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Argument preview: Is the innocence exception to procedural obstacles itself subject to procedural obstacles?

Jordan Steiker is the Judge Robert M. Parker Chair in Law and Co-Director of the Capital Punishment Center at the University of Texas School of Law.

 State prisoners seeking relief from their convictions via federal habeas have always had to surmount a variety of procedural obstacles to receive a “merits” review of their constitutional claims in federal court.  The most common obstacles in the habeas regime that emerged in the 1960s and 70s included the failure to exhaust claims in state court, the failure to comply with state procedural rules, and the failure to present and develop all claims in an initial application.  Prior to the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, the contours of these procedural obstacles were primarily the product of judicial calibration rather than statutory command.  The old habeas statute did not directly address forfeitures in state court, or specify precisely the circumstances under which federal courts should entertain successive petitions.  Accordingly, the Supreme Court crafted a variety of rules governing the treatment of defaulted claims and successive petitions informed by its own equitable judgment.  Though Congress created the right for state prisoners to challenge their confinement in federal court, most of the rules governing habeas litigation (including the cognizability of particular claims and the retroactive applicability of “new” law) were essentially a form of federal common law.

AEDPA added new procedural obstacles and tightened existing ones.  For the first time, AEDPA introduced a statute of limitations (one year, which begins to run from the time a conviction becomes final in state court, tolled during the pendency of state postconviction proceedings) for filing in federal court.  It also significantly limited the circumstances under which federal courts can hold evidentiary hearings or entertain successive petitions.  Perhaps most importantly, AEDPA rejected de novo review of claims adjudicated on their merits in state court, adopting a more deferential standard to state resolution of federal constitutional claims.


McQuiggin v. Perkins requires the Court to decide how much of its equitable framework survives Congress’s revised statutory scheme.  Perkins was convicted of first-degree murder in Michigan in 1993 and sentenced to life without the possibility of parole.  His conviction rested largely on the testimony of Damarr Jones, an eyewitness.  At trial, Perkins argued that Jones’s testimony was false and that Jones was in fact guilty of the offense.  Perkins lost on direct appeal in 1997.  Acting pro se, he raised several claims in his state postconviction proceedings, including ineffective assistance of counsel at trial.  Perkins offered an affidavit from his sister indicating that a third man had overheard Jones confess to the crime and describe taking his blood-soaked clothes to a dry cleaner after the crime; Perkins also offered an affidavit of yet another man who had heard Jones brag about the offense, who had observed blood on Jones’s shoes and pants, and who had accompanied Jones to the dry cleaners.  In 2000, the state court denied relief.  Perkins, still acting pro se and relying on his sister’s help, subsequently located a clerk from the dry cleaners who signed an affidavit indicating that a customer matching Jones’s description had come to her store seeking help in removing blood stains from his clothes just after the crime.

Perkins filed his pro se federal habeas petition in 2008 raising the same federal constitutional claims that had been rejected in state postconviction.  Recognizing that he filed outside of the one-year limitations period, he argued that his affidavits established a colorable claim of his actual innocence.  In the pre-AEDPA era, the Court had crafted a “miscarriage of justice” exception to a variety of procedural obstacles, including state procedural defaults and the limits on successive petitions.  Under the Court’s decisions, a colorable claim of innocence was not itself a basis for habeas relief (a question that remains open to this day) but rather a “gateway” for overcoming procedural obstacles and receiving merits review in federal court.  The federal district court rejected Perkins’s petition as time-barred, holding that his claim of actual innocence could not overcome the bar because, filing six years after obtaining the last of his exculpatory affidavits, he had not acted with reasonable diligence; moreover, the district court observed that much of the evidence contained within the affidavits was “substantially available” to him at the time of trial.  The district court nonetheless granted a certificate of appealability on the question whether “reasonable diligence is a precondition to relying on actual innocence for purposes of equitable tolling.”  (Habeas petitioners are not entitled to an appeal as of right after losing in federal district court.)  The U.S. Court of Appeals for the Sixth Circuit reversed, holding that diligence is not a prerequisite for receiving the benefit of the “miscarriage of justice” exception to procedural obstacles.  In issuing its decision, the Sixth Circuit had the benefit of the Supreme Court’s recent decision in Holland v. Florida, which held that the statute of limitations set forth in AEDPA is not jurisdictional given the rebuttable presumption in favor of equitable tolling and the fact that “equitable principles” have traditionally governed substantive habeas law.

