926 F.2d
706, 713-714
(CA8), reaff'd in relevant part on
rehearing,
939 F.2d
586 (CA8 1991), cert. denied, 502 U. S. 1050 (1992);
Bliss v.
Lockhart,
322
century ago that "the one thing almost never suggested on
collateral attack is that the prisoner was innocent of the crime"
remains largely true today.37 Explicitly tying the miscarriage of
justice exception to innocence thus accommodates both the systemic
interests in finality, comity, and conservation of judicial
resources, and the overriding individual interest in doing justice
in the "extraordinary case,"
Carrier, 477 U. S., at 496.
In addition to linking miscarriages of justice to innocence,
Carrier and
Kuhlmann also expressed the standard of
proof that should govern consideration of those claims. In
Carrier, for example, the Court stated that the petitioner
must show that the constitutional error "probably" resulted in the
conviction of one who was actually innocent. The
Kuhlmann
plurality, though using the term "colorable claim of factual
innocence," elaborated that the petitioner would be required to
establish, by a "'fair probability,'" that "'the trier of the facts
would have entertained a reasonable doubt of his guilt.'" 477 U.
S., at 454, 455, n. 17.
In the years following
Kuhlmann and
Carrier, we
did not expound further on the actual innocence exception. In those
few cases that mentioned the standard, the Court continued to rely
on the formulations set forth in
Kuhlmann and
Carrier. In
McCleskey, for example, while
establishing that cause and prejudice would generally define the
situations in which a federal court might entertain an abusive
petition, the Court recognized an exception for cases in which the
constitutional violation "probably has caused the conviction of one
innocent of the crime." 499 U. S., at 494, citing
Carrier,
477 U. S., at 485.
891 F.2d
1335, 1342
(CA8 1987) (relying on
Carrier's
actual innocence exception as an alternative ground of decision),
independent research confirms that such decisions are rare.
37 Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142, 145 (1970).
323
Then, in
Sawyer, the Court examined the miscarriage of
justice exception as applied to a petitioner who claimed he was
"actually innocent of the death penalty." In that opinion, the
Court struggled to define "actual innocence" in the context of a
petitioner's claim that his death sentence was inappropriate. The
Court concluded that such actual innocence "must focus on those
elements which render a defendant eligible for the death penalty."
505 U. S., at 347. However, in addition to defining what it means
to be "innocent" of the death penalty, the Court departed from
Carrier's use of "probably" and adopted a more exacting
standard of proof to govern these claims: The Court held that a
habeas petitioner "must show by
clear and convincing
evidence that but for a constitutional error, no reasonable juror
would have found the petitioner eligible for the death penalty."
505 U. S., at 336 (emphasis added).38 No attempt was made in
Sawyer to reconcile this stricter standard with
Carrier's use of "probably."
v
In evaluating Schlup's claim of innocence, the Court of Appeals
applied Eighth Circuit precedent holding that
Sawyer, rather
than
Carrier, supplied the proper legal standard. The court
then purported to apply the
Sawyer standard. Schlup argues
that
Sawyer has no application to a petitioner who claims
that he is actually innocent of the crime, and that the Court of
Appeals misapplied
Sawyer in any event. Respondent contends
that the Court of Appeals was correct in both its selection and its
application of the
Sawyer standard. Though the Court of
Appeals seems to have misapplied
Sawyer,39 we do not rest
our decision on that ground because we
38 Even the high standard of proof set forth in
Sawyer
falls short of the
Jackson standard governing habeas review
of claims of insufficiency of the evidence. See
Jackson v.
Virginia, 443
U. S. 307, 324 (1979) ("[N]o rational trier of fact
could have found proof of guilt beyond a reasonable doubt")
(emphasis added). See
infra, at 330.
39 See
infra, at 331.
324
conclude that in a case such as this, the
Sawyer standard
does not apply.
As we have stated, the fundamental miscarriage of justice
exception seeks to balance the societal interests in finality,
comity, and conservation of scarce judicial resources with the
individual interest in justice that arises in the extraordinary
case. We conclude that
Carrier, rather than
Sawyer,
properly strikes that balance when the claimed injustice is that
constitutional error has resulted in the conviction of one who is
actually innocent of the crime.
Claims of actual innocence pose less of a threat to scarce
judicial resources and to principles of finality and comity than do
claims that focus solely on the erroneous imposition of the death
penalty. Though challenges to the propriety of imposing a sentence
of death are routinely asserted in capital cases, experience has
taught us that a substantial claim that constitutional error has
caused the conviction of an innocent person is extremely rare. See
supra, at 321-322. To be credible, such a claim requires
petitioner to support his allegations of constitutional error with
new reliable evidencewhether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence-that
was not presented at trial. Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual
innocence are rarely successful. Even under the pre
Sawyer
regime, "in virtually every case, the allegation of actual
innocence has been summarily rejected."40 The threat to judicial
resources, finality, and comity posed by claims of actual innocence
is thus significantly less than that posed by claims relating only
to sentencing.
Of greater importance, the individual interest in avoiding
injustice is most compelling in the context of actual innocence.
The quintessential miscarriage of justice is the exe-
40 Steiker, Innocence and Federal Habeas, 41 UCLA L. Rev. 303,
377 (1993); see also
id., at 377, n. 370 (collecting
cases).
325
cution of a person who is entirely innocentY Indeed, concern
about the injustice that results from the conviction of an innocent
person has long been at the core of our criminal justice system.
That concern is reflected, for example, in the "fundamental value
determination of our society that it is far worse to convict an
innocent man than to let a guilty man go free."
In re
Winship, 397 U.
S. 358, 372 (1970) (Harlan, J., concurring). See also T.
Starkie, Evidence 756 (1824) ("The maxim of the law is ... that it
is better that ninety-nine ... offenders should escape, than that
one innocent man should be condemned"). See generally Newman,
Beyond "Reasonable Doubt," 68 N. Y. U. L. Rev. 979, 980981
(1993).
The overriding importance of this greater individual interest
merits protection by imposing a somewhat less exacting standard of
proof on a habeas petitioner alleging a fundamental miscarriage of
justice than on one alleging that his sentence is too severe. As
this Court has noted, "a standard of proof represents an attempt 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."
In re
Winship, 397 U. S., at 370 (Harlan, J., concurring); see also
Addington v.
Texas, 441 U. S. 418, 423
(1979). The standard of proof thus reflects "the relative
importance attached to the ultimate decision."
