The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_7901/93_7901.zd

Text File | 1995-01-23 | 16.2 KB | 317 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 93-7901
--------
LLOYD SCHLUP, PETITIONER v. PAUL K. DELO,
SUPERINTENDENT, POTOSI CORRECTIONAL
CENTER
on writ of certiorari to the united states court
of appeals for the eighth circuit
[January 23, 1995]

  Chief Justice Rehnquist, with whom Justice
Kennedy and Justice Thomas join, dissenting.
  The Court decides that the threshold standard for a
showing of -actual innocence- in a successive or abusive
habeas petition is that set forth in Murray v. Carrier,
477 U. S. 478 (1986), rather than that set forth in
Sawyer v. Whitley, 505 U. S. ____ (1992).  For reasons
which I later set out, I believe the Sawyer standard
should be applied to claims of guilt or innocence as well
as to challenges to a petitioner's sentence.  But, more
importantly, I believe the Court's exegesis of the Carrier
standard both waters down the standard suggested in
that case, and will inevitably create confusion in the
lower courts.
  On February 3, 1984, three white inmates attacked
and killed a black inmate named Arthur Dade.  At trial,
testimony by Sergeant Roger Flowers and Officer John
Maylee indicated that inmate Rodnie Stewart threw a
container of steaming liquid into Dade's face, petitioner
jumped on Dade's back rendering him defenseless, and
inmate Robert O'Neal proceeded to stab Dade to death.
Petitioner's trial counsel attempted to discredit both
eyewitness identifications.  As to Sergeant Flowers,
counsel argued that Flowers had brought a visitor into
petitioner's cell less than an hour before the stabbing,
and therefore, Flowers had Schlup -on the brain.-  Trial
counsel attempted to discredit Officer Maylee's identifica-
tion by arguing that Maylee was too far from the scene
to properly view the incident.  Through discovery,
petitioner's trial counsel uncovered a videotape in which
petitioner is the first inmate to enter the cafeteria.  One
minute and five seconds after petitioner enters the
cafeteria, a group of guards run out in apparent re-
sponse to a distress call.  Twenty-six seconds later,
O'Neal is seen entering the cafeteria.  Petitioner's trial
counsel argued that the videotape established that
petitioner could not have committed the murder because
there was insufficient time for him to commit the crime
and arrive at the cafeteria one minute and five seconds
prior to the distress call.  Petitioner's trial counsel also
presented two alibi witnesses who testified that peti-
tioner had walked in front of them to the cafeteria
without incident.
  The jury considered this conflicting evidence, deter-
mined that petitioner's story was not credible, and
convicted him of capital murder.  During the sentencing
component of trial, the prosecution presented evidence
that there were two statutory aggravating factors that
warranted imposition of the death penalty: petitioner
committed the murder in a place of lawful confinement,
and petitioner had a substantial history of serious
assaultive criminal convictions.  As to the second
aggravating factor, the prosecution presented testimony
that for two weeks, petitioner had brutally beaten,
tortured, and sodomized a cellmate in a county jail.  The
prosecution also presented testimony that petitioner was
convicted of aggravated assault for slitting a cellmate's
throat.  On cross-examination, petitioner presented his
version of the prior incidents.  The jury considered this
evidence, rejected petitioner's story, and returned a
sentence of death.
  On appeal, the Missouri Supreme Court affirmed
petitioner's conviction and death sentence.  Petitioner
then filed state collateral proceedings claiming, among
other things, that his trial counsel was ineffective for
failing to present additional alibi witnesses and for
failing to investigate fully the circumstances of the
murder.  The Missouri Circuit Court determined that
petitioner's counsel provided effective assistance of
counsel.  The Missouri Supreme Court affirmed the
denial of postconviction relief.
  Petitioner then filed his first federal habeas petition
claiming that his trial counsel was ineffective at both
the guilt and penalty phases of trial.  Though he
previously refused to identify Randy Jordan as the
alleged third participant in the murder, petitioner
faulted his trial counsel for failing to call Randy Jordan
as a witness.  The District Court denied relief.  A panel
of the Eighth Circuit Court of Appeals concluded on the
merits that petitioner's trial counsel had not been
ineffective at the guilt or penalty phases of trial.
Petitioner sought review of the panel's decision by the
en banc court.  No Eighth Circuit judge questioned the
panel's conclusion that petitioner's trial counsel provided
effective assistance of counsel during the guilt phase of
trial.
  Petitioner filed a second federal habeas petition, again
claiming that his trial counsel was ineffective at both
the guilt and penalty phases of trial.  Petitioner supple-
mented this filing with an affidavit from a former
inmate, John Green.  Green's affidavit related to the
timing of the distress call.  In his most recent state-
ment, Green swore that Sergeant Flowers -was on his
way to break up the fight when he told me to call base.
