In re: Troy Anthony DAVIS, Petitioner.
No. 08-16009.
United States Court of Appeals, Eleventh Circuit.
April 16, 2009.
IV. CONCLUSION
Chen‘s petition for review is denied. The BIA did not err in dismissing her appeal from the IJ‘s order denying her motion to file a successive asylum application based on changed personal circumstances.
PETITION DENIED.
Susan V. Boleyn, State Law Dept., Atlanta, GA, for Appellee.
Stephen L. Ascher, Jenner & Block, LLP, New York City, Kathleen A. Behan, Washington, DC, for Amici Curiae.
PER CURIAM:
On October 22, 2008, Troy Anthony Davis (“Davis“), a Georgia death row inmate, filed an application with this Court seeking authorization to file a second or successive
I. RELEVANT PROCEDURAL HISTORY
A Georgia jury convicted Davis for the murder of Savannah police officer Mark Allen MacPhail in the early morning hours of August 19, 1989, and for two other offenses. The trial court sentenced him to death for the murder conviction. The Supreme Court of Georgia affirmed Davis‘s convictions and death sentence. Davis v. State, 263 Ga. 5, 426 S.E.2d 844, cert. denied, 510 U.S. 950 (1993). Thereafter, in 1997, the state trial court denied his state habeas corpus petition for relief, and in 2000, the Supreme Court of Georgia affirmed the denial of Davis‘s petition. Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (2000), cert. denied, 534 U.S. 842 (2001). Davis then filed his first federal habeas corpus petition on December 14, 2001, raising a number of constitutional violations, including: (1) that the prosecution knowingly presented false testimony at his trial, in violation of Giglio; (2) that the prosecution failed to disclose material exculpatory evidence, in violation of Brady; and (3) that his trial counsel was constitutionally ineffective, in violation of Strickland. Because Davis failed to raise these constitutional claims before the state court, he sought to overcome his procedural default of these claims by showing under Schlup v. Delo, 513 U.S. 298 (1995), that he should be able to raise these claims anyway because he was actually innocent of the underlying murder.1 The district court did not rule on his actual innocence claim, instead reaching the merits of his constitutional claims and denying his petition.
Notably, Davis did not raise a substantive freestanding claim of actual innocence in his first federal habeas petition. During
After the district court denied Davis‘s habeas corpus petition, we affirmed. Davis v. Terry, 465 F.3d 1249, 1256 (11th Cir.2006), cert. denied, 551 U.S. 1145 (2007). We held that Davis failed to sustain a Brady or Giglio violation, and he did not establish a violation of the Sixth Amendment right to the effective assistance of counsel. And we made clear in our opinion that Davis had “not ma[d]e a substantive claim of actual innocence.” Id. at 1251.
In 2007, the state trial court set a new execution date. Soon thereafter, Davis filed an extraordinary motion for new trial, presenting newly discovered evidence in support of his motion. See
Based on this evidence, Davis claimed that to apply Georgia‘s procedures for an extraordinary motion for new trial in a manner that allows for his execution would be unconstitutional. The state trial court “exhaustively reviewed each submitted affidavit and considered in great detail the relevant trial testimony, if any, corresponding to each.” State v. Davis, No. CR89-2467-FR, at 3 (Ga.Super.Ct. July 13, 2007). It observed that the majority of the affidavits that Davis submitted had been sworn over five years earlier, and a few had been attested to over ten years earlier. The state trial court concluded that some of the affidavits contained inadmissible hearsay, that the post-trial affidavits by some of the State‘s witnesses did not constitute cause for a new trial, and that several affidavits were not so material that they would have produced a different result. The state court ultimately denied the motion.
