Habeas – Defaulted Claim – Assertion of Innocence
Although Coleman defaulted his ineffective assistance of counsel claim by failing to raise it in state court, his allegation of actual innocence supports a “gateway” evidentiary hearing to determine whether to reach the merits of the defaulted claim.
Default may be excused if the petitioner can show 1) “cause” for, and “prejudice” from, the default; or 2) “miscarriage of justice.” These are “procedural” matters which (at least in theory) don’t themselves require relief but instead permit the federal court to excuse the default and reach the merits of the claim. Typically, cause-prejudice analysis asks whether the default is the result of counsel’s ineffectiveness. “Miscarriage of justice” is a separate and much narrower basis for excusing default, and it is the one Coleman invokes by asserting he was “actually innocent” of the crime. In other words, he raises a “procedural claim of innocence” to overcome the procedural default of his claim of ineffective assistance of counsel for failing to marshall evidence of innocence at trial. Got it?
Coleman’s effort to overcome his default is based on a procedural claim of innocence, and he does not bring a substantive claim of innocence. Schlup, 513 U.S. at 314. This means that his constitutional claim is based not on his innocence, but rather on his contention that the ineffectiveness of his counsel “denied him the full panoply of protections afforded to criminal defendants by the Constitution.” Id. …
A prisoner asserting innocence as a gateway to a defaulted claim must show that “in light of new evidence, it is more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 537 (2006) (internal quotation and citation omitted); Holmes, 608 F.3d at 968. This standard is “fundamentally different”, and lower, than that for a substantive innocence claim because the procedural claim of innocence is accompanied with an assertion of constitutional error at trial. Schlup, 513 U.S. at 315-16. …
Coleman’s claim is, as might be imagined, entirely fact-specific. Suffice to say that he has adduced significant support for an alibi defense that the jury didn’t fully hear. The net effect is to give him an evidentiary hearing at which these new witnesses, along with counsel, will testify. A conundrum: what if these witnesses compellingly support the alibi, but counsel musters an equally credible tactical reason for not calling them at trial? Coleman will have made out a case for his “actual innocence,” but merely as a “gateway” to the ineffective assistance claim, which the district must perforce reject on the merits in view of counsel’s tactically sound performance. Coleman’s innocence would be demonstrable, yet from a purely legal point of view, merely “procedural”; a curious limit to the reach of the Great Writ. Perhaps the concern is a mere abstraction: on proof of innocence, any court would probably be minded to say that counsel’s failure to expose the jury to this compelling evidence wasn’t a reasonable tactical decision. Or so we would like to believe.
Added: The court subsequently denied rehearing, but amended the decision to include the following footnote:
We join the Third and Eleventh Circuits in finding that the requirements of 28 U.S.C. § 2254(e)(2)(A) do not have to be met in order for a court to hold an evidentiary hearing on whether the petitioner has met the actual innocence threshold necessary to consider the merits of his procedurally defaulted claim. See Cristin v. Brennan, 281 F.3d 404, 418‐ 19 (3d Cir. 2002) (finding no indications that “Congress intended § 2254 (e)(2)ʹs restrictions on evidentiary hearings to apply, in addition to hearings on the merits, to hearings on excuses to procedural default.”); Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th Cir. 2004) (“We do not believe this provision governs the availability of evidentiary hearings when petitioners seek to introduce evidence concerning actual innocence. By its own terms, § 2254(e) applies only where a petitioner ‘has failed to develop the factual basis of a claim in State court.’ The term ‘claim’ appears to refer to the substantive claim for relief upon which the petition for habeas corpus is based.”). Cf. Morris v. Dormire, 217 F.3d 556, 560 (8th Cir. 2000) (rejecting argument that district court abused its discretion in failing to hold an evidentiary hearing on claim of actual innocence where petitioner made no attempt to satisfy § 2254(e)(2)).
Habeas – Supplement to Record
While this appeal was pending and before we heard oral argument, the district court granted the government’s motion to supplement the appellate record with Coleman’s pro se petition for a writ of habeas corpus filed in 2006. Coleman responded with a motion to strike in this court, arguing that the supplemental pleadings have never been previously reviewed. Although we generally decline to supplement the record on appeal, Ruvalcaba v. Chandler, 416 F.3d 555, 562 n.2 (7th Cir. 2005), we do so when the supplemental material would provide helpful context, Crockett v. Hulick, 542 F.3d 1183, 1188 n.3 (7th Cir. 2008). The added context is particularly helpful here, when we are analyzing whether Coleman can show “actual innocence.” The motion to strike is denied and the record is supplemented with Coleman’s 2006 pro se petition.