Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/delemb2.asc

Text File | 1993-08-01 | 52.7 KB | 971 lines

    This is not to say that petitioner's affidavits are
without probative value.  Had this sort of testimony been offered
at trial, it could have been weighed by the jury, along with the
evidence offered by the State and petitioner, in deliberating
upon its verdict.  Since the statements in the affidavits
contradict the evidence received at trial, the jury would have
had to decide important issues of credibility.  But coming 10
years after petitioner's trial, this showing of innocence falls
far short of that which would have to be made in order to trigger
the sort of constitutional claim which we have assumed, arguendo,
to exist.

    The judgment of the Court of Appeals is

Affirmed.


    Justice O'Connor, with whom Justice Kennedy joins,
concurring.

    I cannot disagree with the fundamental legal principle
that executing the innocent is inconsistent with the
Constitution.  Regardless of the verbal formula employed--
contrary to contemporary standards of decency,- post, at 1
(dissenting opinion) (relying on Ford v.  Wainwright, 477 U. S.
499, 406 (1986)), "shocking to the conscience," post, at 1
(relying on Rochin v. California, 342 U. S. 165, 172 (1952)), or
offensive to a -`-principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental,-'- ante, at 16 (opinion of the Court) (quoting
Medina v. California, 505 U.S. ___, ___ (1992) (slip op. 7-8), in
turn quoting Patterson v. New York, 432 U. S. 197, 202
(1977))-the execution of a legally and factually innocent person
would be a constitutionally intolerable event.  Dispositive to
this case, however, is an equally fundamental fact: Petitioner is
not innocent, in any sense of the word.

    As the Court explains, ante, at 7-8, petitioner is not
innocent in the eyes of the law because, in our system of
justice, "the trial is the paramount event for determining the
guilt or innocence of the defendant." Ante, at 25.  Accord, post,
at 13 (dissenting opinion).  In petitioner's case, that paramount
event occurred 10 years ago.  He was tried before a jury of his
peers, with the full panoply of protections that our Constitution
affords criminal defendants.  At the conclusion of that trial,
the jury found petitioner guilty beyond a reasonable doubt.
Petitioner therefore does not appear before us as an innocent man
on the verge of execution.  He is instead a legally guilty one
who, refusing to accept the jury's verdict, demands a hearing in
which to have his culpability determined once again.  Ante, at 8
(opinion of the Court).

    Consequently, the issue before us is not whether a State
can execute the innocent.  It is, as the Court notes, whether a
fairly convicted and therefore legally guilty person is

constitutionally entitled to yet another judicial proceeding in
which to adjudicate his guilt anew, 10 years after conviction,
notwithstanding his failure to demonstrate that constitutional
error infected his trial.  Ante, at 16, n. 6; see ante, at 8.  In
most circumstances, that question would answer itself in the
negative.  Our society has a high degree of confidence in its
criminal trials, in no small part because the Constitution offers
unparalleled protections against convicting the innocent.  Ante,
at 7 (opinion of the Court).  The question similarly would be
answered in the negative today, except for the disturbing nature
of the claim before us.  Petitioner contends not only that the
Constitution's protections -sometimes fail,- post, at 2
(dissenting opinion), but that their failure in his case will
result in his execution- even though he is factually innocent and
has evidence to prove it.

    Exercising restraint, the Court and Justice White assume
for the sake of argument that, if a prisoner were to make an
exceptionally strong showing of actual innocence, the execution
could not go forward.  Justice Blackmun, in contrast, would
expressly so hold; he would also announce the precise burden of
proof.  Compare ante, at 26 (opinion of the Court) ("We assume,
for the sake of argument in deciding this case, that in a capital
case a truly persuasive demonstration of `actual innocence' made
after trial would render the execution of a defendant
unconstitutional and warrant federal habeas relief if there were
no state avenue open to process such a claim"), and ante, at 1
(White, J., concurring in judgment) (assuming that a persuasive
showing of actual innocence would render a conviction
unconstitutional but explaining that, even under such an
assumption, -petitioner would at the very least be required to
show that based on proffered newly discovered evidence and the
entire record before the jury that convicted him, `no rational
trier of fact could [find] proof of guilt beyond reasonable
doubt.' Jackson v.  Virginia, 443 U. S. 307, 314 (1979)-), with
post, at 14 (dissenting opinion) (I would hold that, to obtain
relief on a claim of actual innocence, the petitioner must show
that he probably is innocent).  Resolving the issue is neither
necessary nor advisable in this case.  The question is a
sensitive and, to say the least, troubling one.  It implicates
not just the life of a single individual, but also the State's
powerful and legitimate interest in punishing the guilty, and the
nature of state-federal relations.  Indeed, as the Court
persuasively demonstrates, ante, at 7-26, throughout our history
the federal courts have assumed that they should not and could
not intervene to prevent an execution so long as the prisoner had
been convicted after a constitutionally adequate trial.  The
prisoner's sole remedy was a pardon or clemency.

