Schlup v. Delo

SUPERINTENDENT, POTOSI DELO, SCHLUP CENTER CORRECTIONAL January Argued 1994 Decided October No. 93-7901. Court, in which O’Connor, J., opinion of the delivered the Stevens, J., JJ., joined. filed a con- O’Connor, Souter, Ginsburg, Breyer, and J., opinion, opinion, post, p. 332. dissenting C. filed a Rehnquist, curring Kennedy J., joined, post, p. 334. JJ., filed Scalia, Thomas,- in which Thomas, J., joined, post, p. 342. dissenting opinion, in which Sean D. O’Brien argued With the cause for petitioner. Randy Anthony Amsterdam, G. him on the briefs were Timothy Hertz, K. Ford. (Jay) Nixon,

Jeremiah W. Missouri, General Attorney With him on the brief the cause for argued respondent. Jung, Stephen D. Hawke and Frank A. At Assistant were torneys General.*

* Briefs of amici curiae urging affirmance were filed for the State of Lungren, Attorney General of California, Daniel E. California et al. Gillette, General, Williamson, George Dane R. Attorney Chief Assistant Krotoski, and Mark L. Deputy Attorney General, Special Assistant Attor Evans, James H. M. ney General, Alabama, Bruce Attorney General of Woods, Botelho, Alaska, Grant Attorney Attorney General of General of Norton, Bailey, Gale A. Arizona, Attorney Colorado, John M. General of III, Oberly Connecticut, Charles M. Attorney Attorney Chief State’s Butterworth, A. Delaware, Florida, Robert Attorney General of General of EchoHawk, Larry Burris, Attorney Roland W. Attorney Idaho, General of Gorman, Attorney Illinois, Chris Richard Kentucky, General of General of Ieyoub, Moore, P. Mike Louisiana, Attorney Attorney General of General Mazurek, Mississippi, Joseph P Attorney Montana, Don General of opinion delivered the the Court. Justice Stevens Lloyd Schlup, prisoner Jr., Petitioner E. a Missouri cur- rently death, under a sentence of filed a second federal corpus petition alleging that constitutional error de- prived jury of critical evidence that would have estab- lished his Court, innocence. District without conduct- ing evidentiary hearing, an declined to reach the merits of petition, holding satisfy could not showing required by Sawyer threshold of “actual innocence” (1992). Whitley, Sawyer, peti- 505 U. S. 333 Under “by convincing tioner must show that, clear and evidence but juror for a constitutional no error, reasonable would have petitioner” guilty. Ap- Id., found the at 336. The Court of peals granted affirmed. We certiorari to consider whether Sawyer provides adequate protection against standard miscarriage justice the kind of that would result from the person actually execution of a who is innocent.

I February high security On on 1984, Walk of the area Penitentiary, of the Missouri State a black inmate named Ar- thur Dade was stabbed to death. Three white inmates from Stenberg, Attorney Nebraska, Papa, Attorney Frankie Sue Del General of Poritz, General Deborah T. Nevada, Attorney Jersey, General of New Udall, Attorney Tom Easley, Mexico, Michael F. General of New Attorney Fisher, General of Lee Carolina, North Attorney Ohio, Susan General of Loving, B. Jr., Preate, Attorney Oklahoma, Ernest D. General of Attorney Medlock, Attorney General of Pennsylvania, T. Travis General of South Barnett, Mark Carolina, Attorney Dakota, Charles TV General of South Burson, Attorney Morales, Tennessee, Dan General of Attorney General Graham, Jan Texas, III, Attorney Utah, James S. Gilmore General of Attorney General of Virginia, Joseph Meyer, B. and Attorney General of Wyoming; and for the Legal Criminal Justice Kent S. Foundation Scheidegger and Charles L. Hobson. Jr., Tyler,

Harold R. and Eric M. Freedman filed a brief of amici curiae for Five Innocent Former Death Row Inmates et al.

302 charged including petitioner, in with connection were 2, Walk murder. Dade’s evidence petitioner’s 1985,the State’s trial in December

At testimony principally of two corrections of- consisted killing. day of the mur- On witnessed who had ficers duty Roger Sergeant on Walk was on and Flowers der, high prison’s on the lower floor the two walks 2,Walk security first released the testified that he Flowers area. their noon meal and relocked their for on Walk inmates unlocking on the cells to release the inmates After cells. an inmate named Rodnie Stewart noticed 1, Flowers Walk moving carrying against container of the flow traffic steaming liquid. threw the watched as Stewart Flowers Schlup According Flowers, to then liquid in Dade’s face. joined jumped and O’Neal the at- back, on Dade’s Robert help, walk, for entered the Flowers shouted tack. grabbed two as the other assailants fled. Stewart Maylee from Walk witnessed the attack John

Officer some 40-50 feet above Walks 1 and which is three levels and they Maylee Schlup, as Stewart, first and O’Neal noticed 2.1 against running from to Walk the flow traf were Walk testimony, According Maylee’s to threw con Stewart fic. jumped liquid Schlup face, at Dade’s and then on tainer then Dade several Dade’s back. O’Neal stabbed times weapon chest, ran down the and threw the out a walk, Maylee happened Schlup window. did not see what to or stabbing. after the Stewart produced physical connecting no State evidence killing, no and witness other than Flowers and

Maylee Schlup’s testified involvement in murder.2

1 Maylee testify Schlup’s Testimony was unavailable to trial. from pretrial Maylee’s deposition was admitted in evidence and was read jury. contrast, In the evidence of involvement of Stewart O’Neal Stewart, example, apprehended Dade’s murder was substantial. Schlup’s wrong defense was that the had the State man.3 heavily videotape prison- on He relied from a camera dining tape Schlup showed that first ers’ room. dining walk into the room for the meal, inmate to noon and through got Approxi- he went the line and his food. mately Schlup’s guards seconds after entrance, several dining apparent response out of the room in ran to a distress Twenty-six dining later, call. seconds O’Neal ran into the dripping Shortly Schlup room, thereafter, blood.4 custody. taken O’Neal were into

Schlup videotape, contended that the when considered in conjunction testimony with that he had walked at a normal pace dining room,5 from his cell to the demonstrated that participated he could not have the assault. Because the videotape conclusively Schlup dining showed was in the guards responded room 65 seconds before the to the distress Schlup’s call, a critical element of defense was determin- ing when the distress call went out. Had the call distress shortly sounded after murder, would not have get prison dining had time to from the floor to room, during struggle Flowers itself. And when O’Neal was taken into custody, his clothes were covered with bleeding blood and he was from right lacerations on his hand. 3Schlup testify guilt phase did not at the of the trial. At the sentencing hearing, Schlup testify did and maintained his innocence of the offense. He continued to maintain jury his innocence even after the had sentenced him to death. stabbing Dade, After O’Neal broke a window with his hand and threw the knife out the window. That in multiple resulted lacerations to his right leaving prison floor, hand. Before paused O’Neal briefly at a try blood, utilities sink on Walk 2 to to wash off the and then continued dining on to the room.

O’Neal dining was followed into the room by Randy Jordan, inmate who is identified in some attesting petitioner’s affidavits innocence as the infra, participant third in the However, crime. See at 308-309. Jordan’s name was not Schlup’s mentioned at trial. 5Schlup’s cell was at the end of Walk closest to dining room. in the murder. Con- not have participated he could

thus minutes between of several delay there been a had versely, had suf- have call, Schlup might and the distress the murder to the in the murder and still get to time participate ficient call went out.6 distress over a minute before room dining to establish that evidence tending adduced The prosecutor Flowers testified First, had in fact occurred. a delay such radios, thus floor had prison the officers on none of that officers on the he nor of the other any that neither implying when occurred. for the stabbing able radio help floor was for that after he shouted help, Flowers testified Second, Flow- minutes” subdue Stewart.7 couple took him “a [of] downstairs, encountered Captain brought ers then Stewart a “dis- that there had been Eberle, and told Eberle James that he to the Eberle testified went upstairs turbance.”8 esti- for assistance. Eberle floor, then radioed prison time from when he first saw Flowers that elapsed mated Maylee necessary Schlup’sdefense Flowers and A element of was that Schlup participants in their identification as one of the were mistaken that a visitor to Schlup suggested in the murder. Flowers had taken just Schlup argued Schlup’s cell 30 minutes before the murder. that 493-494, brain,” Schlup therefore “on the Tr. thus Flowers had had Trial murder, why, surrounding might in the explaining confusion Flowers mistakenly Schlup. he had seen have believed that Schlup argued Maylee’s suspect Maylee that identification was because away was three floors from the murder and did not have an unobstructed Schlup suggested Maylee’s view of murder further scene. that identi- Schlup by postincident had be- fication been influenced conversation Maylee tween and another officerwho had to Flowers. talked argued Schlup descrip- also there were inconsistencies between the provided by by Maylee. tion of the murder Flowers and provided example, Maylee Stewart, For Schlup, testified that he saw and O’Neal against traffic, running together the flow the three men and that had stopped they id., when Dade. See encountered at 332. Flowers noticed only running against traffic, Stewart the flow of and he testified that O’Neal and end were at the other the far side the walk on id., Dade. See at 249. 7Id., at 243.

8 Id.,at 245. minute.”9 help “approximately until he radioed investi- from a prison also offered testimony The prosecution from the scene he was able to run who testified gator and to walk room in 33 seconds crime to the dining and 37 seconds. in a minute distance at normal pace evidence was able present the State nor Schlup Neither his cell release from exact time of Schlup’s establishing or the 1, assault on Walk 2, the exact time of the on Walk Further, there was no radio distress call. exact time of the hurried to the dining that had Schlup evidence suggesting room.10 returned a verdict deliberating overnight, jury

After the victim at which Following penalty phase, guilty. about extensively of one of offenses testified prior Schlup’s sentenced offense,11 Schlup sordid details of that the jury affirmed Schlup’s Court to death. The Missouri Supreme 724 W. 2d State v. Schlup, sentence, and death S. conviction (Mo. Schlup certiorari, v. 1987), 236 and this Court denied Missouri, 482 (1987).12

9Id., 212, 214-215. at inmates, fact, contrary. Two presented In the evidence was to the Peter, they were behind Bailey Bernard and Arthur St. testified they Schlup way dining had all walked in line on the to the room and officer on pace. Faherty, at a normal Lieutenant Robert the corrections room, dining testi duty leading prison in the corridor from the floor to Schlup day the corridor on the fied that was the first inmate into Faherty Schlup pause yell some murder. also testified that he saw corridor, thing Schlup he out one of the windows in the and that told Faherty nothing unusual had occurred while move on. testified that else Schlup was in the corridor. hand, videotape Maylee’s testimony

On the other both and the establish dining that O’Neal ran from Walk 1 room. to the 11 Schlup sodomy had been and assault in connection convicted with being on a in county jail. series attacks cellmate while he was held alleged participants earlier, The other in the crime were convicted in separate O’Neal, stabbing, death, trials. who did the was sentenced to O'Neal, (Mo. 1986);Stewart, see State appre S. W. 2d 498 who was scene, years’ imprisonment hended Flowers at the was sentenced to 50