Ibid. Though
the
Sawyer standard was fashioned to reflect the relative
importance of a claim of an erroneous sentence, application of that
standard to petitioners such as Schlup would give insufficient
weight to the correspondingly greater injustice that is implicated
by a claim of actual innocence. The
41 See,
e. g., Lankford v.
Idaho, 500 U. S. 110, 125
(1991);
Clemons v.
Mississippi, 494 U. S. 738, 750, n. 4
(1990);
Booth v.
Maryland, 482 U. S. 496,509, n. 12
(1987);
Solem v.
Helm, 463 U. S. 277, 294
(1983);
Gardner v.
Florida, 430 U. S. 349, 357-358
(1977) (plurality opinion);
Woodson v.
North
Carolina, 428 U.
S. 280, 303-304, 305 (1976) (plurality opinion of Stewart,
Powell, and STEVENS, JJ.).
326
paramount importance of avoiding the injustice of executing one
who is actually innocent thus requires application of the
Carrier standard.42
We recognize, as the State has reminded us, that in
Sawyer the Court applied its new standard not only to the
penalty phase of the case but also to Sawyer's responsibility for
arson, one of the elements of the offense of first-degree murder.43
This fact does not require application of the
Sawyer
standard to a case such as Schlup's. Though formulated as an
element of the offense of first-degree murder, the arson functioned
essentially as a sentence enhancer. That claim, therefore, is
readily distinguishable from a claim, like the one raised by
Schlup, that the petitioner is actually innocent. Fealty to the
doctrine of
stare decisis does not, therefore, preclude
application of the
Carrier standard to the facts of this
case.44
Accordingly, we hold that the
Carrier "probably resulted"
standard rather than the more stringent
Sawyer standard must
govern the miscarriage of justice inquiry when a peti-
42 By our references to
Winship, of course, we do not
suggest that Schlup comes before a habeas court in the same
situation as one who has merely been accused of a crime. Having
been convicted by a jury of a capital offense, Schlup no longer has
the benefit of the presumption of innocence. Cf.
Herrera v.
Collins, 506 U. S., at 399 (O'CONNOR, J., concurring). To
the contrary, Schlup comes before the habeas court with a
strong-and in the vast majority of the cases conclusive-presumption
of guilt. Our reference to
Winship is intended merely to
demonstrate that it is quite consistent with our jurisprudence to
give content through a burden of proof to the understanding that
fundamental injustice would result from the erroneous conviction
and execution of an innocent person.
43 See
Sawyer, 505 U. S., at 342, n. 8, 349-350.
44 Nor do we believe that confining
Sawyer's more
rigorous standard to claims involving eligibility for the sentence
of death is anomalous. Our recognition of the significant
difference between the injustice that results from an erroneous
conviction and the injustice that results from an erroneous
sentence is reflected in our decisions that permit reduced
procedural protections at sentencing. See,
e. g., Williams
v.
New York, 337 U. S. 241 (1949).
327
tioner who has been sentenced to death raises a claim of actual
innocence to avoid a procedural bar to the consideration of the
merits of his constitutional claims.
VI
The
Carrier standard requires the habeas petitioner to
show that "a constitutional violation has probably resulted in the
conviction of one who is actually innocent." 477 U. S., at 496. To
establish the requisite probability, the petitioner must show that
it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence. The petitioner thus
is required to make a stronger showing than that needed to
establish prejudice.45 At the same time, the showing of "more
likely than not" imposes a lower burden of proof than the "clear
and convincing" standard required under
Sawyer. The
Carrier standard thus ensures that petitioner's case is
truly "extraordinary,"
McCleskey, 499 U. S., at 494, while
still providing petitioner a meaningful avenue by which to avoid a
manifest injustice.
Carrier requires a petitioner to show that he is
"actually innocent." As used in
Carrier, actual innocence is
closely related to the definition set forth by this Court in
Sawyer. To satisfy the
Carrier gateway standard, a
petitioner must show that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.
Several observations about this standard are in order.
The
Carrier standard is intended to focus the inquiry on
actual innocence. In assessing the adequacy of petitioner's
showing, therefore, the district court is not bound by the rules of
admissibility that would govern at trial. Instead, the emphasis on
"actual innocence" allows the reviewing tribunal also to consider
the probative force of relevant evi-
45 See
Strickland v.
Washington, 466 U. S. 668, 694
(1984);
United States v.
Bagley, 473 U. S. 667, 682 (1985)
(Blaclrmun, J.);
id., at 685 (White, J., concurring).
328
dence that was either excluded or unavailable at trial. Indeed,
with respect to this aspect of the
Carrier standard, we
believe that Judge Friendly's description of the inquiry is
appropriate: The habeas court must make its determination
concerning the petitioner's innocence "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."46
The consideration in federal habeas proceedings of a broader
array of evidence does not modify the essential meaning of
"innocence." The
Carrier standard reflects the proposition,
firmly established in our legal system, that the line between
innocence and guilt is drawn with reference to a reasonable doubt.
See
In re Winship, 397 U. S. 358 (1970).
Indeed, even in
Sawyer, with its emphasis on eligibility for
the death penalty, the Court did not stray from the understanding
that the eligibility determination must be made with reference to
reasonable doubt. Thus, whether a court is assessing eligibility
for the death penalty under
Sawyer, or is deciding whether a
petitioner has made the requisite showing of innocence under
Carrier, the analysis must incorporate the understanding
that proof beyond a reasonable doubt marks the legal boundary
between guilt and innocence.47
4638 U. Chi. L. Rev., at 160.
47 Actual innocence, of course, does not require innocence in
the broad sense of having led an entirely blameless life. Indeed,
Schlup's situation provides a good illustration. At the time of the
crime at issue in this case, Schlup was incarcerated for an earlier
offense, the sordid details of which he acknowledged in his
testimony at the punishment phase of his trial. Such earlier
criminal activity has no bearing on whether Schlup is actually
innocent of Dade's murder.
As we have explained,
supra, at 313-317, Schlup's claim
of innocence is fundamentally different from the claim advanced in
Herrera. The standard that we apply today, therefore, will
not foreclose the application of factual innocence to the analysis
of such claims.
329
The meaning of actual innocence as formulated by
Sawyer
and
Carrier does not merely require a showing that a
reasonable doubt exists in the light of the new evidence, but
rather that no reasonable juror would have found the defendant
guilty. It is not the district court's independent judgment as to
whether reasonable doubt exists that the standard addresses; rather
the standard requires the district court to make a probabilistic
determination about what reasonable, properly instructed jurors
would do. Thus, a petitioner does not meet the threshold
requirement unless he persuades the district court that, in light
of the new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.