    Nonetheless, the proper disposition of this case is
neither difficult nor troubling.  No matter what the Court might
say about claims of actual innocence today, petitioner could not
obtain relief.  The record overwhelmingly demonstrates that
petitioner deliberately shot and killed Officers Rucker and
Carrisalez the night of September 29, 1981; petitioner's new
evidence is bereft of credibility.  Indeed, despite its stinging
criticism of the Court's decision, not even the dissent expresses
a belief that petitioner might possibly be actually innocent.
Nor could it:  The record makes it abundantly clear that
petitioner is not somehow the future victim of -simple murder,-
post, at 18 (dissenting opinion), but instead himself the
established perpetrator of two brutal and tragic ones.

    Petitioner's first victim was Texas Department of Public
Safety Officer David Rucker, whose body was found lying beside
his patrol car.  The body's condition indicated that a struggle
had taken place and that Rucker had been shot in the head at
rather close range.  Petitioner's Social Security card was found
nearby.  Shortly after Rucker's body was discovered, petitioner's
second victim, Los Fresnos Police Officer Enrique Carrisalez,
stopped a car speeding away from the murder scene.  When
Carrisalez approached, the driver shot him.  Carrisalez lived
long enough to identify petitioner as his assailant.  Enrique
Hernandez, a civilian who was riding with Carrisalez, also
identified petitioner as the culprit.  Moreover, at the time of
the stop, Carrisalez radioed a description of the car and its
license plates to the police station.  The license plates
corresponded to a car that petitioner was known to drive.
Although the car belonged to petitioner's girlfriend, she did not
have a set of keys; petitioner did.  He even had a set in his
pocket at the time of his arrest.

/* The opinion at this point is trying to make a virtue out of
the overwhelming evidence against Herrerra. The point here being
that the case is not one that should be used to determine the
point. */

    When the police arrested petitioner, they found more than
car keys; they also found evidence of the struggle between
petitioner and Officer Rucker.  Human blood was spattered across
the hood, the left front fender, the grill, and the interior of
petitioner's car.  There were spots of blood on petitioner's
jeans; blood had even managed to splash into his wallet.  The
blood was, like Rucker's and unlike petitioner's, type A.  Blood
samples also matched Rucker's enzyme profile.  Only 6% of the
Nation's population shares both Rucker's blood type and his
enzyme profile.

    But the most compelling piece of evidence was entirely of
petitioner's own making.  When the police arrested petitioner, he
had in his possession a signed letter in which he acknowledged
responsibility for the murders; at the end of the letter,
petitioner offered to turn himself in:

      I am terribly sorry for those [to whom] I have brought
      grief . . . .  What happened to Rucker was for a
      certain reason. . . .  [H]e violated some of [the] laws
      [of my drug business] and suffered the penalty, like
      the one you have for me when the time comes. . . .  The
      other officer [Carrisalez] . . . had not[hing] to do
      [with] this.  He was out to do what he had to do,
      protect, but that's life. . . .  [I]f this is read word
      for word over the media, I will turn myself in . . . .-
      Ante, at 3, n. 1 (opinion of the Court).

There can be no doubt about the letter's meaning.  When the
police attempted to interrogate petitioner about the killings, he
told them -`it was all in the letter'- and suggested that, if
-they wanted to know what happened,- they should read it.
Herrera v. State, 682 S. W. 2d 313, 317 (Tex. Crim. App. 1984),
cert. denied, 471 U. S. 1131 (1985).