II his state collateral 1989, after 5, exhausting On January writ a federal se for remedies,13 filed pro petition Schlup others, that his claim, among asserting habeas corpus, interview, and to trial was ineffective failing counsel The innocence.14 who could establish Schlup’s call witnesses claim ineffectiveness District concluded Schlup’s Court on that claim barred, and it denied relief was procedurally Court hearing.15 without an conducting evidentiary affirmed, proce- it did not on the rely alleged though Appeals (CA8 1991). Armontrout, 941 F. 2d 631 dural bar. record, on its own examination of Instead, based had not been found that trial counsel’s performance had re- ineffective, both because counsel constitutionally had witnesses viewed statements that Schlup’s potential the testimony and because given prison investigators, to be those witnesses “would be of the testimony repetitive But 11 F. 3d Id., at 639.16 cf. trial.” presented Stewart, eligibility probation parole, v. 714 S. W. without for or see State (Mo. 1986). App. 2d 724 Schlup’s postconviction The denial of motion for relief was affirmed State, 18, Supreme Schlup the on 1988. See v. Missouri Court October (Mo. 1988). 758 S. W. 2d 715 14Schlup nonparticipant identified three witnesses who he claimed had Robinson, Bey, Ricky witnessed the murder: Van Griffin and Lamont McCoy. Schlup failing Randy also faulted trial counsel for to interview Jordan, Schlup participant whom identified as the third the murder. 15Schlup presented had postconvic the ineffectiveness claim in his state motion, tion appeal. Schlup but had failed to v. raise on See Armon (ED trout, 89-0020C(3), 18285, Mo., No. 1989 U. S. Dist. LEXIS *11-*13 1989). 31, May

Schlup’s petition claims, first federal habeas also raised several other all of which procedurally were denied either as barred or on the merits. 16The Court of Appeals Schlup’s also addressed other claims. Over Judge Heaney’s dissent, rejected Schlup’s the court claim that his counsel had been failing ineffective for mitigating to adduce available evidence at penalty hearing. Armontrout, Schlup 2d, 941 F. at 639. The court (CA8 1993) (challenging (Heaney, dissenting) con- J., n. 3 testimony “repetitive”). would been clusion that such have rehearing Appeals petition for denied a Court Schlup suggestion rehearing Armontrout, for en banc, (1991), petition certiorari, denied a for F. 2d 1062 and we (1992). U. S. 909 represented Schlup by new counsel, March

On corpus petition. petition filed second federal habeas That (1) including Schlup claims, a number of was actu- raised ally his murder, innocent Dade’s and that execution would Eighth Amendments, therefore violate the and Fourteenth (2) (1993); Collins, cf. Herrera v. 506 U. S. 390 trial counsel failing witnesses; was ineffective for to alibi interview (3) exculpatory had the State failed disclose critical evi- petition supported by dence. The numerous affidavits attesting Schlup’s from inmates innocence. response arguing procedural

The State filed a that various precluded reaching bars the District from the merits Schlup’s any claims and that the mer- claims were event response transcripts itless. Attached to the State’s were by prison investigators just inmate interviews conducted five days transcripts after One of murder. contained an interview with Green, John an who at the inmate time was housing clerk In his interview, unit. Green stated that he had been his officeat end of walks when the murder occurred. Green stated that Flowers had rejected also Schlup’s separate challenging request claim the denial of his evidentiary for an hearing in the requested District Court. had hearing such a develop challenge evidence so that in turn he could failure of the grant request state court to his for a his continuance of state postconviction proceedings. Schlup requested had to ob- continuance tain additional support evidence to his claim of innocence. Court of Appeals Schlup’s held that challenge grant to the state court’s failure to Id., continuance was cognizable not in corpus federal action. at 642. that Green for had notified base of

told him to call help, after it began.17 disturbance shortly filed a traverse that Green’s arguing immediately Schlup innocence. conclusive proof Schlup’s affidavit provided statement demonstrated that contended that Green’s Schlup Be- had out after incident. a call for gone shortly help was in the showed cause the Schlup dining videotape dis- received the seconds before guards room some 65 he not have been in- could call, tress Schlup argued that Green’s in murder. Schlup emphasized volved Dade’s fabricated, because at to have been was likely statement else neither he nor interview, anyone time of Green’s call to base. of Green’s realized the significance would have of innocence with affidavits his claim to buttress tried Schlup event had witnessed the that they who stated from inmates affi- Two of those not been had present.18 and that Schlup you fall did do then? John, saw Dade what you whenever “BROOKS: I for Sgt. calling and heard Flowers out of the office I stepped “GREEN: he me to nobody Couldn’t so told get had had a fight. cause they officers Iwhat fight of the and that’s did. notify base to them call have, Re- much.” you very I John. Thank That’s all “DEARIXON: Corpus Should Why a Writ Habeas To Show Cause to Order sponse Interviews), Granted, p. of Inmate (Transcripts T Not Be Exhibit to to Flowers’ instruction for Green required respond If total time in to call response call Green’s base send out distress seconds, running top speed would O’Neal to a mere 15-17 amounted have his and still would been able to wash hands have had 8-10 seconds after distress call. room some 26 seconds dining in the to arrive Court, the record with attempted supplement Schlup In the District innocence. For attesting from inmates his affidavits several detailed inmate, an submitted affidavit Bey, a black example, Lamont Griffin fight Rodney [sic] I thing “The first saw which he stated: face, stab him. ... I and O’Neal Arthur Dade’s liquid Stewart throw time, Lloyd not friends. Schlup at that but we were Lloyd knew Griffin Affidavit of Lamont fight.” at the scene present was not 7,1993). “When this Bey happened, Griffin also stated: Bey, pp. (Apr. 2-3 I ... would not stick prison. my a lot racial tension there was normally, these circumstances but help neck out to a white under person davits Jordan —who the cell suggested Randy occupied between O’Neal and 2, who, Stewart Walk and as noted supra, above, see n. on shown at videotape arriving lunch with O’Neal—was the third assailant.

On 23,1993, without the District August holding hearing, Court dismissed second habeas and vacated Schlup’s petition execution that was then in effect. The stay District Court concluded that various did not Schlup’s filings provide cause for to raise his new claims more adequate failing Moreover, court concluded that had promptly. Schlup Sawyer Whitley, meet the failed to 505 U. S. 333 (1992), standard for that a refusal to entertain those showing claims would result in a fundamental In its miscarriage justice. discussion of the evidence, court made no com- separate ment on the of Green’s statement.19 significance filed a 7,1993,

On motion to set aside September dismissal, the order of the court’s attention to again calling Id., I I willing testify Lloyd am because know is innocent.” Schlup 4. inmate Donnell White swore an affidavit in which Similarly, he stated: guys coming way. “Three white were One of them opposite had a something tumbler that he threw face. One or two of [Dade’s] other ones started with an sticking ice-pick-type [Dade] knife.” Affidavit White, 21,1993). Donnell at 1 (Apr. White further stated: “I have seen and I know he is. He is Lloyd Schlup, definitely who one of the guys Dade____ I Arthur I jump saw know that one of the three men involved never been I know that prosecuted, Lloyd Schlup has is innocent. I barely Lloyd Schlup, know and I have no reason to lie for him. I told the that I didn’t I investigators anything see because didn’t want to in- get Id., volved.” at 3. Though ultimately the District denied motion to Schlup’s supple- record, ment the the inmate affidavits are on part appeal. record 19The District Court focused on the primarily “suspect” nature of affi Collins, long delay, cf. Herrera davits that are after a produced 506 U. S. (1993) J., 423-424 (O’Connor, concurring), that come from in mates. The court concluded that affidavits presented by Schlup, when considered against positive identifications made by Flowers and failed to constitute a Maylee, sufficiently persuasive showing actual innocence. App. filed a later, supple- Two days

Green’s statement. had located John mental motion that his counsel stating That affidavit from him. affi- and had obtained an Green20 that he had confirmed statement davit Green’s postincident affidavit also the assault. called base after Green’s shortly as the third assailant.21 identified rather than Schlup Jordan January Green prison 20 Green had been released from on Affidavit, 7,1993). (Sept. at 4 21Green’s affidavit stated: walk, Randy holding

“I Arthur Dade. looked down one and I saw Jordan Dade, standing pinned Jordan and had Dade’s arms to his sides was behind from I saw O’Neal stab Dade several times in the chest behind. Robert holding was him. while Jordan straight I him collide with

“Dade broke loose and ran toward me. saw ground paint storage Rodnie and fall near the area. Ser- Stewart geant help. Flowers I think there much noise that he hollered was so him, guards Housing didn’t think the other in the Unit heard so he told way up fight me to told call base. He was on his to break when he office, immediately picked up phone, me to I call base. went into the and called base. sergeant picked up phone.

“A at the I him base told there like, ‘OK,’ fight Housing something hung up Unit He I 5A. said Id., phone.” at 2-3. Green stated that hitting his call to base came “within seconds of Dade ground. It could have more half been than a minute or a minute Id., after he happened very was stabbed Jordan and O’Neal. It fast.” at 4. explained why

Green also witnessing he had earlier denied murder: [investigators] “I told I didn’t I [see murder] because was concerned my safety. about I know that Jordan Aryan and O’Neal were in the Brotherhood, it, and if I they easily said I saw them do could have me Id., killed.” at 3-4.

Green continued: “If trial, I had been contacted Schlup’s before I would attorney stabbed, have told his that he was not there when Dade was I would have testified that I called base within seconds after Dade hit the ground. I might have been reluctant to snitch on Jordan and O’Neal. I’m not afraid now I prison because haven’t been in for more than 7V2 years, and I have working steadily been ever since. I have no intention Id., going prison.” back to at 6. supplemental The District Court denied the motion and the opinion. motion without sought Appeals stay

Petitioner then from the Court of pending appeal. Relying of execution the resolution of his plurality opinion on Justice Powell’s Wilson, in Kuhlmann v. (1986), Schlup argued 477 U. S. that the District Court corpus petition, should have entertained his second habeas supplemented because he had his constitutional claim “with a colorable claim of Id., factual innocence.” at 454. Appeals stay

On October 1993,the Court of denied the application. opinion subsequently In an that was vacated, majority petitioner’s held that claim of innocence was governed by Sawyer Whitley, the standard announced in (1992), 505 U. S. 333 and it concluded that under that stand- Schlup’s guilt ard, the evidence of that had been adduced at petitioner’s trial foreclosed consideration of current constitu- tional claims.22

Judge Heaney Relying dissented. on affidavit, Green’s videotape, eyewitnesses, and the affidavits of four other Judge Heaney concluded that the had met both proper reading Sawyer Kuhlmann standard and a standard.23 Cf. at 331. He infra, believed that the District evidentiary hearing should have conducted an which subjected the affiants would have been to examina- credibility tion so accurately State “their could be determined.”24 petitioner’s