Davis then filed an application for discretionary appeal and a motion for a stay of execution in the Supreme Court of Georgia. While the application was pending, Georgia‘s State Board of Pardons and Paroles granted a temporary stay of execution and scheduled its own hearing. See
Thereafter, in a comprehensive opinion, the Supreme Court of Georgia affirmed the trial court‘s order denying Davis‘s extraordinary motion for new trial. Davis v. State, 283 Ga. 438, 660 S.E.2d 354 (2008). In affirming, the supreme court began by noting the lack of credibility that is generally afforded to recantation testimony, explaining that “[t]rial testimony is closer in time to the crimes, when memories are more trustworthy[, and] ... the trial process itself, including public oaths, cross-examination, and the superintendence of a trial judge, lends special credibility to trial testimony.” Id. at 441, 660 S.E.2d at 358. The supreme court nonetheless painstakingly detailed each of the seven post-trial affidavits by the State‘s eyewitnesses, as well as six affidavits from additional witnesses Davis located, and explained how each affidavit failed to support Davis‘s extraordinary motion for a new trial. Id. at 441-47, 660 S.E.2d at 358-63. Among these affidavits were three eyewitnesses who had identified Davis at trial as the officer‘s shooter, and who Davis claimed had recanted their trial testimony: Antoine Williams, Dorothy Ferrell, and Harriet Murray. After detailing these post-trial affidavits, among others, the supreme court pointed to several defects in them, including the fact that Williams‘s and Ferrell‘s affidavits failed to affirmatively claim that Davis was not guilty, and that Murray‘s unsworn affidavit was yet another inconsistent statement she had made years after the murder. The supreme court determined that none of the affidavits had the materiality required to support an extraordinary motion for a new trial.
The Supreme Court of Georgia concluded this way:
Particularly in this death penalty case where a man might soon be executed, we have endeavored to look beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis‘s allegedly-new testimony would probably find him not guilty or give him a sentence other than death. In that spirit, we have chosen to focus primarily on one of the required showings for an extraordinary motion for new trial, the requirement that the new evidence be “so material that it would probably produce a different verdict.” In weighing this new evidence, we do not ignore the testimony presented at trial, and, in fact, we favor that original testimony over the new. At least one original witness has never recanted his in-court identification of Davis as the shooter, which included a description of his clothing and the location he was in when he struck Larry Young. As we have noted above, most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter. At trial, the jury had the benefit of hearing from witnesses and investigators close to the time of the murder, including both Davis and Coles claiming the other was guilty. We simply cannot disregard the jury‘s verdict in this case.
Id. at 447, 660 S.E.2d at 362-63 (citations omitted).
Following the Supreme Court of Georgia‘s opinion, Georgia‘s State Board of Pardons and Paroles (“the Board“) rescinded its stay of execution and denied Davis‘s application.2 In so doing, the Board took the unusual step of issuing a “Statement,” and noted that while it “does
Thereafter, Davis petitioned the United States Supreme Court for certiorari review of the Supreme Court of Georgia‘s decision. The Supreme Court initially granted a stay of execution, Davis v. Georgia, 554 U.S. 945 (2008), but several weeks later, on October 14, 2008, it denied the petition, thereby terminating the stay, Davis v. Georgia, 555 U.S. 917 (2008). Davis then began the process in this Court for permission to file a second or successive federal habeas corpus petition.
II. DISCUSSION
Under the controlling statute,
We begin by observing that it is not clear at all under the case law whether the claim that Davis now raises—a freestanding actual innocence claim—is viable on federal habeas corpus review. In Herrera v. Collins, 506 U.S. 390, 417 (1993), the Supreme Court assumed “for the sake of argument in deciding [the] case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitu-
Congress enacted
In fact, the codification of
Following the enactment of AEDPA, the Supreme Court had occasion to consider the constitutionality of the newly added gatekeeping requirements found in
The writ of habeas corpus known to the Framers was quite different from that which exists today. As we explained previously, the first Congress made the writ of habeas corpus available only to prisoners confined under the authority of the United States, not under state authority. The class of judicial actions reviewable by the writ was more restricted as well. ...
It was not until 1867 that Congress made the writ generally available in “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” And it was not until well into this century that this Court interpreted that provision to allow a final judgment of conviction in a state court to be collaterally attacked on habeas. But we assume, for purposes of decision here, that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.