    Now, 10 years after being convicted on that seemingly
dispositive evidence, petitioner has collected four affidavits
that he claims prove his innocence.  The affidavits allege that
petitioner's brother, who died six years before the affidavits
were executed, was the killer- and that petitioner was not.
Affidavits like these are not uncommon, especially in capital
cases.  They are an unfortunate although understandable
occurrence.  It seems that, when a prisoner's life is at stake,
he often can find someone new to vouch for him.  Experience has
shown, however, that such affidavits are to be treated with a
fair degree of skepticism.

    These affidavits are no exception.  They are suspect,
produced as they were at the eleventh hour with no reasonable
explanation for the nearly decade-long delay.  See ante, at 27
(opinion of the Court).  Worse, they conveniently blame a dead
man- someone who will neither contest the allegations nor suffer
punishment as a result of them.  Moreover, they contradict each
other on numerous points, including the number of people in the
murderer's car and the direction it was heading when Officer
Carrisalez stopped it.  Ibid.  They do not even agree on when
Officer Rucker was killed.  According to one, Rucker was killed
when he and the murderer met at a highway rest stop.  Brief for
Petitioner 30.  In contrast, another asserts that there was an
initial meeting, but that Rucker was not killed until afterward
when he -pulled [the murderer's car] over- on the highway.  Id.,
at 27.  And the affidavits are inconsistent with petitioner's own
admission of guilt.  The affidavits blame petitioner's deceased
brother for both the Rucker and Carrisalez homicides- even though
petitioner pleaded guilty to murdering Rucker and contested only
the Carrisalez slaying.

    Most critical of all, however, the affidavits pale when
compared to the proof at trial.  While some bits of
circumstantial evidence can be explained, petitioner offers no
plausible excuse for the most damaging piece of evidence, the
signed letter in which petitioner confessed and offered to turn
himself in.  One could hardly ask for more unimpeachable -or more
unimpeached- evidence of guilt.

    The conclusion seems inescapable: Petitioner is guilty.
The dissent does not contend otherwise.  Instead, it urges us to
defer to the District Court's determination that petitioner's
evidence was not -so insubstantial that it could be dismissed
without any hearing at all.- Post, at 16. I do not read the
District Court's decision as making any such determination.
Nowhere in its opinion did the District Court question the
accuracy of the jury's verdict.  Nor did it pass on the
sufficiency of the affidavits.  The District Court did not even
suggest that it wished to hold an evidentiary hearing on
petitioner's actual innocence claims.  Indeed, the District Court
apparently believed that a hearing would be futile because the
court could offer no relief in any event.  As the court
explained, claims of -newly discovered evidence bearing directly
upon guilt or innocence- are not cognizable on habeas corpus
-unless the petition implicates a constitutional violation.- App.
38.

    As the dissent admits, post, at 16, the District Court
had an altogether different reason for entering a stay of
execution.  It believed, from a "sense of fairness and due
process," App. 38, that petitioner should have the chance
to present his affidavits to the state courts.  Id., at 38-39;
ante, at 5 (opinion of the Court).  But the District Court did
not hold that the state courts should hold a hearing either; it
instead ordered the habeas petition dismissed and the stay lifted
once the state court action was filed, without further condition.
App. 39.  As the Court of Appeals recognized, that rationale was
insufficient to support the stay order.  Texas courts do not
recognize new evidence claims on collateral review.  Id., at
67-68.  Nor would they entertain petitioner's claim as a motion
for a new trial; under Texas law, such motions must be made
within 30 days of trial.  See ante, at 8, 18-19 (opinion of the
Court); App. 68.  Because petitioner could not have obtained
relief -or even a hearing- through the state courts, it was error
for the District Court to enter a stay permitting him to try.

    Of course, the Texas courts would not be free to turn
petitioner away if the Constitution required otherwise.  But the
District Court did not hold that the Constitution required them
to entertain petitioner's claim.  On these facts, that would be
an extraordinary holding.  Petitioner did not raise his claim
shortly after Texas' 30-day limit expired; he raised it eight
years too late.  Consequently, the District Court would have had
to conclude not that Texas' 30-day limit for new evidence claims
was too short to comport with due process, but that applying an
8-year limit to petitioner would be.  As the Court demonstrates
today, see ante, at 16-20, there is little in fairness or history
to support such a conclusion.