In the meantime, counsel obtained an affidavit Faherty, from Robert prison the former lieutenant at the Schlup passed whom way had day on the to lunch on the reprimanded murder Schlup and who shouting had out supra. Faherty’s window. 10, See n. affidavit Schlup Faherty’s stated that presence had been in for at least Delo, 22 Schlup 93-3272, 1993 No. 409815, WL (CA8, 15, 1993). *3 Oct. 23 Id., at *7. 24Id., at *5. walking Schlup at a lei- minutes; and a half that

two perspiring Schlup surely pace; or breath- “was not and that ing Fah- Affidavit Robert he was not nervous.” hard, and 1993).25 (Oct. erty ¶¶ Appeals vacated its 15, 1993, the Court

On November analy- comprehensive opinion and substituted a more earlier Schlup’srequest deny support its decision sis of the law majority stay. adhered to its earlier 11 3d 738. The for a F. appropriate Sawyer standard for conclusion that stated evaluating Schlup’s at 3d, innocence. 11 F. claim of actual opinion an extended discussion of also contained 740. particular Schlup’s The court noted new evidence. part with both his new affidavit was inconsistent Green’s testimony prison Id., and his at the Stewart trial. interview Faherty’s simply affidavit as “an at The court viewed 742. upon testimony” expand his and con- effort to embellish and permit retrial on such cluded “that a habeas court should not Id., a basis.” at 743. Heaney again concluding

Judge had dissented, actually “presented truly persuasive evidence that he is inno- therefore cent,” and that the District Court should have ad- Schlup’s Id., dressed the merits of constitutional claims. Judge Heaney argued Schlup’s also ineffective- Schlup’s ness claim was He noted that trial substantial. counsel failed to conduct individual interviews with Griffin Bey, McCoy, any investiga- or of the other inmates who told they killing. tors that Moreover, had seen the counsel failed to interview Green about his statement that he had called

25Faherty Schlup’s trial, had testified at but he had not been asked about significant of details his encounter with that are recited in his (Oct. Faherty 26,1993). affidavit. Affidavit Faherty ¶ 9 Depart left the ment of Corrections 1989. He stated in his affidavit that he had been prompted to come hearing Schlup’s forward after about through case an Id., article in the local newspaper. ¶ 11. apparently

base. In fact, counsel failed to conduct individ- any potential ual interviews with of the witnesses to the crime. Heaney

Judge Schlup’s adhered to his conclusion that though allegedly counsel ineffective, even counsel had by prison investigators.26 reviewed 100interviews conducted Judge Heaney argued that counsel’sreview of the interview transcripts demonstrating than counsel’s effective- —rather ness—made counsel’s failure to conduct his own interviews seeing with Green and the few who inmates admitted troubling. Judge attack even more id., See n. 5. Heaney Schlup’s case concluded should be remanded to hearing evidentiary the District Court conduct an if and, appropriate, Schlup’s of to address the merits constitutional claims. Appeals sug- 17,1993,

On November of Court denied a gestion rehearing Dissenting for en banc. from that denial, judges joined opinion describing question three an majority applied whether the should have the standard an- Sawyer supra, Whitley, nounced in rather than the Kuhl- question great importance mann as “a standard corpus jurisprudence.” granted 3d, at 755. We cer- F. (1994).27 question. tiorari to consider that 511 U. S. 1003 Ill preliminary important explain As a matter, it is the dif- Schlup’s ference between claim actual innocence and the transcripts The prison individual interviews conducted investigators relatively were The transcript brief: entire written investigators’ Green, example, interview with up less takes than one page. majority simple vast of the interviews consisted of statements that the interviewee had not killing. seen Dade’s 27Though the of Appeals Schlup’s stay denied motion for a execution, the granted stay day Governor Missouri Schlup’s one before execution date. The Governor then ordered a Board Inquiry to conduct clemency proceedings. proceedings Those apparently continuing. are

314 Collins, Herrera in v. innocence asserted 506

claim of actual Herrera, (1993). In advanced his 390 petitioner U. S. a novel substantive constitu- innocence to claim of support innocent the execution of an claim, namely, person tional Amendment.28 Under violate petitioner’s would Eighth Herrera, even if that had resulted in proceedings theory fair and were error and sentence entirely in his conviction render his execution “consti- innocence would his free, Id., at event.” intolerable tutionally (O’Connor, J., concurring). innocence, hand, on the claim other proce-

Schlup’s His claims than substantive. constitutional dural, rather but on his contention innocence, on rather based not his are see Strickland his counsel, ineffectiveness of v. Washington, and of evi- (1984), the withholding Brady Maryland, 373 U. see S. prosecution, dence by afforded denied him the full (1963), panoply protections how- defendants the Constitution. Schlup, criminal by to overcome that he must be- faces obstacles ever, procedural of those court address merits constitu- a federal fore may has been unable establish claims. Because Schlup tional his failure to sufficient excuse pre- “cause and prejudice” his first federal see his evidence petition, sent support McCleskey Zant, (1991),29 467, 493-494 499 U. S. if he review constitutional claims falls obtain of his only may 28 Herrera, sake of that “in a argument capital we assumed for the In of ‘actual innocence’ made truly persuasive demonstration after case unconstitutional, a defendant and render execution of war trial would process no open habeas relief if there were state avenue rant federal S.,U. claim.” 506 such a lack of diligence the District Court his Schlup argued counsel, created coupled with postconviction problems appointed (state See State, postcon 38-43 prejudice. App. established cause habeas). id., first federal (proceedings at 43-45 on proceedings); viction the Court of rejected by the District Court and argument Ap That not renew it this Court. does peals,

315 within a fundamen- the “narrow class of cases... implicating id., in- tal at claim of miscarriage justice,” Schlup’s “narrow class nocence is offered him within this only bring of cases.” claim thus in two differs at least

Schlup’s important ways Herrera. from in in- First, that claim of presented Schlup’s Instead, nocence does not by itself a basis relief. provide his claim for relief on the of his critically validity depends Brady Strickland claim of innocence claims.30 Schlup’s is claim, thus “not itself a constitutional but instead a gate- which a must way to have through petitioner pass his otherwise barred constitutional claim considered on the Herrera, S., 404; also 11 3d, merits.” U. at see F. at 740.31

More a court’s about the importantly, validity assumptions that resulted in conviction are fundamen- proceedings In Her- in different case than in Herrera’s. tally Schlup’s. rera, claim was evaluated on the that petitioner’s assumption the trial that resulted his conviction had been error free. case, In such a when a has “tried been before a of his with the full jury peers, panoply protections our defendants,” S., Constitution affords criminal at U. 419 (O’Connor, J., is an concurring), appropriate apply light In of our applied wrong conclusion that the courts below infra, evaluating Schlup’s claim, standard in gateway innocence see at 326-327, express concerning we need not Schlup’s a view the merits of underlying constitutional claims. 31In courts, his Schlup consistently submissions to the federal has ar gued that his Eighth execution would violate the and Fourteenth Amend innocent. That Herrera claim was actually ments because he rejected is in the District Court and in Appeals. the Court of In the dissent from banc, rehearing denial of en judges they three stated that per were by Judge suaded Heaney’s dissent there was “at least a substantial likelihood” that extraordinarily high could meet even the showing required by Herrera. Herrera Schlup’s claim, We denied certiorari on and accordingly express we opinion no as to its merits. id., review, standard

“‘extraordinarily high”’ (O’Connor, J., concurring).32 accompanies his of innocence

Schlup, contrast, claim at trial. For constitutional error with an assertion Schlup’s may be to the same entitled conviction reason, prod- respect degree Herrera’s, that one, such as as any of in- new evidence trial. Without uct of error-free an concededly con- meritorious of a nocence, even existence establish a sufficient to violation is not itself stitutional justice to miscarriage habeas court that allow a of would petitioner if a However, reach merits of a barred claim. the strong presents so of innocence evidence such as trial in the confidence outcome a court cannot have free that the trial was unless court is also satisfied petitioner be should error, nonharmless constitutional argue pass through gateway the merits allowed to underlying of his claims. carry

Consequently, Schlup’s need evidence of innocence (on peti- assumption less of In Herrera a burden. founded), principle, legally evi- was, tioner’s claim well enough strong dence innocence would have had be “constitutionally his make intolerable” even his execution if Schlup, product was fair For conviction of a trial. guilt to must doubt about evidence establish sufficient his justify be miscar- the conclusion that his execution would a riage justice product a his unless conviction was fair trial. full the facts fore-

Our rather statement of illustrates the going distinction between substantive Herrera claim and Schlup’sprocedural par- claim. Three items are of evidence ticularly attesting black relevant: the affidavit of inmates racially the innocence of a white defendant motivated killing; prompt describing the affidavit of Green his call

32 Herrera, In necessary appropriate to determine the stand ard of truly review persuasive because had failed to make “a ” any demonstration of ‘actual innocence’ under reasonable standard. assistance; and the affidavit Lieutenant describ- Faherty unhurried walk to the If there ing room. Schlup’s dining were no the fairness of trial, about the criminal question claim would have to fail unless the federal ha- Herrera-type beas court is itself convinced that those new facts unques- establish innocence. if tionably hand, On the other Schlup’s the habeas court were convinced that those new facts merely raised sufficient doubt about to undermine con- Schlup’s guilt fidence in the result of the trial without the assurance that trial was error, untainted constitutional Schlup’s threshold of innocence would a review of the showing justify merits of the constitutional claims.

IV this As Court has common noted, law, res repeatedly “[a]t did not attach to a court’s denial of judicata habeas relief.” “ S., McCleskey, Instead, U. ‘a renewed applica- tion could be made to other or court in the every judge realm, and each court or was bound to consider the judge to a question prisoner’s right discharge independently, and not to be influenced decisions previous refusing ” Ibid., discharge.’ Church, W. Writ of Habeas quoting Cor- (2d 1893). §386, 570 pus ed. p.