I immediately went into the office, picked up the phone,
and called base.-  App. 122.  Under this timing se-
quence, petitioner submitted that he -ha[d] produced
proof, which could not have been fabricated, that the call
to which the guards [in the cafeteria] responded came
seconds after the stabbing.-  Id., at 100-101.  Further,
petitioner claimed that -Green's testimony thus makes
it impossible, under any view of the evidence, for Schlup
to have participated in Dade's murder: for thirty seconds
to a minute before the distress call, the videotape
plainly shows Lloyd Schlup in the prison dining room,
quietly getting his lunch.-  Brief for Petitioner 12.
Thus, petitioner's claim of -actual innocence- depends, in
part, on the assumption that the officers in the cafeteria
responded to Green's distress call -within seconds- of
Dade hitting the ground.
  The District Court denied petitioner's second habeas
petition without conducting an evidentiary hearing.
While on appeal, petitioner supplemented his habeas
petition with an additional affidavit from Robert
Faherty, a former prison guard who previously testified
at petitioner's trial.  A divided panel of the Eighth
Circuit applied the Sawyer standard to petitioner's
gateway claim of -actual innocence- and determined that
petitioner failed to meet that standard.  The Eighth
Circuit denied rehearing en banc.  We granted certiorari
to determine when, absent a showing of cause and
prejudice, a district court may consider the merits of an
abusive or successive habeas petition.  511 U. S. ___
(1994).
  In Kuhlmann v. Wilson, the Court examined when a
federal court could entertain a successive habeas
petition.  477 U. S. 436 (1986).  A plurality of the Court
determined that the -`ends of justice'- required a district
court to entertain the merits of an otherwise defaulted
petition where the prisoner supplemented his constitu-
tional claim with a showing of factual innocence.  Id., at
454.  After citing Judge Friendly's definition of factual
innocence, the plurality summarily determined that the
District Court should not have entertained Wilson's
petition because the evidence of guilt in his case had
been -`nearly overwhelming.'-  Id., at 455.
  In Carrier, the Court determined that a federal court
could not review a procedurally defaulted habeas petition
unless the petitioner demonstrated both cause for the
default as well as prejudice resulting from the constitu-
tional error.  477 U. S., at 492.  The Carrier Court,
however, left open the possibility that in a truly extraor-
dinary case, a federal habeas court might excuse a
failure to establish cause and prejudice where -`a
constitutional violation has probably resulted in the
conviction of one who is actually innocent.'-  Ante, at 28,
quoting 477 U. S., at 496 (emphasis added).
  In Sawyer, we described in some detail the showing of
actual innocence required when a habeas petitioner
brings an otherwise abusive, successive, or procedurally
defaulted claim challenging the imposition of his death
sentence, rather than his guilt of the crime.  505 U. S.,
at ___, (slip op., at 1).  There the Court emphasized
that innocence of the death penalty, like its -`actual
innocence'- counterpart, is -a very narrow exception,-
and that in order to be -workable it must be subject to
determination by relatively objective standards.-  Id., at
___ (slip op., at 6).  Thus, we concluded that a habeas
petitioner who challenged his sentence in an otherwise
defaulted petition must show -by clear and convincing
evidence that but for a constitutional error, no reason-
able juror would have found [the petitioner] eligible for
the death penalty.-  Id., at ___ (slip op., at 14).
  We have never until today had to similarly flesh out
the standard of -actual innocence- in the context of a
habeas petitioner claiming innocence of the crime.  Thus,
I agree that the question of what threshold standard
should govern is an open one.  As I have said earlier, I
disagree with the Court's conclusion that Carrier, and
not Sawyer, provides the proper standard.  But far more
troubling than the choice of Carrier over Sawyer is the
watered down and confusing version of Carrier which is
served up by the Court.
  As the Court notes, to satisfy Carrier a habeas
petitioner must demonstrate that -`a constitutional
violation has probably resulted in the conviction of one
who is actually innocent.'-  Ante, at 28 (quoting Carrier,
477 U. S., at 496).  The Court informs us that a
showing of -actual innocence- requires a habeas peti-
tioner to -show that it is more likely than not that no
reasonable juror would have convicted him in the light
of the new evidence.-  Ante, at 28-29.  But this is a
classic mixing of apples and oranges.  -More likely than
not- is a quintessential charge to a finder of fact, while
-no reasonable juror would have convicted him in the
light of the new evidence- is an equally quintessential
conclusion of law similar to the standard that courts
constantly employ in deciding motions for judgment of
acquittal in criminal cases.  The hybrid which the Court
serves up is bound to be a source of confusion.  Because
new evidence not presented at trial will almost always
be involved in these claims of actual innocence, the legal
standard for judgment of acquittal cannot be bodily
transposed for the determination of -actual innocence,-
but the sensible course would be to modify that familiar
standard, see infra, at 8-9, rather than to create a
confusing hybrid.
  In the course of elaborating the Carrier standard, the
Court takes pains to point out that it differs from the
standard enunciated in Jackson v. Virginia, 443 U. S.