    But even if the District Court did hold that further
federal proceedings were warranted, surely it abused its
discretion.  The affidavits do not reveal a likelihood of actual
innocence.  See ante, at 1-3, 26-28 (opinion of the Court);
supra, at 5-10.  In-person repetition of the affiants' accounts
at an evidentiary hearing could not alter that; the accounts are,
on their face and when compared to the proof at trial,
unconvincing.  As a result, further proceedings were improper
even under the rather lax standard the dissent urges, for -`it
plainly appear[ed] from the face of the petition and [the]
exhibits annexed to it that the petitioner [wa]s not entitled to
relief.'- Post, at 16 (quoting 28 U. S. C. 2254 Rule 4).

    The abuse of discretion is particularly egregious given
the procedural posture.  The District Court actually entered an
order staying the execution.  Such stays on "second or successive
federal habeas petition[s] should be granted only when there are
`substantial grounds upon which relief might be granted,'" Delo
v. Stokes, 495 U. S.  320, 321 (1990) (quoting Barefoot v.
Estelle, 463 U. S. 880, 895 (1983)), and only when the equities
favor the petitioner, see Gomez v. United States District Court
for the Northern Dist. of California, 503 U. S. ___, ___ (1992)
(slip op. 1) (Whether a claim is framed -as a habeas petition or
1983 action, [what is sought] is an equitable remedy. . . .  A
court may consider the last-minute nature of an application to
stay execution in deciding whether to grant equitable relief-).
Petitioner's claim satisfied neither condition.  The grounds
petitioner offered in his habeas petition were anything but
substantial.  And the equities favored the State.  Petitioner
delayed presenting his new evidence until eight years after
conviction- without offering a semblance of a reasonable excuse
for the inordinate delay.  At some point in time, the State's
interest in finality must outweigh the prisoner's interest in yet
another round of litigation.  In this case, that point was well
short of eight years.

    Unless federal proceedings and relief-if they are to be
had at all-are reserved for -extraordinarily high- and -truly
persuasive demonstration[s] of `actual innocence'- that cannot be
presented to state authorities, ante, at 26 (opinion of the
Court), the federal courts will be deluged with frivolous claims
of actual innocence.  Justice Jackson explained the dangers of
such circumstances some 40 years ago:

      It must prejudice the occasional meritorious
      application to be buried in a flood of worthless ones.
      He who must search a haystack for a needle is likely to
      end up with the attitude that the needle is not worth
      the search. Brown v. Allen, 344 U. S. 443, 537 (1953)
      (concurring in result).


If the federal courts are to entertain claims of actual
innocence, their attention, efforts, and energy must be reserved
for the truly extraordinary case; they ought not be forced to
sort through the insubstantial and the incredible as well.

    *    *    *

    Ultimately, two things about this case are clear.  First
is what the Court does not hold.  Nowhere does the Court state
that the Constitution permits the execution of an actually
innocent person.  Instead, the Court assumes for the sake of
argument that a truly persuasive demonstration of actual
innocence would render any such execution unconstitutional and
that federal habeas relief would be warranted if no state avenue
were open to process the claim.  Second is what petitioner has
not demonstrated.  Petitioner has failed to make a persuasive
showing of actual innocence.  Not one judge- no state court
judge, not the District Court Judge, none of the three Judges of
the Court of Appeals, and none of the Justices of this Court- has
expressed doubt about petitioner's guilt.  Accordingly, the Court
has no reason to pass on, and appropriately reserves, the
question whether federal courts may entertain convincing claims
of actual innocence.  That difficult question remains open.  If
the Constitution's guarantees of fair procedure and the
safeguards of clemency and pardon fulfill their historical
mission, it may never require resolution at all.


    Justice Scalia, with whom Justice Thomas joins,
concurring.

    We granted certiorari on the question whether it violates
due process or constitutes cruel and unusual punishment for a
State to execute a person who, having been convicted of murder
after a full and fair trial, later alleges that newly discovered
evidence shows him to be -actually innocent.- I would have
preferred to decide that question, particularly since, as the
Court's discussion shows, it is perfectly clear what the answer
is: There is no basis in text, tradition, or even in contemporary
practice (if that were enough), for finding in the Constitution a
right to demand judicial consideration of newly discovered
evidence of innocence brought forward after conviction.  In
saying that such a right exists, the dissenters apply nothing but
their personal opinions to invalidate the rules of more than two
thirds of the States, and a Federal Rule of Criminal Procedure
for which this Court itself is responsible.  If the system that
has been in place for 200 years (and remains widely approved)
-shocks- the dissenters' consciences, post, at 1, perhaps they
should doubt the calibration of their consciences, or, better
still, the usefulness of -conscience-shocking- as a legal test.

