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Argument recap: Habeas irony – procedural obstacles might prevent Court from reaching “merits” of procedural issue

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

At the oral argument earlier this week in McQuiggin v. Perkins, John Bursch, Michigan’s Solicitor General, began his argument by insisting that this case is controlled by the “plain language” of Section 2244(d)(1)(D) of the Anti-Terrorism and Effective Death Penalty Act, which establishes a one-year limitations period that runs from the date on which the “factual predicate” of the claim could have been discovered through the exercise of “due diligence.”  Bursch quickly got sidetracked by Justices Ginsburg and Sotomayor before a more extended exchange with Justice Kennedy. 

Justice Kennedy focused on the sequence of events in this case, where Perkins obtained different affidavits supporting his gateway claim of innocence – which he seeks to use to surmount AEDPA’s one-year statute of limitations – over a period of time.  Justice Kennedy seemed focused on the dilemma faced by an inmate when he has some evidence supporting his innocence but wants to obtain more to make his claim persuasive.  Justice Kennedy asked whether a prisoner who waits to strengthen his case (“which makes a certain amount of sense to me”) should be deemed to be acting with diligence.  Bursch suggested that an inmate in such a situation should file a “protective habeas petition” within the one-year limitations period and alert the court to his further efforts.  Justice Kennedy seemed skeptical about the prospect of “a whole raft” of petition-protective applications “waiting on the shelf in the district court.”  Bursch insisted that this sort of practice is routine in the exhaustion context, puts the state on notice of the assertion of innocence, and gives the state the opportunity to investigate.  Justice Ginsburg asked about Perkins’s unsuccessful efforts to get a lawyer, but Bursch maintained that filing a habeas petition “is not something that takes great difficulty,” given the easy availability of forms on the web.

Justice Alito then pushed on a troubling aspect of the case’s procedural posture.  The federal district court had concluded that Perkins failed to make a sufficient showing of his actual innocence; it then ruled that such a showing would not permit merits review of his claims in any case because Perkins had not acted with diligence following his acquisition of evidence supporting his innocence (and therefore could not get around the limitations period).  The Sixth Circuit granted a certificate of appealability only on the question whether diligence is essential to get around the one-year limitations period.  So Justice Alito wondered how Perkins could benefit from a ruling that diligence was not required; the district court’s finding on the inadequacy of his evidence of innocence would in any event prevent Perkins from getting merits review of his underlying constitutional challenges.  Bursch said “we’re very confused about that, too,” and he suggested that the Court reverse the Sixth Circuit “because there’s nothing left to be done in the district court” even if the lower court were correct that no diligence is required.  Nonetheless (and somewhat oddly), Bursch still maintained that the Court “should address the circuit split” on the question of diligence and its relation to the limitations period.  Justice Sotomayor wondered whether in these circumstances reaching the question presented would amount to an advisory opinion.  Bursch said no and repeated that the Court would be “wholly within [its] right to address the merits question” of the cert. petition, though he did not elaborate why.

Arguing for respondent Floyd Perkins, Chad Readler faced this question immediately in his argument; he suggested that the district court had misapplied the standard for assessing actual innocence under Schlup v. Delo.  Thus, he suggested, the Court should answer the diligence question and return the case to the district court.  Justice Alito disagreed with that approach given that there was no appeal regarding the district court’s finding of insufficient evidence of innocence.  Readler maintained that the district court opinion did not actually get to the “merits” of the innocence claim, and he repeated that the district court was wrong in its approach in any case.  Asked by Justice Alito whether Perkins sought a certificate of appealability regarding the district court’s analysis of the innocence showing, Readler responded that Perkins was acting pro se.