We note finally that the
Carrier standard requires a
petitioner to show that it is more likely than not that "no
reasonable juror" would have convicted him. The word "reasonable"
in that formulation is not without meaning. It must be presumed
that a reasonable juror would consider fairly all of the evidence
presented. It must also be presumed that such a juror would
conscientiously obey the instructions of the trial court requiring
proof beyond a reasonable doubt.48
48THE CHIEF JUSTICE suggests that the
Carrier standard is
"a classic mixing of apples and oranges."
Post, at 339. That
standard, however, is no more a mixing of apples and oranges than
is the standard adopted by the Court in
Sawyer. See
Sawyer, 505 U. S., at 336 (requiring that petitioner 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"). Though it is true that" '[m]ore likely
than not'" is a "quintessential charge to a finder offact,"
post, at 339, that is equally true of the "clear and
convincing evidence" component of the
Sawyer formulation.
There is thus no reason to believe that the
Carrier standard
is any more likely than the
Sawyer standard to be "a source
of confusion."
Post, at 339.
Nor do we accept THE CHIEF JUSTICE'S description of the
Carrier standard as a "hybrid."
Post, at 339. Finders
of fact are often called upon to make predictions about the likely
actions of hypothetical "reasonable" actors. Thus, the application
of "more likely than not" to the habeas court's assessment of the
actions of reasonable jurors is neither illogical nor unusual.
330
Though the
Carrier standard requires a substantial
showing, it is by no means equivalent to the standard of
Jackson v.
Virginia, 443 U. S. 307 (1979),
that governs review of claims of insufficient evidence. The
Jackson standard, which focuses on whether any rational
juror could have convicted, looks to whether there is sufficient
evidence which, if credited, could support the conviction. The
Jackson standard thus differs in at least two important ways
from the
Carrier standard. First, under
Jackson, the
assessment of the credibility of witnesses is generally beyond the
scope of review. In contrast, under the gateway standard we
describe today, the newly presented evidence may indeed call into
question the credibility of the witnesses presented at trial. In
such a case, the habeas court may have to make some credibility
assessments. Second, and more fundamentally, the focus of the
inquiry is different under
Jackson than under
Carrier. Under
Jackson, the use of the word "could"
focuses the inquiry on the power of the trier of fact to reach its
conclusion. Under
Carrier, the use of the word "would"
focuses the inquiry on the likely behavior of the trier of
fact.
Indeed, our adoption of the phrase "more likely than not"
reflects this distinction. Under
Jackson, the question
whether the trier of fact has power to make a finding of guilt
requires a binary response: Either the trier of fact has power as a
matter of law or it does not. Under
Carrier, in contrast,
the habeas court must consider what reasonable triers of fact are
likely to do. Under this probabilistic inquiry, it makes sense to
have a probabilistic standard such as "more likely than not."49
Thus, though under
Jackson the mere existence of sufficient
evidence to convict would be determinative of petitioner's claim,
that is not true under
Carrier.
49 The "clear and convincing" standard adopted in
Sawyer
reflects this same understanding of the relevant inquiry.
331
We believe that the Eighth Circuit's erroneous application of
the
Sawyer standard below illustrates this difference. In
determining that Schlup had failed to satisfy the
Sawyer
standard, the majority noted that "two prison officials, who were
eyewitnesses to the crime, positively identified Mr. Schlup as one
of the three perpetrators of the murder. This evidence was clearly
admissible and stands unrefuted except to the extent that Mr.
Schlup now questions its credibility." 11 F. 3d, at 741.
The majority then continued:
"[E]ven if we disregard the source of the new evidence, the
eleventh-hour nature of the information, and a presentation coming
almost six years after the trial; it is simply not possible to say
that the appellant has shown by clear and convincing evidence that
but for a constitutional error no reasonable jury would have found
him guilty." Ibid.
However, Schlup's evidence includes the sworn statements of
several eyewitnesses that Schlup was not involved in the crime.
Moreover, Schlup has presented statements from Green and Faherty
that cast doubt on whether Schlup could have participated in the
murder and still arrived at the dining room 65 seconds before the
distress call was received. Those new statements may, of course, be
unreliable. But if they are true-as the Court of Appeals assumed
for the purpose of applying its understanding of the
Sawyer
standardit surely cannot be said that a juror, conscientiously
following the judge's instructions requiring proof beyond a
reasonable doubt, would vote to convict. Under a proper application
of either
Sawyer or
Carrier, petitioner's showing of
innocence is not insufficient solely because the trial record
contained sufficient evidence to support the jury's verdict.
In this case, the application of the
Carrier standard
arises in the context of a request for an evidentiary hearing. In
applying the
Carrier standard to such a request, the
District
332
Court must assess the probative force of the newly presented
evidence in connection with the evidence of guilt adduced at trial.
Obviously, the court is not required to test the new evidence by a
standard appropriate for deciding a motion for summary judgment.
Cf.
Agosto v.
INS, 436 U. S. 748, 756 (1978)
("[A] district court generally cannot grant summary judgment based
on its assessment of the credibility of the evidence presented");
Anderson v.
Liberty Lobby, Inc., 477 U. S. 242, 249 (1986)
("[A]t the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial").
Instead, the court may consider how the timing of the submission
and the likely credibility of the affiants bear on the probable
reliability of that evidence.
Because both the Court of Appeals and the District Court
evaluated the record under an improper standard, further
proceedings are necessary. The fact-intensive nature of the
inquiry, together with the District Court's ability to take
testimony from the few key witnesses if it deems that course
advisable, convinces us that the most expeditious procedure is to
order that the decision of the Court of Appeals be vacated and that
the case be remanded to the Court of Appeals with instructions to
remand to the District Court for further proceedings consistent
with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring.
I write to explain, in light of the dissenting opinions, what I
understand the Court to decide and what it does not.
The Court holds that, in order to have an abusive or successive
habeas claim heard on the merits, a petitioner who cannot
demonstrate cause and prejudice "must show that it is more likely
than not that no reasonable juror would have convicted him" in
light of newly discovered evidence of innocence.
Ante, at
327. This standard is
333
higher than that required for prejudice, which requires only "a
reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt,"
Strickland v.