The Act requires a habeas petitioner to obtain leave from the court of appeals before filing a second habeas petition in the district court. But this requirement simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by
28 U.S.C. § 2254 Rule 9(b) . The Act also codifies some of the preexisting limits on successive petitions, and further restricts the availability of relief to habeas petitioners. But we have long recognized that “the power to award the writ by any of the courts of the United States, must be given by written law,” and we have likewise recognized that judgments about the proper scope of the writ are “normally for Congress to make.”
Id. at 663-64 (citations omitted and emphasis added). The Supreme Court concluded that the new restrictions found in
With this in mind, we turn to fulfilling the gatekeeping function Congress has laid out for us in
A. 28 U.S.C. § 2244(b)(2)(B)(i)
We must consider whether Davis has made a prima facie showing establishing the first requirement found in
First, Davis suggests that he was diligent in gathering the “new” evidence underlying his Herrera claim because he brought this very evidence to the first federal habeas court. The problem with this argument, however, is that he did not present evidence of actual innocence to the district court in support of a Herrera freestanding actual innocence claim. Rather, he used this evidence only to argue that, under Schlup, he could overcome the pro-
Plainly, the statute does not support this argument. As the statute reads, a claim brought in a successive petition must be dismissed unless “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence.”
Davis also maintains that even though he had all the necessary evidence, he could not have brought a Herrera freestanding actual innocence claim in his first federal habeas petition because he had not exhausted his state remedies. This argument is foreclosed by Supreme Court precedent, beginning with Rose v. Lundy, 455 U.S. 509 (1982), in which the plurality opinion held that district courts should dismiss “mixed petitions“—those with exhausted and unexhausted claims—and that petitioners with such petitions have two options. See Burton v. Stewart, 549 U.S. 147, 154 (2007) (citing Rose, 455 U.S. at 520-22). They may: (1) withdraw the mixed petition, exhaust the remaining claims, and return later to district court with a fully exhausted petition; or (2) proceed with only the exhausted claims, although doing so risks subjecting later petitions that raise new claims to “rigorous procedural obstacles.” Id. (citing Rose, 455 U.S. at 520-21). Davis obviously chose to proceed with the second option, and cannot now avoid the “rigorous procedural obstacles” found in
Moreover, and perhaps even more fundamentally, Davis has failed to adequately explain why he had not exhausted his state remedies concerning the Herrera claim prior to filing his first federal habeas petition. As he freely admits, he had the “lion‘s share” of information he needed to perfect a Herrera freestanding actual innocence claim at the time he filed his first federal habeas petition. As a result, he could have brought his Herrera claim earlier in the state courts, which would have allowed him to exhaust his claim prior to filing his first federal habeas petition. In fact, Georgia law expressly provides that he could have brought an extraordinary motion for a new trial to the Georgia courts at any time. See
Finally, even if he had not first brought his Herrera claim to the state courts, Davis nonetheless could have gone forward with his Herrera claim in his first federal habeas petition by attempting to overcome his procedural default with a showing of “cause and prejudice” or an “actual miscarriage of justice.”7 See Freeman v. Att‘y Gen., 536 F.3d 1225, 1231 (11th Cir.2008) (“When a state prisoner fails to exhaust his federal claims in state court pursuant to independent and adequate state procedural rules before bringing his habeas petition, ‘federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.‘“), cert. denied, 555 U.S. 1111 (2009). Yet, for reasons he does not provide—and which his counsel has suggested were purely tactical—he failed to pursue either option.8
Because Davis did not bring his Herrera claim during his first federal habeas petition, and cannot excuse his failure to do so on exhaustion grounds, Davis is left with relying on any evidence in support of his Herrera claim that “could not have been discovered previously through the exercise of due diligence.”
