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U.S. Supreme Court holds that a showing of “actual innocence” allows consideration of merits of habeas petition filed after expiration of time limit

McQuiggin v. Floyd Perkins, USSC No. 12-126, 5/28/13

United States Supreme Court decision, vacating and remanding Perkins v. McQuiggin, 670 F.3d 665 (6th Cir. 2012)

In Schlup v. Delo, 513 U. S. 298 (1995), and House v. Bell, 547 U. S. 518 (2006), the Court held that a convincing showing of “actual innocence” enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. This case asks whether AEDPA’s time limit for filing federal habeas petitions—specifically, §2244(d)(1)(D)’s requirement that the petition be filed within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence”—can be overcome by a convincing showing that the petitioner committed no crime. Resolving a split in the circuits, and relying on its holding in Holland v. Florida, 130 S. Ct. 2549 (2010) (establishing requisites for application of equitable tolling under AEDPA), the Court’s answer is “yes”:

 We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual innocence gateway pleas are rare: “[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.” Schlup, 513 U. S., at 329; see House, 547 U. S., at 538 (emphasizing that the Schlup standard is “demanding” and seldom met). And in making an assessment of the kind Schlup envisioned, “the timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual innocence. Schlup, 513 U. S., at 332. (Slip op. at 1-2).

Perkins was convicted in 1993. After unsuccessful state court appeals that became final in 1997, he filed a federal habeas petition–but not until 2008. To support his claim of innocence the petition relied on witness affidavits given in 1997, 1999, and 2002. (Slip op. 3-5). The district court found the affidavits insufficient to constitute new evidence, and alternatively held that Perkins did not show reasonable diligence in pursuing his claim and did not satisfy the stringent “actual innocence” standard. (Slip op. at 5). The Sixth Circuit reversed based on circuit precedent holding that reasonable diligence was not a precondition to relying on the “actual innocence” route around the time limit for filing a petition. (Slip op. at 6).

Thus, in addition to answering “yes” to whether a showing of “actual innocence” can overcome the time limit on filing a first federal habeas petition (slip op. at 7-13), the Court had to decide whether petitioners invoking the doctrine must also show due diligence in pursuing the facts supporting the claim. The Court holds that such a requirement “makes scant sense” because it erects a judge-made barrier to a petition that might otherwise assert a convincing claim of actual innocence. (Slip op. at 14-15). At the same time, however, the Sixth Circuit went too far in eliminating altogether the timing of the filing as a relevant factor in evaluating the reliability of the petitioner’s proof of innocence:

Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing.  …. As we stated in Schlup, “[a] court may consider how the timing of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of . . . evidence [of actual innocence].” 513 U. S., at 332. See also House, 547 U. S., at 537. (Slip op. at 15).

One commentator said that this case “confirms that federal habeas courts spend much more effort deciding whether they can hear constitutional claims (here, deciding whether an exception to a procedural obstacle is subject to a separate procedural obstacle) than actually adjudicating the constitutional claims of state prisoners.” Maybe so, and maybe the decision has only limited applicability; it’s still a good result for those few habeas petitioners who might meet the “actual innocence” standard.

Note that the resolution of the circuit split undoes Seventh Circuit precedent, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir. 2005) (cited by the Court, slip op. at 6). And note that while Perkins wins the battle, he will no doubt lose the war: The case is remanded to the Circuit Court to consider Perkins’s delay in filing as a factor in determining whether he’s shown “actual innocence,” but with the caveat that the district court’s conclusion that Perkins’s petition doesn’t meet Schlup’s actual innocence standard “should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation.” (Slip op. at 17).

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