Michigan filed a petition for certiorari, which the Court granted on October 29, 2012.

Supreme Court proceedings

Michigan argues that “due diligence” should be required to extend the statute of limitations based on new evidence of innocence.  The State relies primarily on the statutory language in AEDPA (28 U.S.C. § 2241(d)(1)(D)) which specifies that the limitations period shall run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” According to the state, this provision trumps the Court’s “miscarriage of justice” exception by providing a tolling mechanism for newly discovered facts.  The “miscarriage of justice” exception, on the other hand, would operate as a total abrogation of the statute of limitations unless modified by a similar sort of “due diligence” rule.  The statutory language, though, is clearly focused on new facts relating to the underlying constitutional claims, whereas the miscarriage of justice exception has traditionally focused on the separate question whether the petitioner can make out a colorable claim of actual innocence apart from his underlying claims.  The state also relies heavily on Holland, in which the Court held that equitable tolling of the one-year statute of limitations should apply to a petitioner who had been “pursuing his rights diligently” and some “extraordinary circumstances” stood in the way of timely filing.  Even though the Court in Holland rejected a more stringent test for equitable tolling of the statute of limitations, the state argues that it preserved a requirement of due diligence coupled with extraordinary circumstances.  Finally, the state points to other provisions in AEDPA that clearly modify the scope of the miscarriage of justice exception.  For example, Section 2244(b)(2)(B)(i)-(ii) prohibits federal courts from entertaining new-claim successive petitions unless a petitioner can make a strong showing of innocence (through “clear and convincing evidence”) as well as diligence in pursuing his underlying claim.

Perkins argues Congress enacted AEDPA against the background of the Court’s “miscarriage of justice” exception and that there’s insufficient evidence of Congress’s desire to displace it.  In Perkins’s view, the fact that Congress specifically overrode the exception in other contexts (e.g., successive petitions) is evidence of its desire to preserve it in the context of the statute of limitations.  Moreover, Perkins highlights the longstanding pedigree of the “miscarriage of justice” safety net.  The Court gradually applied the exception to a variety of procedural obstacles, and the exception reflects the Court’s underlying commitment to preserving habeas review for those petitioners it regards as most deserving – the potentially innocent.  Judge Henry Friendly (“Is Innocence Irrelevant?”) famously sought to orient the Court’s habeas jurisprudence around claims brought by potentially innocent convicts, and Perkins insists that the Court should not abandon that protection.

In many respects, the “miscarriage of justice” exception emerged as an ameliorating safety valve as the Court tightened procedural obstacles to habeas review.  In the early 1960s, the Court had developed generous doctrines allowing federal habeas courts to entertain successive petition, overlook state procedural defaults, and permit petitioners to develop evidence in federal court.  The Burger and Rehnquist Courts recalibrated those doctrines, requiring “cause and prejudice” for failure to present evidence in state court, comply with state procedural rules, or present all claims in an initial application.  Moreover, the Court read “cause” narrowly, making it virtually impossible to overcome these obstacles.  At the same time, though, the Court nodded toward Judge Friendly, indicating that the habeas forum would remain open to those petitioners truly aggrieved by virtue of their actual innocence.  McQuiggin v. Perkins asks whether the “fail safe” to procedural obstacles should itself be subject to a procedural obstacle, or whether a colorable claim of actual innocence should be enough (not to get relief, but to have one’s underlying claims heard).  If nothing else, the 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.

Recommended Citation: Jordan Steiker, Argument preview: Is the innocence exception to procedural obstacles itself subject to procedural obstacles?, SCOTUSblog (Feb. 21, 2013, 10:27 AM),