The Court has explained tolerance of early successive in petitions, the fact that part, by the writ originally per- formed only narrow function of either the testing juris- diction of the court or the sentencing of legality Executive detention. See McCleskey, 499 S., 478; U. at Wainwright v. Sykes, 433 U. (1977).33 72, S. 78 The of scope the writ later expanded its beyond narrow original purview encompass 33As this Wainwright Sykes, Court noted in v. there have been “diver gent discussions of the historic role corpus.” S., of federal habeas 433 U. 77, at n. 6. One recent commentator has perspective offered a new on the history Liebman, of the writ. See Apocalypse Next Time?: The Anachro nistic Attack on Corpus/Direct Habeas Parity, Review 92 Colum. L. Rev. (1992). 1997

318 pro in the of error had occurred review constitutional McCleskey, ceedings leading 499 S., to conviction. See U. at Wainwright Sykes, S., at That broad 478-479; v. U. 79. repeti scope ening of the writ created the risk adversely might filings by petitioners affect individual tious justice fil in the federal courts. Such administration of finality judg posed ings threat to the of state-court also comity g., See, e. principles and to and federalism. ments Murray Carrier, 477 McCleskey, S., v. U. S. 491; 499 U. at (1986). 478, 487 increasing on the federal courts alleviate the burdens

To comity, Congress finality and and to contain threat disfavoring attempted raised sec rules claims fashion example, 1966, petitions. subsequent Con For ond 2244(b) greater § ‘a gress introduce 28 U. S. “to amended C. proceed corpus finality judgments degree of in habeas ” quoting 450, Wilson, S., at ings.’ v. 477 U. Kuhlmann (1966) (Senate Re Cong., Rep. Sess., 2d 1797, No. 89th S. Similarly, in McCleskey, port); S., 499 U. at see also 9(b) Congress Govern promulgated Rule Rules Proceedings part with the Corpus to deal ing Habeas filings. problem repetitive recent deci in a number of

These same concerns resulted under the circumstances sions from this Court that delineate may in a raised second which a district court consider claims subsequent petition. decisions, the or In those ordinarily may reach held that a habeas court Wilson, 477 U. S. claims, of successive Kuhlmann merits (1986), McCleskey, claims, S., 499 U. or abusive Wainwright showing prejudice, see absent a cause (1977).34 application of cause and Sykes, 34 to those raised and grounds A raises identical petition’ ‘“successive Wilson, Kuhlmann v. on a 477 petition.” on the merits rejected prior S., 444, n. An occurs “where opinion). petition” U. at 6 “abusive (plurality files that were available but relied petition raising grounds prisoner in a or in conduct that him upon prior petition, engages ‘disentitle[s] other

319 prejudice to successive and abusive claims conformed to this Court’s treatment claims. Car- defaulted procedurally rier, 478; U. S. see also McCleskey, S., 499 U. at 490-491 (“The doctrines of default and abuse of the writ procedural identical concerns implicate nearly from the flowing signifi- review”). cant costs of federal habeas See corpus generally Sawyer, S., 505 U. at 338-340. The net result of this con- gressional action has been the in judicial habeas adoption “ of a corpus ‘qualified of the doctrine of application res judi- cata.’” McCleskey, S., 499 U. at Senate Re- quoting at 2.35 port,

At the time, same the Court has adhered to the principle is, habeas at its core, an corpus equitable This remedy. Court has relied on the nature of consistently equitable habeas corpus of strict rules of res preclude application States, Sanders v. United judicata. Thus, for in example, 1 (1963), this held Court that a habeas court must even adjudicate a successive habeas claim when required do so by the “ends of justice.” Id., see also Mc 15-17; at Cleskey, Sanders S.,U. at 495. this applied equitable even to exception under 28 petitions brought ” Ibid., States, to the relief quoting Sanders v. United he seeks.’ 373 U. S. (1963). 1, 17-19 35This Court has repeatedly noted the interplay statutory between lan guage and judicially managed equitable development considerations corpus jurisprudence. McCleskey, example, For the Court noted that the doctrine of abuse of corpus the writ of habeas “refers to a complex and evolving body equitable principles informed and controlled usage, historical statutory developments, judicial decisions.” S.,U. at Wainwright Sykes, Similarly, the Court noted its “his willingness toric modify overturn or scope its earlier views of the writ, even statutory where the language authorizing judicial action has remained unchanged.” Kuhlmann, S., 81; S., 433 U. see also 477 U. at 446-447 (explaining that expanded the Court has both and limited the scope writ); Abrahamson, Brecht (1993) (“We 507 U. S. have gaps filled the corpus of the habeas statute respect with to other matters”).

320 §of 2255 contained no § the 2255, language though

U. S. C. S., 373 at 12-15. “ends of U. reference to an justice” inquiry. in of the equitable established the importance firmly We “a trio of 1986 deci ends of in justice required quiry Sawyer, S., 505 U. at day. down on the same sions” handed Murray Wilson, 477 to Kuhlmann v. 436, U. S. 339 (referring Murray, 477 Carrier, 477 U. S. Smith 478, and v. U. S. v. Kuhlmann, seven 527). of this Court squarely In Members amendments, the 1966 that in light rejected argument no must consider ‘ends justice’ “federal courts longer S., 477 at 451 a successive U. petition.” before dismissing id., at 468-471 (Brennan, J., dissenting); (plurality opinion); Sawyer, id., also J., at 476-477 see dissenting); (Stevens, Kuhlmann, S., in held that 505 at 339 that (noting “[w]e U. to the ends of the removal of reference justice] [the despite 2244(b) § from 28 miscarriage justice U. S. C. heard”). would allow successive claims to be exception while that are Thus, successive recognizing petitions gener review, from Powell’s Justice ally precluded plurality opinion noted that there under are “limited circumstances expressly which the interests of the constitu prisoner relitigating tional claims held meritless on a prior petition may outweigh interests served countervailing by according finality 477 at prior S.,U. judgment.” Similarly, writing Carrier, for the Court observed that Justice O’Connor the Court had the cause adopted standard in prejudice because of its confidence that part that standard would pro “ vide of a adequate ‘victims fundamental mis protection ” Engle S., 495-496, at justice,’ U. quoting carriage Isaac, 107, 135 (1982); however, Justice O’Connor also noted has refused to candidly “pretend true,” Carrier, this will be always S.,U. at 496. reason, For that cases,’ the appropriate “‘[i]n principles inform comity finality of cause and concepts ‘must prejudice yield a funda- imperative correcting ” mentally unjust quoting Engle Id., at incarceration.’ Murray, also Isaac, S., 135; 456 U. see Smith v. subsequent consistently cases, In we have re S.,U. at 537. importance exception affirmed the existence and miscarriages justice. g., Sawyer, See, fundamental e. McCleskey, Dugger at at S., 339-340; S., 494-495; U. U. (1989)(Blackmun, dissenting). Adams, 401, 414 J., 489 S. v. U. miscarriage justice that the fundamental To ensure ex only ception applied would remain “rare” and would be in “extraordinary ensuring case,” while at the same time exception extend relief to that the would those who were truly deserving, explicitly miscarriage this Court tied the exception petitioner’s justice to the innocence. In Kuhl example, prisoner mann, for Justice Powell concluded that a overriding obtaining an retains “interest his release from custody charge if he is innocent of the for which he in was pris That extend, however, carcerated. interest does not guilt plain.” S., oners whose is conceded or at U. Similarly, Justice O’Connor wrote in Carrier that “in an extraordinary case, where a constitutional violation has probably actually resulted in the conviction of one who is may grant innocent, a federal court habeas the writ even in showing procedural the absence of of cause for the default.” Murray, S., 496; 477 U. at see also Smith v. 477 S., U.

quoting Carrier, S., 477 U. at 496. general rule announced in Kuhlmann, Carrier, and

Smith, and confirmed in this decisions, Court’s more recent part corpus petitions rests in on the fact that advance a substantial claim of actual innocence are ex- Friendly’s tremely Judge quarter rare.36 observation a of a 36 Indeed, neither our party any called attention to decision from a Court in which a had satisfied definition of actual inno Appeals petitioner any exist, see, g., Sargent, e. Henderson cence. some Though such decisions (CA8), 926 F. 2d 713-714 reaff’d in relevant on part rehearing, 939 (CA8 1991), Lockhart, denied, (1992); Bliss F. 2d 586 cert. 502 U. S. 1050 on suggested never one almost thing that “the century ago was innocent is that prisoner collateral attack tying true today.37 Explicitly remains largely crime” thus innocence accommo- exception of justice miscarriage and con- comity, in finality, interests systemic dates both individual overriding resources, judicial servation of case,” Carrier, “extraordinary doing interest justice at 496. S., 477 U. innocence, of justice miscarriages

In to linking addition Carrier and Kuhlmann of proof also the standard expressed In Car claims. of those consideration govern should rier, must the Court stated for example, in the resulted error “probably” show that constitutional The Kuhl innocent. actually of one who conviction mann plurality, claim the term “colorable though using be would that innocence,” petitioner factual elaborated that “‘the establish, “‘fair by probability/” required doubt have a reasonable trier the facts would entertained of "” 455, at n. S., 454, 477 U. 17. his guilt. Carrier, Kuhlmann and we did not In the years following In exception. innocence expound further on actual standard, the Court con- those few cases that mentioned Kuhlmann in on set forth rely tinued to the formulations McCleskey, Carrier. In for while example, establishing that cause and would define the situa- generally prejudice an tions in which federal court entertain abusive might an for cases petition, recognized Court exception which the has caused the constitutional violation “probably S., 494, innocent of crime.” 499 U. at conviction one Carrier, atS., 477 U. citing 1987) (CA8 on Carrier’s (relying

891 F. actual 2d innocence decision), exception ground independent an as alternative research con- firms such that decisions are rare. 37Friendly, Is on Innocence Irrelevant? Collateral Attack Criminal (1970). Judgments, 38 U. L. Rev. Chi. Sawyer, miscarriage

Then, in examined the Court justice exception applied petitioner as to a who claimed he “actually penalty.” opin- was innocent of the death In struggled ion, the Court to define “actual innocence” in the petitioner’s context of a claim that his death sentence was inappropriate. The that such Court concluded actual inno- cence “must on focus those elements which render a defend- eligible penalty.” S., ant for the death U. 347. How- defining ever, in addition to what means to be “innocent” penalty, departed of the death the Court from Carrier’s use “probably” adopted exacting proof a more standard of govern peti- these held that a claims: convincing tioner “must show clear and evidence that juror but for a constitutional no reasonable error, would have petitioner eligible penalty.” found the death added).38 (emphasis attempt S.,U. at 336 No was made in Sawyer to reconcile this stricter standard with Carrier’s use “probably.”