We agree that the 2008 Gordon affidavit, and only this affidavit, satisfies the requirement of due diligence embodied in
At trial, Gordon testified that he did not see the shooter at the Cloverdale party and that he did not remember telling the police any of the details about the shooter. In a 2003 affidavit, Gordon said that Davis had not been among the group of people at the Cloverdale party, reiterated that he had not seen the shooter, and said that the police had threatened him, so he had signed the police report without reading it. In his 2008 affidavit, Gordon said that he had possessed additional information in 2003, but had not shared it because it involved a family member, Red Coles, and Gordon was worried about getting in trouble with the police. Gordon reaffirmed the contents of his earlier affidavit, but added that Coles had suggested to him, long after the shooting, that he (Coles) was the one who had killed Officer MacPhail.
There is nothing to indicate that Davis could have previously discovered this information with the exercise of due diligence. In fact, because Gordon previously executed an affidavit that was favorable to Davis, there was no reason for Davis to believe that Gordon had omitted any information. As a result, we consider the 2008 Gordon affidavit in determining whether Davis has satisfied
B. 28 U.S.C. § 2244(b)(2)(B)(ii)
We turn then to the second requirement necessary to file a successive petition under AEDPA, embodied in
First, in analyzing this requirement, we consider whether a Herrera freestanding actual innocence claim, is the kind of claim that can be heard in a second or successive habeas petition. We begin, as we must, with the plain language of the statute. As we have often said, “[t]he starting point for all statutory interpretation is the language of the statute itself.” United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999). Indeed, “[t]he first rule in statutory construction is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute. If the statute‘s meaning is plain and unambiguous, there is no need for further inquiry.” United States v. Silva, 443 F.3d 795, 797-98 (11th Cir.2006) (quotation marks omitted) (quoting United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.2002)). We “assume that Congress used the words in a statute as they are commonly and ordinarily understood, and we read the statute to give full effect to each of its provisions.” DBB, Inc., 180 F.3d at 1281. Put differently, we “must presume that Congress said what it meant and meant what it said.” Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167 (11th Cir.2003) (quotation marks omitted).
Section
However, the statutory language does not readily accommodate Davis‘s freestanding Herrera claim. In fact, in order to apply the statute to his claim,
But even if we were to completely read out of the statute the phrase “but for constitutional error” and assume arguendo that a Herrera claim, without more, is the kind of constitutional error contemplated by
But, more important, the affidavit, standing alone, does not negate the rest of the State‘s evidence at trial. The prosecutor‘s case included the presentation of four eyewitnesses to the officer‘s shooting who unambiguously identified Davis as the shooter. Further, the State‘s evidence showed that Davis was the one to strike Larry Young, a homeless man who, according to the evidence, was hit in the head by the same person who shot Officer MacPhail. The prosecution also established that Davis confessed to the murder to Jeffrey Sapp and Kevin McQueen. Because this evidence remains in place, Gordon‘s affidavit does not overwhelmingly bolster the credibility of Davis‘s witnesses—including Joseph Washington, who said at trial that he saw Coles shoot the officer, and Tanya Johnson, who said at trial that Coles looked nervous after the shooting—to the point where no reasonable factfinder would have credited the State‘s witnesses.
In short, we are constrained by the statutory requirements found in
C. Equitable grounds
Davis suggests, however, that we are not bound by the procedural requirements placed on us by Congress in
As an initial matter, Davis has cited no case authority for the notion that we can ignore the gatekeeping requirements found in
But even if we could somehow employ our equitable powers as gatekeeper reviewing a successive petition and ignore the plain requirements found in
Our review of the record is wholly consonant with the repeated conclusions of the state courts and the State Board of Pardons and Paroles. For starters, we repeatedly have noted that “recantations are viewed with extreme suspicion by the courts.” United States v. Santiago, 837 F.2d 1545, 1550 (11th Cir.1988); United States v. Smith, 433 F.2d 149, 150-51 (5th Cir.1970) (quoting Newman v. United States, 238 F.2d 861, 862 n. 1 (5th Cir. 1956)). This makes sense, because as Justice Brennan once explained, recantation testimony “upsets society‘s interest in the finality of convictions, is very often unreliable and given for suspect motives, and most often serves merely to impeach cumulative evidence rather than to undermine confidence in the accuracy of the conviction.” Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 (1984) (Brennan, J., dissenting).