Washington, 466 U. S. 668, 695
(1984). Instead, a petitioner does not pass through the gateway
erected by
Murray v.
Carrier, 477 U. S. 478 (1986), if
the district court believes it more likely than not that there is
any juror who, acting reasonably, would have found the petitioner
guilty beyond a reasonable doubt. And the Court's standard, which
focuses the inquiry on the likely behavior of jurors, is
substantively different from the rationality standard of
Jackson v.
Virginia, 443 U. S. 307 (1979).
Jackson, which emphasizes the authority of the factfinder to
make conclusions from the evidence, establishes a standard of
review for the sufficiency of record evidence-a standard that would
be ill suited as a burden of proof, see
Concrete Pipe &
Products of Cal., Inc. v.
Construction Laborers Pension
Trust for Southern Cal., 508 U. S. 602, 624-626
(1993). The Court today does not sow confusion in the law. Rather,
it properly balances the dictates of justice with the need to
ensure that the actual innocence exception remains only a "'safety
valve' for the 'extraordinary case,'"
Harris v.
Reed,
489 U. S. 255,
271 (1989) (O'CONNOR, J., concurring).
Moreover, the Court does not, and need not, decide whether the
fundamental miscarriage of justice exception is a discretionary
remedy. It is a paradigmatic abuse of discretion for a court to
base its judgment on an erroneous view of the law. See
Cooter &
Gell v.
Hartmarx Corp., 496 U. S. 384, 405
(1990). Having decided that the district court committed legal
error, and thus abused its discretion, by relying on
Sawyer
v.
Whitley, 505 U. S. 333 (1992),
instead of
Murray v.
Carrier, supra, the Court need
not decide the question-neither argued by the parties nor passed
upon by the Court of Appeals-whether abuse of discretion is the
proper standard of review. In reversing the judgment of the
Court
334
of Appeals, therefore, the Court does not disturb the
traditional discretion of district courts in this area, nor does it
speak to the standard of appellate review for such judgments.
With these observations, I join the Court's opinion.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE KENNEDY and JUSTICE
THOMAS join, dissenting.
The Court decides that the threshold standard for a showing of
"actual innocence" in a successive or abusive habeas petition is
that set forth in
Murray v.
Carrier, 477 U. S. 478 (1986),
rather than that set forth in
Sawyer v.
Whitley, 505
U. S. 333 (1992). For reasons which I later set out, I believe the
Sawyer standard should be applied to claims of guilt or
innocence as well as to challenges to a petitioner's sentence. But,
more importantly, I believe the Court's exegesis of the
Carrier standard both waters down the standard suggested in
that case, and will inevitably create confusion in the lower
courts.
On February 3, 1984, three white inmates attacked and killed a
black inmate named Arthur Dade. At trial, testimony by Sergeant
Roger Flowers and Officer John Maylee indicated that inmate Rodnie
Stewart threw a container of steaming liquid into Dade's face,
petitioner jumped on Dade's back rendering him defenseless, and
inmate Robert O'Neal proceeded to stab Dade to death. Petitioner's
trial counsel attempted to discredit both eyewitness
identifications. As to Sergeant Flowers, counsel argued that
Flowers had brought a visitor into petitioner's cell less than an
hour before the stabbing, and, therefore, Flowers had Schlup "on
the brain." Trial Tr. 493-494. Trial counsel attempted to discredit
Officer Maylee's identification by arguing that Maylee was too far
from the scene to properly view the incident. Through discovery,
petitioner's trial counsel uncovered a videotape in which
petitioner is the first inmate to enter the cafeteria. One minute
and five seconds after petitioner
335
enters the cafeteria, a group of guards run out in apparent
response to a distress call. Twenty-six seconds later, O'Neal is
seen entering the cafeteria. Petitioner's trial counsel argued that
the videotape established that petitioner could not have committed
the murder because there was insufficient time for him to commit
the crime and arrive at the cafeteria one minute and five seconds
prior to the distress call. Petitioner's trial counsel also
presented two alibi witnesses who testified that petitioner had
walked in front of them to the cafeteria without incident.
The jury considered this conflicting evidence, determined that
petitioner's story was not credible, and convicted him of capital
murder. During the sentencing component of trial, the prosecution
presented evidence that there were two statutory aggravating
factors that warranted imposition of the death penalty: petitioner
committed the murder in a place of lawful confinement, and
petitioner had a substantial history of serious assaultive criminal
convictions. As to the second aggravating factor, the prosecution
presented testimony that for two weeks, petitioner had brutally
beaten, tortured, and sodomized a cellmate in a county jail. The
prosecution also presented testimony that petitioner was convicted
of aggravated assault for slitting a cellmate's throat. On
crossexamination, petitioner presented his version of the prior
incidents. The jury considered this evidence, rejected petitioner's
story, and returned a sentence of death.
On appeal, the Missouri Supreme Court affirmed petitioner's
conviction and death sentence. Petitioner then filed state
collateral proceedings claiming, among other things, that his trial
counsel was ineffective for failing to present additional alibi
witnesses and for failing to investigate fully the circumstances of
the murder. The Missouri Circuit Court determined that petitioner's
counsel provided effective assistance of counsel. The Missouri
Supreme Court affirmed the denial of postconviction relief.
336
Petitioner then filed his first federal habeas petition claiming
that his trial counsel was ineffective at both the guilt and
penalty phases of trial. Though he previously refused to identify
Randy Jordan as the alleged third participant in the murder,
petitioner faulted his trial counsel for failing to call Randy
Jordan as a witness.1 The District Court denied relief. A panel of
the Court of Appeals for the Eighth Circuit concluded on the merits
that petitioner's trial counsel had not been ineffective at the
guilt or penalty phases of trial.2 Petitioner sought review of the
panel's decision by the en banc court. No Eighth Circuit judge
questioned the panel's conclusion that petitioner's trial counsel
provided effective assistance of counsel during the guilt phase of
trial.
Petitioner filed a second federal habeas petition, again
claiming that his trial counsel was ineffective at both the guilt
and penalty phases of trial. Petitioner supplemented this filing
with an affidavit from a former inmate, John Green. Green's
affidavit related to the timing of the distress call. In his most
recent statement, Green swore that Sergeant Flowers "was on his way
to break up the fight when he told me to call base. I immediately
went into the office, picked up the phone, and called base." App.