V evaluating Schlup’s Ap- In innocence, claim of the Court of peals applied Eighth precedent holding Sawyer, Circuit supplied proper legal Carrier, rather than standard. purported Sawyer apply The court then standard. Schlup argues Sawyer application no has to a actually who claims that he is innocent of the crime, and that Appeals misapplied Sawyer any the Court of Re- event. spondent Appeals contends that the Court of correct application Sawyer both its selection and its of the standard. Though Appeals misapplied the Court of seems to have Saw- yer,39 ground we do not rest our decision on that because we high Even in Sawyer proof standard of set forth falls short of the Jackson standard governing insufficiency habeas review of claims of Virginia, Jackson (1979) evidence. See 307, (“[N)o 443 U. S. ra tional trier of fact could have proof guilt beyond found a reasonable doubt”) added). (emphasis infra, See at 330. infra, See at 331. Sawyer standard this, the such as that in a case

conclude apply. does not justice miscarriage of stated, the fundamental

As we have finality, interests exception the societal to balance seeks judicial with the comity, resources of scarce and conservation extraordinary justice in the that arises interest individual Sawyer, prop- than Carrier, rather case. We conclude injustice is that erly the claimed when strikes that balance who of one in the conviction error has resulted constitutional actually innocent of the crime. is pose a threat to scarce less of of actual innocence

Claims comity finality principles judicial to resources and imposition solely on the erroneous claims that focus than do propriety Though challenges penalty. to the of the death routinely capital imposing are asserted of death sentence taught experience cases, us that a substantial claim has innocent the conviction of an error has caused constitutional extremely supra, person To be at 321-322. rare. See requires petitioner support alle- his credible, such a claim gations with new reliable evidence— of constitutional error trustworthy exculpatory evidence, scientific whether be physical eyewitness accounts, or critical evidence—that obviously presented Because such evidence is at trial. majority actual cases, unavailable in the vast claims of rarely pre- Even under innocence are successful. Sawyer regime, virtually every allegation case, “in summarily rejected.”40 The actual innocence has been judicial finality, comity posed by threat resources, significantly actual than that claims of innocence is thus less posed by relating only sentencing. claims greater importance, avoiding the individual interest in

Of injustice compelling is most in the context of actual inno- quintessential miscarriage justice cence. is the exe- 40 Steiker, Habeas, Innocence and Federal 41 UCLA L. Rev. cases). id., (1993); see (collecting also n. 370

325 is Indeed, cution of a who innocent.41 con- person entirely cern about the that results from conviction of injustice innocent has been at the core our criminal person long an reflected, concern is That justice system. example, our the “fundamental value determination of society far is worse to convict an innocent man than to let a guilty Winship, In re (1970) 358, man free.” 397 S. 372 go U. Starkie, (Harlan, J., See also T. Evidence 756 concurring). (“The (1824) it is maxim of the law is . . . that better than . . offenders should that one ninety-nine . inno- escape, condemned”). man should Newman, cent be See generally Doubt,” 979, “Reasonable 68 N. Y. L. Rev. 980- Beyond U. (1993). 981 of this individual inter overriding importance greater merits

est somewhat less protection imposing exacting standard on a a fundamen proof petitioner alleging tal than on one alleging that his sen miscarriage justice is too noted, tence severe. As this Court has “a standard of an instruct factfinder con proof represents attempt cerning of confidence our thinks he degree society should have in the correctness of factual conclusions for a particular Winship, In re (Har S., U. type adjudication.” 397 370 Addington v. Texas, lan, J., see also 441 concurring); U. S. (1979). 418, 423 The standard of thus reflects “the rel proof Ibid. ative attached to the importance ultimate decision.” Sawyer Though standard was fashioned reflect relative of a claim of an importance erroneous sentence, ap plication that standard to as petitioners such would insufficient give to the weight correspondingly greater injus tice that a claim of actual implicated by innocence. The 41See, g., Idaho, e. 110, Clemons v. (1991); v. 500 U. S. Lankford Mississippi, Maryland, 750, Booth 738, (1990); 494 U. S. n. 4 v. 482 U. S. Helm, 496, 509, Solem v. (1987); Gardner n. 12 277, (1983); 463 U. S. Florida, (1977) Woodson opinion); (plurality 357-358 Carolina, North (1976) 303-304, 428 U. S. (plurality opinion JJ.). Stevens, Stewart, Powell, of injustice of executing avoiding importance

paramount of the requires is innocent thus actually application one who Carrier standard.42 in Saw- us, that has reminded as the State recognize,

We to the pen- its only new standard the Court applied yer Sawyer’s responsibility of case but also to alty phase mur- of first-degree of of the offense arson, one the elements of the Sawyer This does not application fact require der.43 as as formulated Though to a case such Schlup’s. standard murder, the arson offense of first-degree element of the an claim, a That as sentence enhancer. essentially functioned like claim, from therefore, is readily distinguishable that innocent. actually raised by Schlup, petitioner one stare decisis does not, therefore, of to the doctrine Fealty facts of Carrier of the standard to the application preclude this case.44 the Carrier “probably that resulted” we hold

Accordingly, stringent Sawyer than the more standard standard rather of when miscarriage inquiry peti- must govern justice 42 Winship, course, By suggest we do not our references to that merely before a court in the as who has comes same situation one capital Having jury accused of a crime. been convicted of a been offense, Schlup longer presumption has of the of inno no the benefit Collins, cence. Cf. Herrera J., S., concurring). (O’Connor, 506 U. at 399 contrary, Schlup strong To the comes before the habeas court with a —and majority guilt. in the vast cases presumption Our conclusive — to Winship merely quite reference is intended that it is demonstrate jurisprudence with give through consistent our content a burden of understanding injustice proof to the result fundamental would from person. the erroneous conviction and of an execution innocent Sawyer, S., See U. at n. 349-350. confining Sawyer’s we Nor do more rigorous believe standard to involving eligibility claims for the sentence of death is anomalous. Our recognition significant injustice difference between the that results from an injustice erroneous conviction from an results errone permit ous sentence is in our procedural reflected decisions that reduced York, g., See, e. Williams New protections sentencing. 337 U. S. (1949). tioner been to death who has sentenced raises a claim of ac- procedural tual innocence to avoid a bar to the consideration his merits constitutional claims.

VI requires petitioner standard the habeas Carrier probably show that “a constitutional violation has resulted actually the conviction one who is 477 S., innocent.” U. requisite probability, at 496. To establish the likely must show that it is than not more that no reasonable juror light would have convicted him in the new of the evi petitioner required stronger dence. The to a thus is make showing prejudice.45 that than needed to establish At the showing likely imposes same the time, of “more than a not” proof convincing” lower burden than the “clear and stand required Sawyer. ard under The Carrier thus standard petitioner’s truly “extraordinary,” ensures that case is Mc Cleskey, providing petitioner S.,U. at 494, 499 while still a meaningful by injustice. avenue which avoid a to manifest requires petitioner “actually

Carrier to show that he is closely Carrier, innocent.” As used in actual innocence is by Sawyer. related to the definition in set forth this satisfy gateway petitioner To the Carrier standard, must likely juror show that it is more than not that no reasonable petitioner guilty beyond would found have a reasonable doubt.

Several observations about this standard are order. The inquiry Carrier standard is intended to focus the on assessing adequacy petitioner’s actual innocence. In showing, therefore, the court district is not bound admissibility govern rules of that would Instead, trial. emphasis on reviewing “actual innocence” allows the tri- probative bunal also to consider the force of relevant evi- 45See v. Washington, Strickland United States (1984); 466 U. S. v. Bagley, (1985) (Blackmun, J.); id., S. 473 U. (White, J., at 685 concurring). In- at trial. unavailable excluded or that was either

dence aspect standard, we respect of the Carrier with to this deed, inquiry Friendly’s description is Judge that believe determination appropriate: must make its habeas court The light concerning petitioner’s all the evi- “in innocence alleged illegally including admitted been to have dence, it) (but any unreliability regard and evidence with due wrongly have tenably or to have been excluded claimed only after the trial.”46 become available proceedings aof federal The consideration modify array essential of evidence does broader meaning reflects standard of “innocence.” Carrier legal system, firmly proposition, established in our guilt is drawn with reference innocence line between (1970). Winship, In See re a reasonable doubt. Sawyer, emphasis eligibility for on Indeed, with its even stray penalty, the under- the Court did not from the death eligibility standing made be determination must court Thus, whether a with reference to reasonable doubt. Sawyer, assessing penalty eligibility for under the death requisite deciding has or is whether made analysis showing must Carrier, of innocence under incorporate understanding proof beyond that a reason- legal boundary guilt and able doubt marks between innocence.47 Rev., 38 U. Chi. L. at 160. innocence, course, require in the broad Actual of does not innocence Indeed, entirely having Schlup’s situation

sense led an blameless life. provides good At in a illustration. the time of the crime at issue this case, offense, Schlup incarcerated for details of an earlier the sordid acknowledged testimony punishment phase which he in his at of his activity bearing trial. Such earlier criminal has no on whether is actually innocent of Dade’s murder. explained, supra, 313-317, Schlup's

As we have at of innocence is claim in Herrera. The stand- fundamentally different from the claim advanced today, therefore, ard that we apply application will not foreclose the analysis factual to the innocence such claims. Sawyer meaning

The of actual as formulated innocence showing merely require a rea- and Carrier does not a light evidence, the new sonable doubt exists juror but rather that no reasonable would have found the guilty. independent It is not court’s defendant the district judgment exists that the as to whether reasonable doubt requires addresses; standard rather the standard the district probabilistic court to make a determination about what rea- properly jurors peti- sonable, Thus, instructed would do. requirement tioner does not meet the threshold unless he persuades light that, the district court of the new evi- juror, acting reasonably, dence, no would have voted to find guilty beyond him a reasonable doubt. finally requires peti-

We note that the Carrier standard likely tioner to show that it is more than not that “no reason- juror” able would The word “reason- have convicted him. meaning. able” in It that formulation is not without must presumed juror fairly be that a reasonable would consider presented. presumed all of the evidence also be It must juror conscientiously obey that such a would the instructions requiring proof beyond of the trial court a reasonable doubt.48

48The the Carrier standard is suggests Chief Justice “a classic Post, mixing apples standard, however, oranges.” at That is mixing apples no more a oranges adopted by than is the standard Sawyer. Sawyer, S., (requiring peti the Court See 505 U. at 336 “by that, tioner show clear and convincing evidence for a but constitutional error, juror no reasonable petitioner eligible would have found the “ ” penalty”). Though likely death it is true that than not’ ‘[m]ore “quintessential charge post, fact,” equally to a finder of that is true of the “clear and convincing evidence” component Sawyer formulation. There is thus no reason to believe that the Carrier standard is any more Sawyer Post, likely than the standard to be “a source of confusion.” at 339. accept

Nor do we of the Carrier description Chief Justice’s “hybrid.” Post, standard as a at 339. Finders of fact often are called upon predictions to make likely about hypothetical actions of “reason- Thus, able” application actors. likely of “more than not” to the habeas court’s jurors assessment of the actions of reasonable illogical is neither nor unusual. the Carrier show- substantial standard requires

Though the standard of Jackson no means equivalent is ing, Virginia, review of (1979), that governs 443 U. S. The Jackson standard, evidence. insufficient claims of have could rational juror whether any on focuses which evidence is sufficient there to whether convicted, looks The Jack- the conviction. credited, could which, support if ways son standard least two important differs in at thus Jackson, the as- First, under Carrier standard. from beyond of witnesses generally of the credibility sessment stand- contrast, under the gateway In of review. the scope evidence may the newly presented we describe today, ard of the witnesses pre- the credibility call into indeed question have court case, may the habeas In such sented at trial. Second, and more assessments. credibility to make some under of the is different the focus inquiry fundamentally, Jackson, than under Carrier. Jackson of the Under the use of the trier of on the inquiry power “could” focuses word Carrier, of the use reach its conclusion. Under fact to behavior of on the likely “would” focuses inquiry word the trier fact. “more than not”

Indeed, likely our adoption phrase Jackson, this distinction. Under question reflects to make a finding guilt whether the trier of fact has power Either the trier of fact has a binary response: power requires Carrier, of law or it does not. Under as a matter contrast, habeas court must consider what reasonable of fact are to do. this in- probabilistic triers Under likely standard such it makes sense to have a probabilistic quiry, under Jackson Thus, as “more than not.”49 likely though the mere existence of evidence to convict would be sufficient claim, is not true determinative under petitioner’s Carrier. Sawyer convincing” adopted The “clear and standard reflects this understanding inquiry.

same of the relevant Eighth application We believe that the Circuit’s erroneous Sawyer of the standard below illustrates this In difference. determining Schlup satisfy Sawyer had failed to majority prison standard, the noted officials, that “two who eyewitnesses positively were to the crime, identified Mr. Schlup perpetrators as one of the three of the murder. This clearly except evidence was admissible and stands unrefuted Schlup questions credibility.” extent that Mr. now its 3d, F. majority then continued: “[Ejven disregard if we the source of the new evidence, pres- the eleventh-hour nature of the information, coming years entation almost six trial; after the it is simply possible say appellant that the has shown by convincing clear and evidence that but for a constitu- jury error no tional reasonable would have found him guilty.” Ibid. Schlup’s

However, evidence includes the sworn statements eyewitnesses Schlup of several was not involved in the Schlup presented Moreover, crime. has statements from Faherty Green that cast doubt on whether could participated have in the murder and still arrived at the din- ing room 65 seconds before the distress call was received. may, Those new statements course, be unreliable. But if they Appeals are true —as pur- the Court of assumed for pose applying understanding Sawyer its of standard— surely juror, conscientiously cannot following be said that a judge’s requiring proof beyond instructions a reasonable proper application doubt, would vote to convict. Under a Sawyer petitioner’s showing either Carrier, or of innocence solely is not insufficient because the trial record contained support jury’s sufficient evidence to verdict. application

In this case, the of the Carrier standard arises request evidentiary the context of a hearing. for an In applying request, the Carrier standard to such a the District newly presented probative force

Court must assess guilt adduced at with the evidence evidence in connection required to test the Obviously, court is not new trial. deciding appropriate a motion for a standard evidence Agosto summary judgment. INS, Cf.