    I nonetheless join the entirety of the Court's opinion,
including the final portion (pages 26-28)-because there is no
legal error in deciding a case by assuming arguendo that an
asserted constitutional right exists, and because I can
understand, or at least am accustomed to, the reluctance of the
present Court to admit publicly that Our Perfect Constitution
lets stand any injustice, much less the execution of an innocent
man who has received, though to no avail, all the process that
our society has traditionally deemed adequate.  With any luck, we
shall avoid ever having to face this embarrassing question again,
since it is improbable that evidence of innocence as convincing
as today's opinion requires would fail to produce an executive
pardon.

    My concern is that in making life easier for ourselves we
not appear to make it harder for the lower federal courts,
imposing upon them the burden of regularly analyzing
newly-discovered-evidence-of-innocence claims in capital cases
(in which event such federal claims, it can confidently be
predicted, will become routine and even repetitive).  A number of
Courts of Appeals have hitherto held, largely in reliance on our
unelaborated statement in Townsend v. Sain, 372 U. S. 293, 317
(1963), that newly discovered evidence relevant only to a state
prisoner's guilt or innocence is not a basis for federal habeas
corpus relief.  See, e.g., Boyd v. Puckett, 905 F. 2d 895,
896-897 (CA5), cert. denied, 498 U. S. 988 (1990); Stockton v.
Virginia, 852 F. 2d 740, 749 (CA4 1988), cert. denied, 489
U.S. 1071 (1989); Swindle v. Davis, 846 F. 2d 706, 707 (CA11
1988) (per curiam); Byrd v. Armontrout, 880 F. 2d 1, 8 (CA8
1989), cert. denied, 494 U. S. 1019 (1990); Burks v. Egeler, 512
F. 2d 221, 230 (CA6), cert. denied, 423 U. S. 937 (1975).  I do
not understand it to be the import of today's decision that those
holdings are to be replaced with a strange regime that assumes
permanently, though only -arguendo,- that a constitutional right
exists, and expends substantial judicial resources on that
assumption.  The Court's extensive and scholarly discussion of
the question presented in the present case does nothing but
support our statement in Townsend, and strengthen the validity of
the holdings based upon it.


Justice White, concurring in the judgment.

    In voting to affirm, I assume that a persuasive showing
of -actual innocence- made after trial, even though made after
the expiration of the time provided by law for the presentation
of newly discovered evidence, would render unconstitutional the
execution of petitioner in this case.  To be entitled to relief,
however, petitioner would at the very least be required to show
that based on proffered newly discovered evidence and the entire
record before the jury that convicted him, "no rational trier of
fact could [find] proof of guilt beyond a reasonable doubt."
Jackson v. Virginia, 443 U. S. 307, 324 (1979).  For the reasons
stated in the Court's opinion, petitioner's showing falls far
short of satisfying even that standard, and I therefore concur in
the judgment.

    Justice Blackmun, with whom Justice Stevens and Justice
Souter join with respect to Parts I-IV, dissenting.

    Nothing could be more contrary to contemporary standards
of decency, see Ford v. Wainwright, 477 U. S. 399, 406 (1986), or
more shocking to the conscience, see Rochin v.    California, 342 U.
S. 165, 172 (1952), than to execute a person who is actually
innocent.

    I therefore must disagree with the long and general
discussion that precedes the Court's disposition of this case.
See ante, at 6-26.  That discussion, of course, is dictum because
the Court assumes, "for the sake of argument in deciding this
case, that in a capital case a truly persuasive demonstration of
`actual innocence' made after trial would render the execution of
a defendant unconstitutional." Ante, at 26.  Without articulating
the standard it is applying, however, the Court then decides that
this petitioner has not made a sufficiently persuasive case.
Because I believe that in the first instance the District Court
should decide whether petitioner is entitled to a hearing and
whether he is entitled to relief on the merits of his claim, I
would reverse the order of the Court of Appeals and remand this
case for further proceedings in the District Court.