122.3 Under
1 The Missouri Circuit Court found that "[d]efense counsel did
not interview Randy Jordan, whom Petitioner now alleges was the
third participant in the murder with which the Petitioner was
charged, because the Petitioner while maintaining someone else
committed the acts attributed to him, refused to give the name of
that person to his counsel."
Schlup v.
Delo,
Respondent's Exhibit J, pp. 49-50.
2 Senior Circuit Judge Heaney took issue only with the
majority's conclusion that petitioner's trial counsel had rendered
effective assistance at the penalty phase of trial. Cf.
Schlup v.
Armontrout, 941 F.2d
631, 642 (1991) ("I disagree with the court's conclusion that
Schlup was not prejudiced by his counsel's ineffectiveness during
the penalty phase") (dissenting opinion).
3 On the day of the incident Green told prison investigators
that he had not observed the murder. At Stewart's trial, while
under oath, Green testified that he saw no actual fight take place
and made no mention of his call to base. App. 140. Green now also
swears that he "called base ... within seconds of Dade hitting the
ground."
Id., at 123.
337
this timing sequence, petitioner submitted that he "ha[d]
produced proof, which could not have been fabricated, that the call
to which the guards [in the cafeteria] responded came seconds after
the stabbing."
Id., at 100-101. Further, petitioner claimed
that "Green's testimony thus makes it impossible, under any view of
the evidence, for Schlup to have participated in Dade's murder: for
thirty seconds to a minute before the distress call, the videotape
plainly shows Lloyd Schlup in the prison dining room, quietly
getting his lunch." Brief for Petitioner 12. Thus, petitioner's
claim of "actual innocence" depends, in part, on the assumption
that the officers in the cafeteria responded to Green's distress
call "within seconds" of Dade hitting the ground.4
The District Court denied petitioner's second habeas petition
without conducting an evidentiary hearing. While on appeal,
petitioner supplemented his habeas petition with an additional
affidavit from Robert Faherty, a former prison guard who previously
testified at petitioner's trial. A divided panel of the Eighth
Circuit applied the
Sawyer standard to petitioner's gateway
claim of "actual innocence" and determined that petitioner failed
to meet that standard. The Eighth Circuit denied rehearing en bane.
We granted certiorari to determine when, absent a showing of
cause
4 One problem with this theory is that O'Neal, an undisputed
participant in the murder, entered the cafeteria 26 seconds after
the guards responded to the distress call. As respondent explained
at oral argument: "[I]f you believe that [Green] radioed in
immediately upon the time of the body falling ... then you look at
the videotape, and there is only 26 seconds between the time that
that call was supposedly made by Green and the time that O'Neal
comes into the cafeteria downstairs, and all of the evidence in
this case shows it's impossible for O'Neal, the admitted murderer
... to have run down, ... broken a window, thrown the knife out the
window, come back, washed his hands ... and go[ne] down to the
cafeteria,
if you hold Green's present statement as controlling,
the murder never occurred." Tr. of Oral Arg. 30-31 (emphasis
added). Thus, as the Court acknowledges,
ante, at 308, n.
17, there was a delay between the time of the murder and the time
that the guards in the cafeteria responded to the distress
call.
338
and prejudice, a district court may consider the merits of an
abusive or successive habeas petition. 511 U. S. 1003 (1994).
In
Kuhlmann v.
Wilson, 477 U. S. 436 (1986), the
Court examined when a federal court could entertain a successive
habeas petition. A plurality of the Court determined that the
"'ends of justice'" required a district court to entertain the
merits of an otherwise defaulted petition where the prisoner
supplemented his constitutional claim with a showing of factual
innocence.
Id., at 454. After citing Judge Friendly's
definition of factual innocence, the plurality summarily determined
that the District Court should not have entertained Wilson's
petition because the evidence of guilt in his case had been"
'nearly overwhelming.'"
Id., at 455.
In
Carrier, the Court determined that a federal court
could not review a procedurally defaulted habeas petition unless
the petitioner demonstrated both cause for the default as well as
prejudice resulting from the constitutional error. 477 U. S., at
492.5 The
Carrier Court, however, left open the possibility
that in a truly extraordinary case, a federal habeas court might
excuse a failure to establish cause and prejudice where" 'a
constitutional violation has probably resulted in the conviction of
one who is
actually innocent.'" Ante, at 327, quoting 477 U.
S., at 496 (emphasis added).
In
Sawyer, we described in some detail the showing of
actual innocence required when a habeas petitioner brings an
otherwise abusive, successive, or procedurally defaulted claim
challenging the imposition of his death sentence, rather than his
guilt of the crime. 505 U. S., at 339-347. There the Court
emphasized that innocence of the death penalty,
5 The Court explicitly rejected the contention that "cause need
not be shown if actual prejudice is shown," even where the
constitutional claims "call[ed] into question the reliability of an
adjudication of
legal guilt." 477 U. S., at 495 (emphasis
added); see also
Engle v.
Isaac, 456 U. S. 107, 129
(1982).
339
like its "'actual innocence'" counterpart, is "a very narrow
exception," and that in order to be "workable it must be subject to
determination by relatively objective standards."
Id., at
341. Thus, we concluded that a habeas petitioner who challenged his
sentence in an otherwise defaulted petition must show "by clear and
convincing evidence that but for constitutional error, no
reasonable juror would [have found the petitioner] eligible for the
death penalty."
Id., at 348.
We have never until today had to similarly flesh out the
standard of "actual innocence" in the context of a habeas
petitioner claiming innocence of the crime. Thus, I agree that the
question of what threshold standard should govern is an open one.
As I have said earlier, I disagree with the Court's conclusion that
Carrier, and not
Sawyer, provides the proper
standard. But far more troubling than the choice of
Carrier
over
Sawyer is the watered down and confusing version of
Carrier which is served up by the Court.
As the Court notes, to satisfy
Carrier a habeas
petitioner must demonstrate that" 'a constitutional violation has
probably resulted in the conviction of one who is actually
innocent.'"
Ante, at 327 (quoting
Carrier, supra, at
496). The Court informs us that a showing of "actual innocence"
requires a habeas petitioner to "show that it is more likely than
not that no reasonable juror would have convicted him in the light
of the new evidence."