(1978) (“[A] grant summary generally cannot district court credibility of judgment on assessment of the the based its Liberty Lobby, Inc., 477 presented”); Anderson v. evidence (“[A]t (1986) summary judgment stage 242, 249 U. S. weigh judge’s himself to the evidence and de function is not but to determine whether the truth of the matter termine trial”). may genuine Instead, for the court there is a issue likely timing submission and the how the of the consider reliability probable credibility of of the bear on the affiants that evidence. Appeals District of and the Court

Because both the Court improper standard, an further the record under evaluated necessary. of the proceedings The fact-intensive nature are ability together to take tes- inquiry, the District Court’s with key timony if it deems that course from the few witnesses expeditious procedure the most advisable, convinces us that Appeals of the be va- is to order that the decision Court Appeals the case be remanded to the Court cated and that to the District Court for further with instructions to remand opinion. proceedings with this consistent

It is so ordered. O’Connor, Justice concurring. dissenting light opinions, explain, what

I write to it does I to decide and what not. understand Court that, in to have an abusive or holds order petitioner merits, heard on the successive habeas claim prejudice cannot cause and “must show who demonstrate likely juror it is than not that no reasonable more light newly have him” in would convicted discovered Ante, evidence of This innocence. standard is

333 higher required prejudice, requires than that which only probability that, errors, “a reasonable absent respecting the factfinder would have had a doubt reasonable guilt,” Washington, v. Strickland (1984). pass through gateway Instead, does not by Murray Carrier, erected 477 U. if the S. (1986), likely court district believes more than that there juror reasonably, any acting who, is have would found beyond petitioner guilty reasonable doubt. And inquiry likely which focuses the on standard, Court’s jurors, substantively behavior different from the ra- tionality Virginia, standard Jackson U. S. emphasizes authority Jackson, which the fact- (1979). finder make the evidence, conclusions from establishes a sufficiency standard of for the review of record evidence—a proof, standard that be ill would suited as a burden of see Pipe Cal., Concrete & Products Inc. v. Construction Cal., Laborers Pension Trust Southern 508 U. S. 602, today The Court does not sow confusion in (1993). 624-626 properly justice Rather, the law. it balances the dictates of exception with the need to ensure that the actual innocence “ ” only ‘safety ‘extraordinary remains a valve’ for the case,’ Reed, Harris v. 489 U. S. 255, (1989) (O’Connor, J., concurring).

Moreover, not, does not, Court and need decide miscarriage justice exception whether the fundamental discretionary remedy. paradigmatic It is abuse of dis- judgment for a cretion court base to its on an erroneous view Corp., the law. See Cooter & v.Gell Hartmarx 496 U. S. Having decided that the district com- (1990). court 384, 405 legal by relying mitted error, and thus abused Its discretion, Sawyer Whitley, on v. U. S. instead of Mur- 333 (1992), ray supra, ques- Carrier, v. the Court need not decide the argued by parties passed upon by tion—neither nor Appeals proper Court of abuse of discretion is the —whether reversing judgment standard of In review. of the Court Appeals, does not therefore, disturb tradi- area, district courts this nor tional discretion of does appellate speak to the standard of review for such judgments. join opinion. observations, I these Court’s

With Rehnquist, with whom Justice Ken- Chief Justice nedy Thomas and Justice dissenting. join, a show- that the threshold standard for

The Court decides or ing “actual innocence” a successive abusive Murray petition Carrier, forth in 477 U. S. 478 is that set (1986), Sawyer Whitley, set rather than that forth (1992). out, which I later I believe For reasons set guilt applied Sawyer to claims of or standard should be petitioner’s challenges as sentence. well as innocence exegesis of the importantly, I believe the Court’s But, more suggested down standard standard both waters Carrier inevitably create in the case, will confusion in that courts. lower February white inmates attacked and three

On trial, Arthur Dade. At testi- a black inmate named killed Maylee Roger mony Sergeant and Officer Flowers John inmate Rodnie Stewart threw a container indicated that steaming liquid jumped face, Dade’s on Dade’s into rendering defenseless, him and inmate Robert O’Neal back proceeded to Dade to death. Petitioner’s trial counsel stab eyewitness attempted to discredit both identifications. As argued Sergeant that Flowers had Flowers, counsel petitioner’s brought less hour be- a into cell than an visitor stabbing, and, therefore, Flowers had “on the fore the attempted Trial counsel to dis- brain.” Trial 493-494. Tr. Maylee Maylee’s arguing that credit Officer identification properly far scene was too from the view incident. Through discovery, petitioner’s trial counsel uncovered a videotape petitioner first is the inmate to enter the which petitioner minute five seconds cafeteria. One after appar- group guards run out cafeteria, enters Twenty-six response later, seconds ent to a distress call. entering trial cafeteria. Petitioner’s O’Neal seen videotape petitioner argued that that the established counsel in- because there was not have committed the murder could the crime and arrive at the time for him to commit sufficient prior to the distress one minute and five seconds cafeteria presented two alibi wit- Petitioner’s trial counsel also call. petitioner had walked in front of nesses who testified that without incident. them to the cafeteria conflicting jury evidence, determined The considered this story petitioner’s him of credible, and convicted was not sentencing component capital During trial, murder. prosecution presented there were two stat- evidence that imposition utory aggravating that warranted factors place penalty: petitioner murder in a death committed the history petitioner had substantial confinement, lawful convictions. As to the second of serious assaultive criminal testimony presented aggravating prosecution factor, the brutally petitioner weeks, beaten, tortured, and for two had county jail. prosecution The also sodomized a cellmate testimony aggra- presented was convicted slitting cross- vated assault for a cellmate’s throat. On prior petitioner presented examination, his version of the rejected jury peti- evidence, incidents. considered this story, tioner’s and returned a sentence of death. appeal, Supreme petition-

On the Missouri affirmed Court er’s conviction and Petitioner then filed death sentence. claiming, among things, proceedings state collateral other failing present that his trial counsel was ineffective for failing investigate fully additional alibi and for witnesses the circumstances of the murder. The Missouri Circuit petitioner’s provided Court determined that counsel effec- Supreme tive assistance of counsel.' The Missouri postconviction affirmed denial of relief. petition claim- habeas filed his first federal

Petitioner then guilt ing at both the and was ineffective his trial counsel Though previously penalty phases he refused of trial. participant alleged identify Randy in the third as the Jordan failing for to call his trial counsel faulted murder, re- Randy The District denied witness.1 as a Jordan Eighth Appeals panel the Circuit A of the Court lief. petitioner’s had trial counsel merits that on the concluded guilt penalty phases or of trial.2 the not been ineffective at by panel’s sought en decision the review of the Petitioner judge questioned panel’s Eighth court. No Circuit banc provided petitioner’s effective trial counsel conclusion during guilt phase of of counsel trial. assistance petition, again Petitioner filed a second federal claiming was ineffective at both that his trial counsel supplemented guilt penalty phases Petitioner of trial. filing inmate, from a former John this with an affidavit timing related to the of the distress Green’s affidavit Green. statement, swore that In his most recent Green Ser- call. geant way up fight on his to break when Flowers “was immediately office, went into the he told me to call I base. up App. picked phone, and called base.” 122.3 Under “[d]efense The Missouri Circuit Court found that counsel did not inter Randy Jordan, alleges participant view whom Petitioner now was the third charged, in the murder with which the Petitioner was because the Peti maintaining tioner while someone else committed acts attributed to him, give person refused to Schlup the name of that his counsel.” Delo, Respondent’s J, pp. Exhibit 49-50. Judge Heaney only majority’s Senior Circuit took with issue conclu petitioner’s sion that trial counsel had rendered effective assistance at the Armontrout, (1991) penalty phase 631, 642 Schlup trial. Cf. 941 F. 2d (“I disagree with the court’s prejudiced conclusion that was not during penalty phase”) his counsel’s (dissenting ineffectiveness opinion). day On the prison investigators the incident Green told that he had trial, oath, observed the murder. At Stewart’s while under Green testified that he fight place saw no actual take made no mention of his call to App. base. 140. Green now also swears that he “called base .. . hitting Id., within seconds of ground.” Dade at timing sequence, petitioner “ha[d] this submitted that he produced proof, which could not have been fabricated, that [in guards cafeteria] responded the call to which the the stabbing.” Id., came seconds after the at 100-101. Fur- petitioner testimony claimed that thus ther, “Green’s makes any impossible, evidence, under view of the for thirty participated in for have Dade’s murder: seconds to a videotape plainly the distress shows call, minute before dining quietly Lloyd Schlup prison getting room, in the his petitioner’s Thus, Brief for Petitioner claim of lunch.” 12. assumption depends, part, innocence” on the “actual responded in the cafeteria to Green’sdistress call the officers hitting ground.4 seconds” of Dade “within petitioner’s peti- The District Court denied second conducting evidentiary hearing. an on without While tion supplemented petition appeal, petitioner his habeas with an Faherty, prison affidavit from Robert a former additional guard previously petitioner’s at trial. A who testified di- Eighth applied Sawyer panel stand- vided Circuit gateway petitioner’s ard to claim of “actual innocence” and failed to meet that determined standard. Eighth rehearing granted Circuit denied en banc. We showing when, of cause certiorari determine absent O’Neal, problem theory undisputed participant One with this is that an murder, after the guards responded entered the cafeteria seconds argument: you to the distress call. As at oral respondent explained “[I]f immediately upon body believe that radioed in the time of the [Green] . . then look and there is 26 seconds falling you videotape, only . at made supposedly between the time that that call was Green and the downstairs, time that O’Neal comes into the cafeteria and all of the evi O’Neal, the admitted impossible dence this case shows it’s murderer down, window, . . . to have run . . . broken a thrown the knife out the cafeteria, window, back, go[ne] come washed his hands ... and down to the you present controlling, hold Green’s statement as the murder never if added). Thus, occurred.” Tr. of Oral 30-31 as the Arg. (emphasis Court ante, at acknowledges, delay n. there was a between the time of the murder and the time that the in the cafeteria guards responded distress call. court consider the merits of a district may

and prejudice, successive habeas U. S. 1003 an abusive or petition. (1994). Wilson, 477 U. (1986), Kuhlmann the Court