307 (1979), for review of the sufficiency of the evidence
to meet the constitutional standard of proof beyond a
reasonable doubt.  Under Jackson, -the relevant question
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.-  Id., at 319.  This standard
requires a solely retrospective analysis of the evidence
considered by the jury and reflects a healthy respect for
the trier of fact's -responsibility . . . to resolve conflicts
in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to the ultimate
facts.-  Ibid.
  The Court fails to acknowledge expressly the similari-
ties between the standard it has adopted and the
Jackson standard.  A habeas court reviewing a claim of
actual innocence does not write on a clean slate.  Cf.
Barefoot v. Estelle, 463 U. S. 880, 887 (1983) (-Federal
courts are not forums in which to relitigate state trials-);
Herrera v. Collins, 506 U. S. ___, ___ (1993) (slip op., at
25) (-[I]n state criminal proceedings the trial is the
paramount event for determining the guilt or innocence
of the defendant-); Wainwright v. Sykes, 433 U. S. 72,
90 (1977) (-Society's resources have been concentrated at
[the state trial] in order to decide, within the limits of
human fallibility, the question of guilt or innocence of
one of its citizens-).  Therefore, as the Court acknowl-
edges, a petitioner making a claim of actual innocence
under Carrier falls short of satisfying his burden if the
reviewing court determines that any juror reasonably
would have found petitioner guilty of the crime.  See
Ante, at 31; cf. Jackson, supra, at 318-319.
  The situation presented by a claim of actual innocence
in a federal habeas petition is obviously different from
that presented in Jackson because the habeas court
analyzing an -actual innocence- claim is faced with a
body of evidence that has been supplemented since the
original trial.  The reviewing court must somehow
predict the effect that this new evidence would have had
on the deliberations of reasonable jurors.  It must
necessarily weigh this new evidence in some manner,
and may need to make credibility determinations as to
witnesses who did not appear before the original jury.
This new evidence, however, is not a license for the
reviewing court to disregard the presumptively proper
determination by the original trier of fact.
  I think the standard enunciated in Jackson, properly
modified because of the different body of evidence which
must be considered, faithfully reflects the language used
in Carrier.  The habeas judge should initially consider
the motion on the basis of the written submissions made
by the parties.  As the Court suggests, habeas courts
will be able to resolve the great majority of -actual inno-
cence- claims routinely without any evidentiary hearing.
See ante, at 26.  This fact is important because, as we
noted in Sawyer: -In the every day context of capital
penalty proceedings, a federal district judge typically will
be presented with a successive or abusive habeas
petition a few days before, or even on the day of, a
scheduled execution, and will have only a limited time
to determine whether a petitioner has shown that his
case falls within the `actual innocence' exception if such
a claim is made.-  505 U. S., at ___ (slip op., at 6-7).
  But in the highly unusual case where the district court
believes on the basis of written submissions that the
necessary showing of -actual innocence- may be made
out, it should conduct a limited evidentiary hearing at
which the affiants whose testimony the Court believes to
be crucial to the showing of actual innocence are present
and may be cross examined as to veracity, reliability,
and all of the other elements which affect the weight to
be given the testimony of a witness.  After such a
hearing, the district court would be in as good a position
as possible to make the required determination as to the
showing of actual innocence.
  The present state of our habeas jurisprudence is less
than ideal in its complexity, but today's decision need-
lessly adds to that complexity.  I believe that by adopt-
ing the Sawyer standard both for attacks on the sen-
tence and on the judgment of conviction, we would take
a step in the direction of simplifying this jurisprudence.
See Keeney v. Tamayo-Reyes, 504 U. S. 1, ___ (1992)
(slip op., at 8) (noting the importance of uniformity in
the law of habeas corpus).  The Sawyer standard strikes
the proper balance among the State's interest in finality,
McCleskey, 499 U. S., at 491-492, the federal courts'
respect for principles of federalism, see, e.g., Teague v.
Lane, 489 U. S. 288, 309 (1989) (plurality opinion), and
-the ultimate equity on the prisoner's side-a sufficient
showing of actual innocence,- Withrow v. Williams, 507
U. S. ___, ___ (1993) (O'Connor, J., concurring in part
and dissenting in part) (slip op., at 4).  The Court of
Appeals fully analyzed petitioner's new evidence and
determined that that petitioner fell way short of
-`show[ing] by clear and convincing evidence [that] no
reasonable juror would find him [guilty of murder].'-  11
F. 3d 738, 743 (CA8 1993) (quoting Sawyer, supra, at
___) (slip op., at 14).  I agree and therefore would
affirm.
  But if we are to adopt the Carrier standard, it should
not be the confusing exegesis of that standard contained
in the Court's opinion.  It should be based on a modified
version of Jackson v. Virginia, with a clearly defined
area in which the district court may exercise its discre-
tion to hold an evidentiary hearing.