Ante, at 327. But this is a classic
mixing of apples and oranges. "More likely than not" is a
quintessential charge to a finder of fact, while "no reasonable
juror would have convicted him in the light of the new evidence" is
an equally quintessential conclusion of law similar to the standard
that courts constantly employ in deciding motions for judgment of
acquittal in criminal cases. The hybrid which the Court serves up
is bound to be a source of confusion. Because new evidence not
presented at trial will almost always be involved in these claims
of actual innocence, the legal standard for judgment of acquittal
cannot
340
be bodily transposed for the determination of "actual
innocence," but the sensible course would be to modify that
familiar standard, see
infra, at 341-342, rather than to
create a confusing hybrid.
In the course of elaborating the
Carrier standard, the
Court takes pains to point out that it differs from the standard
enunciated in
Jackson v.
Virginia, 443 U. S. 307 (1979), for
review of the sufficiency of the evidence to meet the
constitutional standard of proof beyond a reasonable doubt. Under
Jackson, "the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Id., at
319. This standard requires a solely retrospective analysis of the
evidence considered by the jury and reflects a healthy respect for
the trier of fact's "responsibility ... to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts."
Ibid.
The Court fails to acknowledge expressly the similarities
between the standard it has adopted and the
Jackson
standard. A habeas court reviewing a claim of actual innocence does
not write on a clean slate. Cf.
Barefoot v.
Estelle,
463 U. S. 880, 887 (1983) ("Federal courts are not forums in
which to relitigate state trials");
Herrera v.
Collins, 506
U. S. 390, 416 (1993) ("[I]n state criminal proceedings the
trial is the paramount event for determining the guilt or innocence
of the defendant");
Wainwright v.
Sykes, 433 U. S. 72, 90 (1977)
("Society's resources have been concentrated at [the state trial]
in order to decide, within the limits of human fallibility, the
question of guilt or innocence of one of its citizens"). Therefore,
as the Court acknowledges, a petitioner making a claim of actual
innocence under
Carrier falls short of satisfying his burden
if the reviewing court determines that
any juror reasonably
would have found petitioner guilty of the crime. See
ante,
at 329; cf.
Jackson, supra, at 318-319.
341
The situation presented by a claim of actual innocence in a
federal habeas petition is obviously different from that presented
in
Jackson because the habeas court analyzing an "actual
innocence" claim is faced with a body of evidence that has been
supplemented since the original trial. The reviewing court must
somehow predict the effect that this new evidence would have had on
the deliberations of reasonable jurors. It must necessarily weigh
this new evidence in some manner, and may need to make credibility
determinations as to witnesses who did not appear before the
original jury. This new evidence, however, is not a license for the
reviewing court to disregard the presumptively proper determination
by the original trier of fact.
I think the standard enunciated in
Jackson, properly
modified because of the different body of evidence that must be
considered, faithfully reflects the language used in
Carrier. The habeas judge should initially consider the
motion on the basis of the written submissions made by the parties.
As the Court suggests, habeas courts will be able to resolve the
great majority of "actual innocence" claims routinely without any
evidentiary hearing. See
ante, at 324. This fact is
important because, as we noted in
Sawyer: "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." 505 U. S., at 341
(footnote omitted).
But in the highly unusual case where the district court believes
on the basis of written submissions that the necessary showing of
"actual innocence" may be made out, it should conduct a limited
evidentiary hearing at which the affiants whose testimony the court
believes to be crucial to the showing of actual innocence are
present and may be cross-examined as to veracity, reliability, and
all of the other
342
elements that affect the weight to be given the testimony of a
witness. After such a hearing, the district court would be in as
good a position as possible to make the required determination as
to the showing of actual innocence.
The present state of our habeas jurisprudence is less than ideal
in its complexity, but today's decision needlessly adds to that
complexity. I believe that by adopting the
Sawyer standard
both for attacks on the sentence and on the judgment of conviction,
we would take a step in the direction of simplifying this
jurisprudence. See
Keeney v.
TamayoReyes, 504 U. S. 1, 10 (1992)
(noting the importance of uniformity in the law of habeas corpus).
The
Sawyer standard strikes the proper balance among the
State's interest in finality,
McCleskey v.
Zant,
499 U. S. 467,
491-492 (1991), the federal courts' respect for principles of
federalism, see,
e. g., Teague v.
Lane,
489 U. S. 288,
309 (1989) (plurality opinion), and "the ultimate equity on the
prisoner's side-a sufficient showing of actual innocence,"
Withrow v.
Williams, 507 U. S. 680, 700 (1993)
(O'CONNOR, J., concurring in part and dissenting in part). The
Court of Appeals fully analyzed petitioner's new evidence and
determined that petitioner fell way short of "'showing by clear and
convincing evidence [that] no reasonable juror would find him
[guilty of murder].'"
11 F.3d
738, 743 (CA8 1993) (quoting
Sawyer, supra, at 348). I
agree and therefore would affirm.
But if we are to adopt the
Carrier standard, it should
not be the confusing exegesis of that standard contained in the
Court's opinion. It should be based on a modified version of
Jackson v.
Virginia, with a clearly defined area in
which the district court may exercise its discretion to hold an
evidentiary hearing.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
A federal statute entitled "Finality of Determination" -to be
found at § 2244 of Title 28 of the United States Code-
343
specifically addresses the problem of second and subsequent
petitions for the writ of habeas corpus. The reader of today's
opinion will be unencumbered with knowledge of this law, since it
is not there discussed or quoted, and indeed is only cited
en
passant. See
ante, at 318, 320. Rather than asking what
the statute says, or even what we have said the statute says, the
Court asks only what is the fairest standard to apply, and answers
that question by looking to the various semiconsistent standards
articulated in our most recent decisions-minutely parsing phrases,
and seeking shades of meaning in the interstices of sentences and
words, as though a discursive judicial opinion were a statute. I
would proceed differently. Within the very broad limits set by the
Suspension Clause, U. S. Const., Art. I, § 9, cl. 2, the federal
writ of habeas corpus is governed by statute. Section 2244 controls
this case; the disposition it announces is plain enough, and our
decisions contain nothing that would justify departure from that
plain meaning.
Section 2244(b) provides:
"When after an evidentiary hearing on the merits of a material
factual issue, or after a hearing on the merits of an issue of law,
a person in custody pursuant to the judgment of a State court has
been denied by a court of the United States or a justice or judge
of the United States release from custody or other remedy on an
application for a writ of habeas corpus, a subsequent application
for a writ of habeas corpus in behalf of such person need not be
entertained by a court of the United States or a justice or judge
of the United States unless the application alleges and is
predicated on a factual or other ground not adjudicated on the
hearing of the earlier application for the writ, and unless the
court, justice, or judge is satisfied that the applicant has not on
the earlier application deliberately withheld the newly asserted
ground or otherwise abused the writ."