In S. entertain a a federal court could successive examined when A determined that habeas petition. plurality ” “ a district court to entertain ‘ends justice’ required where the of an otherwise defaulted the merits petition claim with a show his constitutional prisoner supplemented Id., After of factual innocence. citing Judge ing innocence, of factual definition Friendly’s plurality the Court should not that District determined summarily because the evidence Wilson’s have entertained petition ” “ Id., case had been of his ‘nearly overwhelming.’ guilt at 455. Carrier, court determined that a federal the Court

In un- defaulted habeas not review a petition could procedurally for both cause the default demonstrated less petitioner from error. the constitutional well as resulting as prejudice Carrier Court, however, 492.5 The left S., open 477 U. at case, a federal that in a truly extraordinary possibility and excuse a failure to establish cause court habeas might “ has re- ‘a constitutional violation probably where prejudice actually innocent.’” who conviction of one is sulted added). Ante, atS., at 477 U. (emphasis quoting Sawyer, detail we described some In showing when habeas petitioner brings actual innocence required successive, abusive, or defaulted otherwise an procedurally sentence, rather his death claim challenging imposition There S., the crime. 505 U. at 339-347. his than guilt the death that innocence of the Court penalty, emphasized not be the contention that “cause need rejected The Court explicitly shown,” is even claims if where the constitutional prejudice shown actual legal guilt." reliability of an adjudication into question “callfed] Isaac, S., added); see also Engle (emphasis 477 U. at 495 (1982). “ ” very counterpart, like its innocence’ is “a narrow ‘actual exception,” order “workable must and that in to be be objective subject relatively to determination standards.” petitioner Id., Thus, at 341. we concluded that habeas challenged peti- who his sentence in an otherwise defaulted “by convincing show tion must clear and evidence but juror [have error, for no constitutional reasonable would petitioner] eligible penalty.” Id., found the death at today similarly We have never until out had to flesh standard “actual innocence” in the context of a habeas petitioner claiming agree I Thus, innocence the crime. question govern that the of what threshold standard should open disagree is an I earlier, one. As I have said with the Sawyer, provides Court’s conclusion Carrier, proper troubling But far standard. more than the choice Sawyer confusing of Carrier over is the down watered up by version of Carrier which served the Court. satisfy As the Court notes, Carrier “ prob- must demonstrate ‘a constitutional violation has ably actually resulted in the conviction of one who is inno- 496). (quoting supra, Ante, Carrier, cent.’” at 327 showing Court informs us that a of “actual innocence” re- quires likely a habeas to “show it is more than juror not that no reasonable would have convicted him in the light of the new Ante, evidence.” is at 327. But this a mixing apples oranges. likely classic of and “More than not” quintessential charge is a fact, to a of finder while “no rea- juror light sonable would have convicted him the of the equally quintessential new evidence” is an of law conclusion constantly employ similar to the standard that courts de- ciding judgment acquittal motions for of in criminal cases. hybrid up which the Court serves is bound to be a source presented of confusion. Because new not evidence at trial always will almost be involved in these claims of actual inno- legal judgment acquittal cence, the standard for cannot bodily transposed inno- the determination “actual for be modify famil- be to course would cence,” but the sensible a than create 341-342, rather to standard, infra, see iar hybrid. confusing elaborating standard, the the Carrier

In the course point pains stand- out that it differs from the to takes (1979), Virginia, 443 U. v. S. enunciated Jackson ard sufficiency to con- of the evidence meet the the for review of beyond proof a reasonable doubt. stitutional standard question whether, after Jackson, “the relevant Under light prose- viewing most favorable to the evidence in any have the essen- trier of fact could found cution, rational beyond Id., a the crime reasonable doubt.” tial elements of analy- retrospective solely requires a at 319. This standard jury reflects of the evidence considered sis “responsibility healthy to respect for trier of fact’s ... testimony, weigh evidence, in the resolve conflicts facts ultimate inferences from basic to draw reasonable facts.” Ibid. acknowledge expressly the fails to similarities

The Court adopted stand has and the Jackson between the standard it reviewing A a claim of actual innocence ard. habeas court Estelle, slate. v. does write on clean Cf. Barefoot (1983)(“Federal which courts are not forums in 880, 887 trials”); relitigate Collins, Herrera 506 U. S. state (“[I]n (1993) proceedings is the state criminal trial determining paramount guilt or innocence of event (1977) defendant”); Sykes, Wainwright 433 U. S. (“Society’s [the state resources have been concentrated at fallibility, trial] in decide, order to within the limits of human citizens”). question guilt innocence one of or its acknowledges, petitioner making a Therefore, as the Court satisfy claim of actual innocence under Carrier falls short of ing reviewing any his burden if the court determines that juror reasonably petitioner guilty would have found supra, ante, at 329; Jackson, crime. See cf. at 318-319. presented by claim of innocence in The situation actual petition obviously pre- a federal is different from habeas analyzing habeas an “ac- sented in because the court Jackson body with a tual innocence” claim is faced evidence original supplemented The review- has been since trial. ing predict new court somehow the effect that this evi- must ju- have of reasonable dence would had on the deliberations necessarily weigh rors. It must this new evidence some may credibility manner, and need to make determinations as original jury. appear to witnesses who did not before the evidence, This new is not a license for the review- however, ing disregard presumptively proper court to determina- by original tion trier of fact. properly

I in Jackson, think the standard enunciated modi- body fied of the different of evidence that must be because faithfully language in Carrier. considered, reflects the used initially judge should consider on the habeas the motion parties. basis of the written submissions made As suggests, the Court will be able to resolve the courts great majority routinely of “actual innocence” claims without any evidentiary hearing. ante, at fact is im- See 324. This portant Sawyer: every day because, as we noted in “In the capital penalty proceedings, context of a federal district judge typically presented will be with a successive or abu- petition days day sive habeas before, few or even on the only of, a scheduled will execution, and have a limited time to determine whether a has shown that his case exception falls within the ‘actual innocence’ if such a claim (footnote omitted). S., made.” 505 U. at 341 highly But in unusual case where the district court believes on the basis of written submissions that the neces- sary showing may of “actual innocence” be made out, evidentiary should hearing conduct limited at which the testimony affiants whose the court believes to be crucial to showing present may actual innocence are be veracity, reliability, cross-examined as to and all of the other elements that affect the to be of weight given testimony a witness. After such a the district court would hearing, as be in as make the good position possible required as to the of actual innocence. determination showing state of our habeas less than The jurisprudence present but decision adds ideal in its complexity, today’s needlessly I Sawyer believe that by that complexity. adopting and on the both for attacks on the sentence standard judg in the direction conviction, ment we would take of step See v. Keeney Tamayo- this jurisprudence. simplifying (1992) of uni 101, Reyes, (noting importance in the of habeas The standard Sawyer law corpus). formity in fi the State’s interest strikes the balance proper among Zant, 467, (1991), 491-492 v. 499 U. S. nality, McCleskey e. federalism, g., see, federal courts’ respect principles (1989) Lane, v. 489 U. S. Teague (plurality opinion), side —a sufficient on and “the ultimate equity prisoner’s Williams, Withrow innocence,” 507 U. S. of actual showing (1993) 680, 700 J., dissent concurring (O’Connor, part fully petition-' analyzed ing Appeals part). determined fell way er’s new evidence and “ clear evidence short of and convincing [that] ‘showing by ” 11 him no would find murder].’ reasonable juror [guilty 348). (CA8 1993) 738, 743 at supra, F. 3d (quoting Sawyer, I would and therefore affirm. agree Carrier standard, if we are should

But adopt standard contained in the be the confusing exegesis on a modified It should be based version Court’s opinion. Jackson defined area which the Virginia, with clearly hold an court exercise its discretion to eviden- district may tiary hearing. Thomas

Justice with whom Justice Scalia, joins, dissenting.

A federal statute entitled of Determination” —to “Finality § be found at 2244 of Title United States Code— specifically problem addresses the subsequent of second and petitions for the corpus. writ of habeas The reader of to- day’s opinion will be knowledge unencumbered with of this law, since it is not there quoted, discussed or and indeed is only passant. cited en ante, See 320. Rather than asking says, what the statute even or what we have said the says, statute only the Court asks what is the fairest standard apply, question by and looking answers that to the various semiconsistent standards articulated our most recent de- minutely parsing phráses, seeking and shades of cisions— meaning in the interstices of sentences though words, and as judicial opinion a discursive were a pro- statute. I would differently. very ceed by Within the broad limits set the § Suspension Clause, Const., I, 9, Art. cl. the federal corpus governed by writ of habeas is statute. Section disposition case; controls this the plain it announces is enough, nothing and our justify decisions contain that would departure plain meaning. from that 2244(b)provides:

Section evidentiary hearing “When after an on the merits of a hearing material factual or issue, after a on the merits person custody pursuant of an issue of law, a to the judgment of a by State court has been denied a court of justice the judge United States or a or of the United custody remedy States release from appli- or other on an corpus, subsequent applica- cation a writ of habeas a corpus tion for a writ person of habeas in behalf of such need not be entertained a court of the United States justice judge or a or ap- of the United States unless the plication alleges predicated and is on a factual or other ground adjudicated hearing not ap- on the of the earlier plication for justice, the and writ, unless the court, or judge applicant is satisfied that the has not on the earlier application deliberately newly withheld asserted ground or otherwise abused the writ.” federal district long difficult one. A sentence, but not a A subsequent petition for the or a second court that receives prior petition corpus, been denied has when of habeas writ (i dismiss) may entertai[n]” e., “need not. . . merits, on the (to use shorthand petition neither our unless terminology) also Habeas nor abusive. See successive (“A 9(b) may petition be Corpus or successive Rule second allege judge or that it fails to new if finds dismissed .”). Today, grounds however, for relief . . different unmistakably pronounces obliquely that a succes- but may petition be not must entertained or abusive sive sufficiently long petitioner makes a be so as dismissed miscarriage showing persuasive “fundamental (“[I]f petitioner justice” Ante, at such has occurred. Schlup presents [adequate] of innocence . . . as evidence gateway through pass be allowed should merits”); argue ante, at 319-321.1 That conclusion required by flatly our statute, and is contradicts precedent. legislated Congress cases, from an era before earliest

Our adjudication, govern finality held that to of habeas rules petitions disposed were “to be of in the successive or abusive judicial guided a and controlled exercise of sound discretion by bearing of whatever has a rational on the a consideration sought,” propriety discharge weighing of the when give “controlling the district could those considerations court discharge application.” weight” prior to “a on a like refusal (1924)(successive Salinger peti- Loisel, 224, 265 U. S. 231 not, not, The claim that “the Court does and need decide whether the exception miscarriage justice discretionary remedy,” fundamental is ante, (O’Connor, J., concurring), in my at 333 is not view an accurate description opinion says. what the Of Court’s course concurrence’s merely making it to be description the claim causes an accurate of what holds, today ground by since the one narrower taken of the a five-Justice Marks comprising majority Justices becomes law. States, (1977). 188, 193 United U. S. tion); see also Doo States, v. United Wong (1924) (abusive 240-241 In the Court petition). Salinger par “Here the noted: refusal ticularly prior discharge [the a court of coordinate by and was prisoner] jurisdiction in a affirmed considered a Circuit Court of opinion by Ap Had the District Court of the later peals. disposed applica tions on that its discretion would have been ground, well exercised and we should sustain its action without saying S., more.” 265 U. at 232. Section 2244 is no more and no than a codification of this less It is one of the approach. ironies of decision that today’s Court not disheartening statute, but in so denies district merely disregards doing discretion that the Court itself en judges very freely to them before trusted Congress spoke.