We thus approach the recantation affidavits with some skepticism, as we must, and, reviewing the record as a whole, remain unpersuaded. To begin with, four eyewitnesses to Officer MacPhail‘s murder testified at the trial and identified Davis as the shooter: Steve Sanders, Harriet Murray, Antoine Williams, and Dorothy Ferrell. The first eyewitness, Steve Sanders, an Air Force serviceman, was seated in a van in the parking lot near the site of the shooting. He unambiguously identified Davis as the shooter, and did not back off of his identification when he was pressed on cross-examination, testifying that “you don‘t forget someone that stands over and shoots someone.” Sanders has submitted no post-trial affidavit altering his eyewitness account.
Another eyewitness, Harriet Murray, was sitting in the parking lot, and was a
The two other eyewitnesses, Williams and Ferrell, also identified Davis at trial as having shot and killed Officer MacPhail. According to their post-trial affidavits, they have recanted their identifications, but all that they now declare is that they did not see who the shooter was or what he was wearing. The ambiguity of Williams‘s and Ferrell‘s post-trial affidavits falls far short of a compelling showing or, for that matter, a prima facie showing of Davis‘s innocence.
Davis also points to several post-trial affidavits averring that Red Coles confessed to Officer MacPhail‘s murder. Yet, at trial, the jury heard Davis and Coles give conflicting testimony: Coles identified Davis as the one who hit Larry Young in the head, and Davis testified that Coles hit Young in the head. Neither, however, identified the other as the shooter. The jury chose to believe Coles. But even if we were to wholly discount Coles‘s testimony, Davis‘s trial testimony still squarely conflicts with the testimony of various witnesses, including Sanders, Murray, and even Larry Young, who testified that the only man who spoke that night was the one arguing with him, while Davis testified that he twice told Coles to stop bothering the man. In addition, Davis‘s testimony also squarely conflicts with the testimony of Red Coles‘s sister, Valerie Coles, who testified that Davis had come to her house to change shirts after the shooting, while Davis testified that he had never been to her house.
All told, the testimony by Murray and Sanders remains; the two other eyewitnesses do not now implicate anyone, much less Coles; Coles continues to implicate Davis; and the testimony of Larry Young and Valerie Coles still collides with Davis‘s. When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail‘s murder.
We are also unpersuaded by Davis‘s suggestion that his claim of innocence has not been and will never be heard. As the record shows, both the state trial court and the Supreme Court of Georgia have painstakingly reviewed, and rejected, Davis‘s claim of innocence. Likewise, Georgia‘s State Board of Pardons and Paroles thoroughly reviewed, and rejected, his claim, even conducting further research and bringing in witnesses to hear their recantations in person.
Moreover, Davis still may petition the United States Supreme Court to hear his claim under its original jurisdiction. The Supreme Court has made clear that the habeas corpus statute, even after the
III. CONCLUSION
Since Davis has failed to meet either of the statutory requirements found in AEDPA,
APPLICATION DENIED.
BARKETT, Circuit Judge, dissenting:
This case highlights the difficulties in navigating AEDPA‘s thicket of procedural brambles. While we must deal with the thorny constitutional and statutory questions before us, we also cannot lose sight of the underlying issue in this case. Simply put, the issue is whether Troy Anthony Davis may be lawfully executed when no court has ever conducted a hearing to assess the reliability of the score of affidavits that, if reliable, would satisfy the “threshold showing” for “a truly persuasive demonstration of actual innocence,” thus entitling Davis to habeas relief. Herrera v. Collins, 506 U.S. 390, 417 (1993) (quotation omitted).
In the affidavits, seven of nine key trial witnesses recanted their testimony which pointed to Davis as Officer MacPhail‘s murderer. The two remaining non-recanting witnesses were Sylvester “Red” Coles, who was himself alleged to have been the shooter in affidavits, and Steve Sanders, who identified Davis at trial two years after the incident despite admitting to police immediately following the shooting that he would not be able to recognize the shooter.