344
A long sentence, but not a difficult one. A federal district
court that receives a second or subsequent petition for the writ of
habeas corpus, when a prior petition has been denied on the merits,
"need not ... entertai[n]" (i.
e., may dismiss) the petition
unless it is neither (to use our shorthand terminology) successive
nor abusive. See also Habeas Corpus Rule 9(b) ("A second or
successive petition may be dismissed if the judge finds that it
fails to allege new or different grounds for relief ... "). Today,
however, the Court obliquely but unmistakably pronounces that a
successive or abusive petition
must be entertained and may
not be dismissed so long as the petitioner makes a
sufficiently persuasive showing that a "fundamental miscarriage of
justice" has occurred.
Ante, at 316 ("[I]f a petitioner such
as Schlup presents [adequate] evidence of innocence ... the
petitioner should be allowed to pass through the gateway and argue
the merits");
ante, at 319-321.1 That conclusion flatly
contradicts the statute, and is not required by our precedent.
Our earliest cases, from an era before Congress legislated rules
to govern the finality of habeas adjudication, held that successive
or abusive petitions were "to be disposed of in the exercise of a
sound judicial discretion guided and controlled by a consideration
of whatever has a rational bearing on the propriety of the
discharge sought," and that when weighing those considerations the
district court could give "controlling weight" to "a prior refusal
to discharge on a like application."
Salinger v.
Loisel, 265 U.
S. 224, 231 (1924) (successive peti-
1 The claim that "the Court does not, and need not, decide
whether the fundamental miscarriage of justice exception is a
discretionary remedy,"
ante, at 333 (O'CONNOR, J.,
concurring), is not in my view an accurate description of what the
Court's opinion says. Of course the concurrence's merely making the
claim causes it to be an accurate description of what the Court
today
holds, since the narrower ground taken by one of the
Justices comprising a five-Justice majority becomes the law.
Marks v.
United States, 430 U. S. 188, 193
(1977).
345
tion); see also
Wong Doo v.
United States,
265 U. S. 239,
240241 (1924) (abusive petition). In
Salinger the Court
particularly noted: "Here the prior refusal to discharge [the
prisoner] was by a court of coordinate jurisdiction and was
affirmed in a considered opinion by a Circuit Court of Appeals. Had
the District Court disposed of the later applications on that
ground, its discretion would have been well exercised and we should
sustain its action without saying more." 265 U. S., at 232. Section
2244 is no more and no less than a codification of this approach.
It is one of the disheartening ironies of today's decision that the
Court not merely disregards a statute, but in doing so denies
district judges the very discretion that the Court itself freely
entrusted to them before Congress spoke.
In 1948 Congress for the first time addressed the problem of
repetitive petitions by enacting the predecessor of the current §
2244, which provided as follows:
"No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the
detention of a person pursuant to a judgment of a court of the
United States, or of any State, if it appears that the legality of
such detention has been determined by a judge or court of the
United States on a prior application for a writ of habeas corpus
and the petition presents no new ground not theretofore presented
and determined, and the judge or court is satisfied that the
ends of justice will not be served by such inquiry." 28 U. S.
C. § 2244 (1964 ed.) (emphasis added).
This provision was construed in
Sanders v.
United
States, 373 U. S.
1 (1963), and (with unimpeachable logic) was held to mean that
"[c]ontrolling weight may be given to denial of a prior application
for federal habeas corpus [under 28 U. S. C. § 2254] only if (1)
the same ground presented in the subsequent application was
determined adversely to the applicant on the prior application, (2)
the prior determination was on
346
the merits, and (3) the ends of justice would not be served by
reaching the merits of the subsequent application."
Id., at
15. Thus, there appeared for the first time in our decisions the
notion that a habeas court has
"the duty" to reach the
merits of a subsequent petition "if the ends of justice demand,"
id., at 18-19-and it appeared for the perfectly good reason
that the statute, as then written, imposed such a duty. And even as
to that duty the
Sanders Court added a "final qualification"
that the Court today would do well to remember:
"The principles governing ... denial of a hearing on a
successive application are addressed to the sound discretion of the
federal trial judges. Theirs is the major responsibility for the
just and sound administration of the federal collateral remedies,
and theirs must be the judgment as to whether a second or
successive application shall be denied without consideration of the
merits." Id., at 18.
Three years after
Sanders, however, Congress amended §
2244 to establish different finality rules for federal prisoner
petitions (filed under § 2255) and state prisoner petitions (filed
under § 2254). Section 2244(a), which addresses petitions by
federal prisoners, retains the "ends of justice" proviso from the
old statute; but § 2244(b) omits it, thus restricting the district
courts'
obligation to entertain petitions by state prisoners
to cases where the petition is neither successive nor abusive. One
might have expected that this notso-subtle change in the statute
would change our interpretation of it, and that we would modify
Sanders by holding that a district court could exercise its
discretion to give controlling weight to the prior denial-which was
of course precisely what
Salinger envisioned.
Yet when the new version of § 2244(b) was first construed, in
Kuhlmann v.
Wilson, 477 U. S. 436 (1986), a
plurality of the Court announced that it would "continue to rely on
the
347
reference in
Sanders to the 'ends of justice,'" 477 U.
S., at 451, and concluded that "the '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."
Id., at 454. That conclusion
contains two complementary propositions. The first is that a habeas
court may
not reach the merits of a barred claim
unless actual innocence is shown; this was the actual
judgment of the opinion (one cannot say the holding, since the
opinion was a mere plurality). See
id., at 455 (stating that
the District Court and Court of Appeals should have dismissed the
successive petition because the petitioner's claim of innocence was
meritless). The second is that a habeas court
must hear a
claim of actual innocence and reach the merits of the petition if
the claim is sufficiently persuasive; this was the purest dictum.
It is the Court's prerogative to adopt that dictum today, but to
adopt it without analysis, as though it were binding precedent,
will not do. The
Kuhlmann plurality opinion lacks formal
status as authority, and, as discussed below, no holding of this
Court binds us to it. A decision to follow it must be justified by
reason, not simply asserted by will.