In 1948 for the first time addressed the Congress problem repetitive petitions by enacting predecessor § current which as follows: provided “No circuit or district shall be to enter- judge required tain an for a writ of habeas application corpus inquire into detention of a to a person pursuant judgment a court of the States, United or of if State, any appears that the of such detention has been legality determined or court of the United States on a by judge prior appli- cation for a writ of habeas and the corpus petition pre- sents no new not theretofore and de- ground presented termined, and the or court judge satisfied ends will not be served such justice inquiry.” (1964 ed.) added). §2244 U. S. C. (emphasis This States, construed Sanders v. United provision (with 1 (1963), was held unimpeachable logic) to mean that be to denial of a “[c]ontrolling weight may given for federal habeas prior application 28 U. [under S. C. corpus (1) if the same §2254] only the subse- ground presented was determined quent to the application adversely applicant (2) on the prior application, determination was on prior (3) would be served justice the ends merits, Id., application.” of the subsequent the merits by reaching time in our deci- for the first there Thus, at 15. appeared court has “the duty” to reach that a habeas sions the notion “if the ends of justice a petition the merits of subsequent id., for the 18-19—and demand,” appeared perfectly written, as such statute, then imposed that reason good the Sanders Court added even as that duty a And to duty. well do the Court would today “final a qualification” to remember: a on hearing . . . denial

“The governing principles sound discre- are addressed successive application is re- Theirs the major tion the federal trial judges. and sound administration for the sponsibility just must be the remedies, judg- and theirs federal collateral successive application to whether a second or ment as of the merits.” consideration shall be denied without Id., at 18. Sanders, amended however, Congress

Three after years §2244 rules for federal finality prisoner to establish different §2255) (filed under and state prisoner petitions petitions (filed §2254). which addresses 2244(a), peti- under Section tions retains “ends by justice” pro- federal prisoners, 2244(b) it, restrict- statute; § viso from the old but omits thus obligation ing district courts’ to entertain petitions state succes- to cases where neither prisoners petition sive nor this not- abusive. One have might expected so-subtle in the statute would our interpreta- change change Sanders tion of we it, and that would modify by holding could its control- give district court exercise discretion ling to the denial —which was course weight prior pre- Salinger cisely what envisioned. 2244(b) construed, §

Yet new when the version of was first Wilson, Kuhlmann (1986), 477 U. S. 436 plurality Court announced that it would “continue on rely ” reference in Sanders to ‘ends of at justice/ S., 477 U. 451, and concluded that “the ‘ends of federal justice’ require courts to entertain where the petitions only pris- [successive] oner his constitutional claim with a supplements colorable Id., of factual innocence.” at 454. That conclusion showing contains two The first is complementary propositions. not reach a habeas court merits of a may barred claim unless shown; actual innocence is this was the actual judg- (one ment of the cannot opinion since the say holding, id., was a mere opinion at 455 plurality). See (stating the District Court and Court of have should dis- Appeals missed the successive because the petition petitioner’s claim meritless). innocence The second is must court hear a claim of actual innocence and reach the merits of the if the petition claim is sufficiently persuasive; this was the It purest dictum. is the Court’s prerogative that dictum but to it adopt without as today, adopt analysis, do. The Kuhl- it were not though will binding precedent, mann lacks as plurality and, formal status opinion authority, as below, discussed no of this Court us binds to it. holding A decision follow it must be not by reason, justified simply asserted will. by of the Kuhl-

And if reasons are to be given, justification mann will be opinion found difficult indeed. The plurality’s 2244(b) central is theory § that “the permissive language gives federal courts discretion to entertain successive peti- tions under some circumstances,” so that ‘rare “[u]nless [the] instances’ which successive will be [in petitions entertained] are to be identified whim or district must caprice, judges be given guidance when to exercise the lim- determining ited 2244(b).” discretion granted § them by S., See 477 U. 451. What the then do, however, plurality proceeds to “guide” the discretion, but to eliminate entirely, dividing the entire universe of successive and abusive into petitions that must not be entertained those (where no there is show- innocence) ing and those that must be entertained (where showing). This converts a statute redolent there is a such entertain”) (“need rigid permissiveness into a command.2 not caprice plurality’s concern about is met— The Kuhlmann by to committed law the discre it is all decisions as met for by applying traditional “abuse-of- tion of lower courts— judge who dismisses a successive standards. A discretion” question petition law, be some because he misconceives religion, petitioner’s he or because cause he detests golf, may judge play A who dis be reversed. would rather petitioner’s petition is the because it misses a successive twenty-second, “only pur second, his because its rather than delay,” supra, pose Sanders, 18, or vex, harass, is to or to frivolous claims can be seen be because the constitutional any papers of the numerous considera on the face of the —for propriety bearing of the “a on the tions that have rational (emphasis discharge Salinger, sought,” S., 265 at 231 U. added) may be to reach the merits because commanded — justice” require. law, Here as elsewhere in the “the ends of say may judge his to that a district not abuse discretion merely question (dismissing say a suc to that the action considering may petition) rele cessive not be done without giving “justifying reason,” vant a Foman v. factors and (1962). Dredg Davis, 178, 182 371 See also American U. S. (1994). ing Miller, 510 It is failure of Co. U. S. v. logic, arrogation authority, “guide” and an that discre by holding Congress tion that what authorized the district may court do not be done at all. requirement imposed assumption

The Court’s plurality the Kuhlmann should be taken as can find law support subsequent no in our To be some sure, decisions. supposed duty cases restate the course of historical surveys g., McCleskey See, Zant, area. e. 499 U. S. present not, course, present question case does whether Kuhlmann plurality wrong identify category of petitions must not disposition compatible be entertained —a is at least with 2244(b). § text of (“Kuhlmann . . . federal courts (1991) required supple when successive petitions to entertain showing ‘colorable with a claim ments a constitutional ver ”). upon if are to lavish But we factual innocence’ more appropri detailed attention of our biage opinions (and the cases itself, more of statute reserved for the ately cases) some of the same the miscarriage-of- have described than a rule of rather as a rule of permission doctrine justice Whitley, Sawyer g., 333, 339 e. See, obligation. (“[Kuhlmann ex (1992) miscarriage justice held that] Mc allow successive heard”); be claims to would ception Cleskey, the author (“Federal courts retain S., at 494 499 U. ity of miscarriage of fundamental the writ cases to issue [in id., at 494-495 (“If cause, cannot show justice]”); may none in an earlier petition to raise the claim the failure fundamental that a if he or she can show be excused theless to entertain from a failure result of would justice miscarriage Murray Carrier, 477 U. S. (1986) 478, 496 claim”); resulted (“[W]here has probably a violation constitutional federal ha innocent, a actually of one who is the conviction may of a show in the absence even court the writ beas grant default”) added (emphasis cause for the of ing procedural all quotations). or as little au- as much the latter cases

Of course provide as the former the statute for reading thority right there is The truth is reading. the wrong provide this handful of in this scattering phrases, simply nothing most the conscience which even and assumptions, by silences in matters of stare decisis could count itself scrupulous Kuhlmann has the either for in no case after bound way; obligation 2244(b) entertain § creates an whether question to the deci- been necessary successive or abusive petitions McCleskey Sawyer In the Court affirmed sion. both and that had dismissed of lower courts judgments McCleskey, supra, Sawyer, supra, at 338; at See petition. announce as a not, not, and did 503. Those decisions could petition revers- can be holding entertain refusal to ible error. reading statute, advancing a different than

Rather only response all of this: gives one in essence the Court corpus product “the federal habeas that the law judicially statutory language man and interplay between This equitable Ante, at n. aged considerations.” things, might the first vague of two mean one talk sort of might mean that It inadequate, unconstitutional. the second ambigu gaps corpus with is riddled statute the habeas by process traditionally filled or clarified we have ities that easily statutory interpretation into a sort that shades g., Abrahamson, 507 Brecht See, e. common law. federal (1993). assuredly enough. There That is true 619, 633 cor many legal questions on which the however, are, ambiguous; unless pus nor is neither silent statute silent or question which the statute is this case is one on (in why explain ambiguous should which event the Court so), response hand, the other is irrelevant. On that is something altogether might response dif mean the Court’s alarming: stat that even where the habeas and more ferent clearly question speak hand, it is but one to the at ute does to resolution of ante, 319, 35, n. relevant “consideratio[n],” question. inherent that federal courts have no Given parte power Bollman, writ, Ex Cranch to issue (1807), response would be unconstitutional. See 94-95 VI, Const., Art. cl. 2. duty escape route of from the There is thus no Court’s say, today. does, confront the statute I would as the statute that habeas courts need not entertain successive or abusive petitions. The courts whose decisions we review declined petition, and I find no to entertain the abuse discretion agree they the record. with The Chief (I Justice Whitley, Sawyer supra, legal were correct to use as the determining standard for claims of actual innocence. See ante, 334.)3 “we sustain action Therefore, should [their] Salinger, S., without 265 U. at 232. more.” saying I reasons, For these dissent. respectfully they that, Even if wrong were it would not be correct to conclude judgment ante, necessarily must be reversed. See at 333-334 (O’Connor, J., concurring). Our habeas cases have not so held. See Wong States, Doo (1924) United (affirming 265 U. S. even though “the applying courts below erred in res the inflexible doctrine judicata” to dismiss an petition, abusive because “it does not follow that judgment reversed; should be plainly appears for it that the situation where, according was one judicial discretion, to a sound controlling weight refusal”). given must have prior been to the

Case Details

Case Name: Schlup v. Delo

Court Name: Supreme Court of the United States

Date Published: Jan 23, 1995

Citation: 513 U.S. 298

Docket Number: 93-7901

Court Abbreviation: SCOTUS