The majority of the affidavits support the defense‘s theory that, after Coles raced to the police station to implicate Davis, the police directed all of their energy towards building a case against Davis, failing to investigate the possibility that Coles himself was the actual murderer. For example, none of the photospreads shown to eyewitnesses even included a picture of Coles. Additionally, three affiants now state that Coles confessed to the killing. To execute Davis, in the face of a significant amount of proffered evidence that may establish his actual innocence, is unconscionable and unconstitutional.
The majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA. But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed. In this case, the circumstances do not fit neatly into the narrow procedural confines delimited by AEDPA. But it is precisely this type of occasion that warrants
The scope and flexibility of the writ [of habeas corpus]—its capacity to reach all manner of illegal detention—its ability to cut through barriers of form and procedural mazes—have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.
Harris v. Nelson, 394 U.S. 286, 291 (1969).
BACKGROUND
The facts of this case center around the night of Friday, August 18 and the early morning of Saturday, August 19, 1989, in Savannah, Georgia. It is undisputed that “Red” Coles was harassing and following a homeless man, Larry Young, between a pool hall and a Burger King parking lot. Davis and Darrell “D.D.” Collins also were present during some portion of the harassment. Someone hit Young, nearby police officer Mark MacPhail responded, and someone shot MacPhail three times.
The police had no leads until Coles went to the police station the day after the murder, admitted that he was one of the three individuals involved in the altercation with Larry Young, and implicated Davis in the MacPhail shooting. There is no dispute that the police focused exclusively on Davis as a suspect because of Coles‘s statement. The witnesses at trial primarily identified the shooter as the person wearing a white shirt. However, the totality of the evidence, including the affidavits, contains conflicting evidence about what color shirts Davis and Coles were wearing, with testimony that each was wearing a white shirt.
The two trial witnesses who claimed that Davis confessed to the shooting have since recanted in sworn affidavits.1 Additionally, three witnesses who did not testify at trial have since submitted sworn affidavits stating that Coles confessed to them that he was the shooter, and one of the State‘s trial witnesses submitted a sworn affidavit stating that Coles essentially confessed to him, but that he had not said anything sooner because he and Coles were related. Thus, no one at this time contends that Davis has ever confessed to the shooting; conversely, multiple witnesses maintain that Coles has confessed.
DISCUSSION
I. A Claim of Actual Innocence Is a Cognizable Constitutional Claim.
In Herrera, the Supreme Court 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. Without explicitly announcing a standard by which to judge such a claim, the majority stated that the required threshold showing of innocence “would necessarily be extraordinarily high,” in light of the disruptive effect of entertaining such a claim and the enormous burden on a state court of having to retry a case. Id. The majority then held that Herrera‘s showing of innocence fell short of such a standard. Id. at 418-19.
Justice Blackmun, joined by Justices Stevens and Souter, dissented from the denial of relief and explained that the majority‘s discussion of the validity of a freestanding actual innocence claim was dictum because the Supreme Court decided the case based only on the assumption that Herrera‘s claim was valid. Id. at 430. Justice Blackmun declared that “the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence.” Id. at 431. He explained that the execution of an actually innocent person violated the Constitution‘s ban on cruel and unusual punishment and its guarantee of substantive due process. Id. at 431-37.
Between Justice O‘Connor‘s concurrence and Justice Blackmun‘s dissent, five justices agreed that the execution of an actually innocent person would violate the Constitution. Consistent with the opinions of five justices in Herrera, I believe that the Eighth and Fourteenth Amendments prohibit the execution of an actually innocent individual.