And if reasons are to be given, justification of the
Kuhlmann opinion will be found difficult indeed. The
plurality's central theory is that "the permissive language of §
2244(b) gives federal courts discretion to entertain successive
petitions under some circumstances," so that "[u]nless [the] 'rare
instances' [in which successive petitions will be entertained] are
to be identified by whim or caprice, district judges must be given
guidance for determining when to exercise the limited discretion
granted them by § 2244(b)." See 477 U. S., at 451. What the
plurality then proceeds to do, however, is not to "guide" the
discretion, but to eliminate it entirely, dividing the entire
universe of successive and abusive petitions into those that
must not be entertained (where there is no showing of
innocence) and those that
must be entertained (where
348
there is such a showing). This converts a statute redolent of
permissiveness
("need not entertain") into a rigid
command.2
The
Kuhlmann plurality's concern about caprice is metas
it is met for all decisions committed by law to the discretion of
lower courts-by applying traditional "abuse-ofdiscretion"
standards. A judge who dismisses a successive petition because he
misconceives some question of law, because he detests the
petitioner's religion, or because he would rather play golf, may be
reversed. A judge who dismisses a successive petition because it is
the petitioner's twenty-second, rather than his second, because its
"only purpose is to vex, harass, or delay,"
Sanders, supra,
at 18, or because the constitutional claims can be seen to be
frivolous on the face of the papers-for any of the numerous
considerations that have "a
rational bearing on the
propriety of the discharge sought,"
Salinger, 265 U. S., at
231 (emphasis ad de d)-may not be commanded to reach the merits
because "the ends of justice" require. Here as elsewhere in the
law, to say that a district judge may not abuse his discretion is
merely to say that the action in question (dismissing a successive
petition) may not be done without considering relevant factors and
giving a "justifying reason,"
Foman v.
Davis,
371 U. S. 178,
182 (1962). See also
American Dredging Co. v.
Miller,
510 U. S. 443,
455 (1994). It is a failure of logic, and an arrogation of
authority, to "guide" that discretion by holding that what Congress
authorized the district court to do may not be done at all.
The Court's assumption that the requirement imposed by the
Kuhlmann plurality should be taken as law can find no
support in our subsequent decisions. To be sure, some cases restate
the supposed duty in the course of historical surveys of the area.
See,
e. g., McCleskey v.
Zant, 499 U. S.
2 The present case does not, of course, present the question
whether the
Kuhlmann plurality was wrong to identify a
category of petitions that
must not be entertained-a
disposition that is at least compatible with the text of §
2244(b).
349
467, 495 (1991)
("Kuhlmann ... required federal courts to
entertain successive petitions when a petitioner supplements a
constitutional claim with a 'colorable showing of factual
innocence' "). But if we are to lavish upon the verbiage of our
opinions the detailed attention more appropriately reserved for the
statute itself, more of the cases (and some of the
same
cases) have described the miscarriage-ofjustice doctrine as a rule
of permission rather than a rule of obligation. See,
e. g.,
Sawyer v.
Whitley, 505 U. S. 333, 339
(1992) ("[Kuhlmann held that] the miscarriage of justice
exception would
allow successive claims to be heard");
McCleskey, 499 U. S., at 494 ("Federal courts retain the
authority to issue the writ [in cases of fundamental
miscarriage of justice]");
id., at 494-495 ("If petitioner
cannot show cause, the failure to raise the claim in an earlier
petition
may nonetheless be excused if he or she can show
that a fundamental miscarriage of justice would result from a
failure to entertain the claim");
Murray v.
Carrier,
477 U. S. 478,
496 (1986) ("[W]here 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") (emphasis added
in all quotations).
Of course the latter cases provide as much or as little
authority for the right reading of the statute as the former
provide for the wrong reading. The truth is that there is simply
nothing in this scattering of phrases, this handful of silences and
assumptions, by which even the conscience most scrupulous in
matters of
stare decisis could count itself bound either
way; for in no case after
Kuhlmann has the question whether
§ 2244(b) creates an
obligation to entertain successive or
abusive petitions been necessary to the decision. In both
Sawyer and
McCleskey the Court affirmed the judgments
of lower courts that had dismissed the petition. See
Sawyer,
supra, at 338;
McCleskey, supra, at 503. Those decisions
could not, and did not, announce
as a
350
holding that refusal to entertain a petition can be
reversible error.
Rather than advancing a different reading of the statute, the
Court gives in essence only one response to all of this: that the
law of federal habeas corpus is a product of "the interplay between
statutory language and judicially managed equitable
considerations."
Ante, at 319, n. 35. This sort of vague
talk might mean one of two things, the first inadequate, the second
unconstitutional. It might mean that the habeas corpus statute is
riddled with gaps and ambiguities that we have traditionally filled
or clarified by a process of statutory interpretation that shades
easily into a sort of federal common law. See,
e. g., Brecht
v.
Abrahamson, 507 U. S. 619, 633 (1993). That is true
enough. There assuredly are, however, many legal questions on which
the habeas corpus statute is neither silent nor ambiguous; and
unless the question in this case is one on which the statute
is silent or ambiguous (in which event the Court should
explain why that is so), the response is irrelevant. On the other
hand, the Court's response might mean something altogether
different and more alarming: that even where the habeas statute
does speak clearly to the question at hand, it is but one
"consideratio[n],"
ante, at 319, n. 35, relevant to
resolution of that question. Given that federal courts have no
inherent power to issue the writ,
Ex parte Bollman, 4 Cranch
75, 94-95 (1807), that response would be unconstitutional. See U.
S. Const., Art. VI, cl. 2.
There is thus no route of escape from the Court's duty to
confront the statute today. I would say, as the statute does, that
habeas courts need not entertain successive or abusive petitions.
The courts whose decisions we review declined to entertain the
petition, and I find no abuse of discretion in the record. (I agree
with THE CHIEF JUSTICE that they were correct to use
Sawyer
v.
Whitley, supra, as the legal standard for determining
claims of actual innocence. See
351
ante, at 334.) 3 Therefore, "we should sustain [their]
action without saying more."
Salinger, 265 U. S., at
232.
For these reasons, I respectfully dissent.
3 Even if they were wrong in that, it would not be correct to
conclude that the
judgment must necessarily be reversed. See
ante, at 333-334 (O'CONNOR, J., concurring). Our habeas
cases have not so held. See
Wong Doo v.
United
States, 265 U. S.
239, 241 (1924) (affirming even though "the courts below erred
in applying the inflexible doctrine of
res judicata" to
dismiss an abusive petition, because "it does not follow that the
judgment should be reversed; for it plainly appears that the
situation was one where, according to a sound judicial discretion,
controlling weight must have been given to the prior refusal").
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