Given the concern of several members of the Court about the posture of the case, it’s conceivable (perhaps even likely) that the Court will not reach the diligence question and instead either dismiss as improvidently granted or reverse the Sixth Circuit on narrow grounds (that the district court’s assessment of the innocence showing controls the litigation and the Sixth Circuit therefore should not have reached the limitations question).  If the Court were to reach the limitations question, the remaining portions of the argument do not point to an obvious outcome.  There was much discussion of AEDPA’s treatment of successive petitions (in Section 2244(b)(2)(B)), where Congress displaced the “miscarriage of justice” formula that Perkins seeks to invoke in this case with a more modest gateway via actual innocence (requiring a petitioner to establish his innocence of the underlying offense by “clear and convincing evidence”).  Bursch argued that Congress’s willingness to jettison the more generous innocence exception in the successive petition context evinces an intent to displace it in the limitations context.  Three Justices (Chief Justice Roberts, Justice Sotomayor, and Justice Kagan) expressed skepticism about this argument, suggesting that the clear statutory departure from the Court-crafted miscarriage-of-justice exception in one part of AEDPA reveals Congress’s ability to be clear on the issue when it wanted to be.  Justice Kagan was particularly unimpressed by this argument on rebuttal, citing a “glaring anomaly” that, under Perkins’s view, the innocence gateway would be available (though narrowed) in the successive petition context but barred in the initial petition context (because of the absence of an innocence gateway around the limitations period).  In Justice Kagan’s view, treating initial petitions less favorably than successive petitions made no sense in light of AEDPA’s overall design.  Bursch clarified that under his view, successive petitions would also be subject to the limitations bar.  But this final point undermined Bursch’s whole line of argument: the very specific language regarding the innocence gateway for successive petitions should be read to eliminate the innocence gateway for initial petitions filed outside of the limitations period; and then successive petitions should be subject to the limitations period as well.  In the end, Bursch reads the specific language regarding successive petitions out of the statute, because successive petitions would be barred by the limitations period.  Ultimately, the specific language in Section 2244(b) controlling successive petitions is more helpful to Perkins than to the state.

The remainder of Bursch’s argument focused on whether the Court should presume that Congress intended to preserve background equitable principles in enacting AEDPA.  Bursch highlighted the cost to the state of suspending the limitations period (particularly the difficulty of refuting claims of innocence that have become stale).

After being bogged down on the procedural posture of the case, Readler emphasized the Court’s embrace of the miscarriage of justice exception as a gloss to other statutory habeas provisions.  Justice Alito sought to highlight the potential cost of essentially abrogating the limitations period on a plausible showing of innocence by asking how many prisoners in Michigan would claim to be actually innocent.  Readler responded by suggesting that few prisoners could “credibly” do so.  Readler also countered the state’s central claim that the language of the AEDPA’s limitations provision (Section 2244(d)(1)(D)) controls this case.  He argued that the provision does not appear to speak to evidence relating to a gateway innocence showing but instead focuses on the factual predicate to a constitutional claim.  If, for example, a petitioner seeks to use his actual innocence to get merits review of a Batson claim, he would not qualify for tolling under Section 2244(d)(1)(D), because his “new” evidence of innocence would have no bearing on his constitutional claim.  Justice Alito responded by pointing to the oddity underlying this whole area of law: if a petitioner has compelling evidence of innocence, the miscarriage of justice exception does not give him relief, only merits review of his constitutional claim.  A petitioner’s ultimate success will hinge on the strength of his underlying claim, which might have no relation to his showing of actual innocence.

Overall, the argument reflected some ongoing confusion about how the “innocence exception” functions, the relation between AEDPA’s limitations provision and other portions of the statute, and the practical consequences of preserving an innocence pathway to merits review.  Even the use of the word “merits” throughout the argument was confusing, because the “merits” to which the parties were referring was the strength of the showing of innocence (as opposed to the “procedural” question regarding how to read the limitations provision).  But the innocence question is itself just another procedural issue before the “real” merits – whether the federal Constitution has been violated.  And that “merits” question will likely never be reached, as the Court wrestles with whether yet another “merits” question should be addressed – the “merits” presented by the petition for certiorari.


Recommended Citation: Jordan Steiker, Argument recap: Habeas irony – procedural obstacles might prevent Court from reaching “merits” of procedural issue, SCOTUSblog (Mar. 1, 2013, 12:51 PM),