With respect to the Eighth Amendment, it is absurd to suggest that executing a person for a crime of which he is innocent does not amount to cruel and unusual punishment. Indeed, the Supreme Court has held that execution violates the Eighth Amendment for several offenses comparatively less severe than murder, including rape. Coker v. Georgia, 433 U.S. 584 (1977). The Court has also held that the execution of mentally retarded persons and juvenile offenders violates the Eighth Amendment because such persons are less criminally culpable. Atkins v. Virginia, 536 U.S. 304 (2002) (mentally retarded persons); Roper v. Simmons, 543 U.S. 551 (2005) (juvenile offenders).
Similarly, the execution of one who is actually innocent, but found legally guilty, clearly runs contrary to social consensus. As Justice Blackmun stated in his Herrera dissent, it is “crystal clear that the execution of an innocent person is at odds with contemporary standards of fairness and decency.” 506 U.S. at 431 (quotation omitted). Obviously, the execution of an actually innocent individual has nothing to do with the goals of criminal punishment. Such an execution would serve no retributive purpose nor have any deterrent value. See Kennedy v. Louisiana, 554 U.S. 407 (2008). On the contrary, the execution of an actually innocent individual undermines the legitimacy of the criminal justice system‘s power to punish. See Herrera, 506 U.S. at 433-34 (Blackmun, J., dissenting) (noting that “the legitimacy of punishment is inextricably intertwined with guilt“).
Likewise, the Fourteenth Amendment‘s Due Process Clause prohibits states from depriving any person of life or liberty without due process of law. “[S]ubstantive due process prevents the government from
Certainly, the execution of an actually innocent person would shock the conscience such that it runs afoul of the right to substantive due process. See Herrera, 506 U.S. at 430 (Blackmun, J., dissenting) (“Nothing could be more contrary to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent.“) (internal citations omitted). Justice Blackmun remarked that “execution of an innocent person is the ultimate arbitrary imposition” because it is one “from which one never recovers and for which one can never be compensated.” Id. at 437 (quotation and citation omitted).
I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based.
II. As the Constitution Prohibits the Execution of an Actually Innocent Individual, Habeas Relief Must Be Available to an Actually Innocent Individual Facing Execution.
The majority opinion does not consider whether federal habeas relief may ever be available for the actually innocent, but instead concludes that AEDPA prohibits this court from granting permission to file a second or successive habeas petition when the only claim asserted is one of actual innocence. I do not believe that AEDPA‘s procedural bars should be read to preclude this court from granting permission to file a second or successive habeas petition to individuals who bring a viable freestanding actual innocence claim. As we have recognized, “if a petitioner in fact has a freestanding actual innocence claim, he would be entitled to have all his procedural defaults excused as a matter of course under the fundamental miscarriage of justice exception.” Mize v. Hall, 532 F.3d 1184, 1195 n. 9 (11th Cir.2008).
In considering
However, it is incongruous to suggest that an actually innocent individual who can allege a constitutional violation occurred at trial is entitled to permission to file a second or successive petition, while an actually innocent individual who cannot identify any such violation cannot receive permission from this court to file such a petition to prove his claim, even though granting permission may prevent his unconstitutional execution. Indeed, the underlying principle of a Herrera actual in-
For the same reason, the failure to satisfy the diligence requirement of
The majority opinion looks at the Gordon affidavit alone and compares it with the State‘s evidence at trial, and finds that the affidavit cannot establish that “no reasonable factfinder would have found [Davis] guilty of the underlying offense,” as required by
There is no question that, even pre-AEDPA, the procedural obstacles to filing a second or successive habeas petition were considerable. See generally Schlup, 513 U.S. at 317-19. Nonetheless, the Supreme Court has “consistently reaffirmed the existence and importance of the exception for fundamental miscarriages of justice.” Id. at 321. And, particularly relevant in the present case, the Court has recognized that “[t]he quintessential miscarriage of justice is the execution of a person who is entirely innocent.” Id. at 324-25. Thus, where a defendant who can make a viable claim of actual innocence is facing execution, the fundamental miscarriage of justice exception should apply and AEDPA‘s procedural bars should not prohibit the filing of a second or successive habeas petition. I respectfully dissent.