I

    The Court's enumeration, ante, at 7, of the
constitutional rights of criminal defendants surely is entirely
beside the point.  These protections sometimes fail.  We really
are being asked to decide whether the Constitution forbids the
execution of a person who has been validly convicted and
sentenced but who, nonetheless, can prove his innocence with
newly discovered evidence.  Despite the State of Texas'
astonishing protestation to the contrary, see Tr. of Oral Arg.
37, I do not see how the answer can be anything but -yes.-

A

    The Eighth Amendment prohibits -cruel and unusual
punishments.- This proscription is not static but rather reflects
evolving standards of decency.  Ford v. Wainwright, 477 U. S., at
406; Gregg v. Georgia, 428 U. S. 153, 171 (1976) (opinion of
Stewart, Powell, and Stevens, JJ.); Trop v. Dulles, 356 U. S. 86,
101 (1958) (plurality opinion); Weems v. United States, 217 U. S.
349, 373 (1910). I think it is crystal clear that the execution
of an innocent person is "at odds with contemporary standards of
fairness and decency." Spaziano v. Florida, 468 U. S. 447, 465
(1984).  Indeed, it is at odds with any standard of decency that
I can imagine.

    This Court has ruled that punishment is excessive and
unconstitutional if it is "nothing more than the purposeless and
needless imposition of pain and suffering," or if it is "grossly
out of proportion to the severity of the crime." Coker v.
Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); Gregg v.
Georgia, 428 U. S., at 173 (opinion of Stewart, Powell, and
Stevens, JJ.).  It has held that death is an excessive punishment
for rape, Coker v. Georgia, 433 U. S., at 592, and for mere
participation in a robbery during which a killing takes place.
Enmund v. Florida, 458 U. S. 782, 797 (1982).  If it is violative
of the Eighth Amendment to execute someone who is guilty of those
crimes, then it plainly is violative of the Eighth Amendment to
execute a person who is actually innocent.  Executing an innocent
person epitomizes "the purposeless and needless imposition of
pain and suffering." Coker v. Georgia, 433 U. S., at 592.

    The protection of the Eighth Amendment does not end once
a defendant has been validly convicted and sentenced.  In Johnson
v. Mississippi, 486 U. S. 578 (1988), the petitioner had been
convicted of murder and sentenced to death on the basis of three
aggravating circumstances.  One of those circumstances was that
he previously had been convicted of a violent felony in the State
of New York.  After Johnson had been sentenced to death, the New
York Court of Appeals reversed his prior conviction.  Although
there was no question that the prior conviction was valid at the
time of Johnson's sentencing, this Court held that the Eighth
Amendment required review of the sentence because "the jury was
allowed to consider evidence that has been revealed to be
materially inaccurate." Id., at 590.  In Ford v. Wainwright,
supra, the petitioner had been convicted of murder and sentenced
to death.  There was no suggestion that he was incompetent at the
time of his offense, at trial, or at sentencing, but subsequently
he exhibited changes in behavior that raised doubts about his
sanity.  This Court held that Florida was required under the
Eighth Amendment to provide an additional hearing to determine
whether Ford was mentally competent, and that he could not be
executed if he were incompetent.  477 U. S., at 410 (plurality
opinion); id., at 422-423 (Powell, J., concurring in part and
concurring in the judgment).  Both Johnson and Ford recognize
that capital defendants may be entitled to further proceedings
because of an intervening development even though they have been
validly convicted and sentenced to death.

    Respondent and the United States as amicus curiae argue
that the Eighth Amendment does not apply to petitioner because he
is challenging his guilt, not his punishment.  Brief for
Respondent 21-23; Brief for United States as Amicus Curiae 9-12.
The majority attempts to distinguish Ford on that basis.  Ante,
at 14.  Such reasoning, however, not only contradicts our
decision in Beck v. Alabama, 447 U. S. 625 (1980), but also
fundamentally misconceives the nature of petitioner's argument.
Whether petitioner is viewed as challenging simply his death
sentence or also his continued detention, he still is challenging
the State's right to punish him.  Respondent and the United
States would impose a clear line between guilt and punishment,
reasoning that every claim that concerns guilt necessarily does
not involve punishment.  Such a division is far too facile.  What
respondent and the United States fail to recognize is that the
legitimacy of punishment is inextricably intertwined with guilt.

    Beck makes this clear.  In Beck, the petitioner was
convicted of the capital crime of robbery-intentional killing.
Under Alabama law, however, the trial court was prohibited from
giving the jury the option of convicting him of the lesser
included offense of felony murder.  We held that precluding the
instruction injected an impermissible element of uncertainty into
the guilt phase of the trial.

      To insure that the death penalty is indeed imposed on
      the basis of `reason rather than caprice or emotion,'
      we have invalidated procedural rules that tended to
      diminish the reliability of the sentencing
      determination.  The same reasoning must apply to rules
      that diminish the reliability of the guilt
      determination.  Thus, if the unavailability of a lesser
      included offense instruction enhances the risk of an
      unwarranted conviction, [the State] is constitutionally
      prohibited from withdrawing that option in a capital
      case. 447 U.S., at 638 (footnote omitted).

The decision in Beck establishes that, at least in capital cases,
the Eighth Amendment requires more than reliability in
sentencing.  It also mandates a reliable determination of guilt.
See also Spaziano v. Florida, 468 U. S., at 456.

    The Court also suggests that allowing petitioner to raise
his claim of innocence would not serve society's interest in the
reliable imposition of the death penalty because it might require
a new trial that would be less accurate than the first.  Ante, at
12.  This suggestion misses the point entirely.  The question is
not whether a second trial would be more reliable than the first
but whether, in light of new evidence, the result of the first
trial is sufficiently reliable for the State to carry out a death
sentence.  Furthermore, it is far from clear that a State will
seek to retry the rare prisoner who prevails on a claim of actual
innocence.  As explained in part III, infra, I believe a prisoner
must show not just that there was probably a reasonable doubt
about his guilt but that he is probably actually innocent.  I
find it difficult to believe that any State would chose to retry
a person who meets this standard.

    I believe it contrary to any standard of decency to
execute someone who is actually innocent.  Because the Eighth
Amendment applies to questions of guilt or innocence, Beck v.
Alabama, 447 U. S., at 638, and to persons upon whom a valid
sentence of death has been imposed, Johnson v. Mississippi, 486
U. S., at 590, I also believe that petitioner may raise an Eighth
Amendment challenge to his punishment on the ground that he is
actually innocent.

B

    Execution of the innocent is equally offensive to the Due
Process Clause of the Fourteenth Amendment.  The majority's
discussion misinterprets petitioner's Fourteenth Amendment claim
as raising a procedural rather than a substantive due process
challenge. "The Due Process Clause of the Fifth Amendment
provides that `No person shall . . . be deprived of life,
liberty, or property, without due process of law . . . .' This
Court has held that the Due Process Clause protects individuals
against two types of government action.  So-called `substantive
due process' prevents the government from engaging in conduct
that `shocks the conscience,' Rochin v. California, 342 U. S.
165, 172 (1952), or interferes with rights `implicit in the
concept of ordered liberty,' Palko v. Connecticut, 302
U.S. 319, 325-326 (1937).  When government action depriving a
person of life, liberty, or property survives substantive due
process scrutiny, it must still be implemented in a fair manner.
Mathews v. Eldridge, 424 U. S. 319, 335 (1976).  This requirement
has traditionally been referred to as `procedural' due process.-
United States v. Salerno, 481 U. S. 739, 746 (1987). Petitioner
cites not Mathews v. Eldridge, 424 U. S. 319 (1976), or Medina v.
California, 505 U. S. ___ (1992), in support of his due process
claim, but Rochin.  Brief for Petitioner 32-33.

    Just last Term, we had occasion to explain the role of
substantive due process in our constitutional scheme.  Quoting
the second Justice Harlan, we said: "`[T]he full scope of the
liberty guaranteed by the Due Process Clause cannot be found in
or limited by the precise terms of the specific guarantees
elsewhere provided in the Constitution.  This liberty- is not a
series of isolated points . . . .  It is a rational continuum
which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints . . . .'"
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.
S. ___, ___ (1992) (slip op. 6), quoting Poe v. Ullman, 367 U. S.
497, 543 (1961) (Harlan, J., dissenting from dismissal on
jurisdictional grounds).

    Petitioner's claim falls within our due process
precedents.  In Rochin, deputy sheriffs investigating narcotics
sales broke into Rochin's room and observed him put two capsules
in his mouth.  The deputies attempted to remove the capsules from
his mouth and, having failed, took Rochin to a hospital and had
his stomach pumped.  The capsules were found to contain morphine.
The Court held that the deputies' conduct -shock[ed] the
conscience- and violated due process.  342 U. S., at 172.
-Illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents- this course of
proceeding by agents of government to obtain evidence is bound to
offend even hardened sensibilities.  They are methods too close
to the rack and the screw to permit of constitutional
differentiation.- Ibid.  The lethal injection that petitioner
faces as an allegedly innocent person is certainly closer to the
rack and the screw than the stomach pump condemned in Rochin.
Execution of an innocent person is the ultimate -`arbitrary
impositio[n].'- Planned Parenthood, 505 U. S., at ___ (slip op.
6).  It is an imposition from which one never recovers and for
which one can never be compensated.  Thus, I also believe that
petitioner may raise a substantive due process challenge to his
punishment on the ground that he is actually innocent.

C

    Given my conclusion that it violates the Eighth and
Fourteenth Amendments to execute a person who is actually
innocent, I find no bar in Townsend v. Sain, 372 U.S. 293 (1963),
to consideration of an actual innocence claim.  Newly discovered
evidence of petitioner's innocence does bear on the
constitutionality of his execution.  Of course, it could be
argued this is in some tension with Townsend's statement, id., at
317, that "the existence merely of newly discovered evidence
relevant to the guilt of a state prisoner is not a ground for
relief on federal habeas corpus." That statement, however, is no
more than distant dictum here, for we never had been asked to
consider whether the execution of an innocent person violates the
Constitution.

    II
    The majority's discussion of petitioner's constitutional
claims is even more perverse when viewed in the light of this
Court's recent habeas jurisprudence.  Beginning with
a trio of decisions in 1986, this Court shifted the focus of
federal habeas review of successive, abusive, or defaulted claims
away from the preservation of constitutional rights to a
fact-based inquiry into the habeas petitioner's guilt or
innocence.  See Kuhlmann v. Wilson, 477 U. S. 436,
454 (plurality opinion); Murray v. Carrier, 477 U. S. 478, 496
Smith v. Murray, 477 U. S. 527, 537; see also McCleskey v. Zant,
499 U. S. ___, ___ (1991) (slip op.  24-25).  The Court sought to
strike a balance between the State's interest in the finality of
its criminal judgments and the prisoner's interest in access to a
forum to test the basic justice of his sentence.  Kuhlmann v.
Wilson, 477 U.S., at 452.  In striking this balance, the Court
adopted the view of Judge Friendly that there should be an
exception to the concept of finality when a prisoner can make a
colorable claim of actual innocence.  Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi.
L. Rev. 142, 160 (1970).

Justice Powell, writing for the plurality in Wilson, explained
the reason for focusing on innocence:

          The prisoner may have a vital interest in having a
      second chance to test the fundamental justice of his
      incarceration.  Even where, as here, the many judges
      who have reviewed the prisoner's claims in several
      proceedings provided by the State and on his first
      petition for federal habeas corpus have determined that
      his trial was free from constitutional error, a
      prisoner retains a powerful and legitimate interest in
      obtaining his release from custody if he is innocent of
      the charge for which he was incarcerated.  That
      interest does not extend, however, to prisoners whose
      guilt is conceded or plain.- 477 U. S., at 452.

In other words, even a prisoner who appears to have had a
constitutionally perfect trial, "retains a powerful and
legitimate interest in obtaining his release from custody if he
is innocent of the charge for which he was incarcerated." It is
obvious that this reasoning extends beyond the context of
successive, abusive, or defaulted claims to substantive claims of
actual innocence.  Indeed, Judge Friendly recognized that
substantive claims of actual innocence should be cognizable on
federal habeas.  38 U.  Chi. L. Rev., at 159-160, and n. 87.

    Having adopted an "actual innocence" requirement for
review of abusive, successive, or defaulted claims, however, the
majority would now take the position that "the claim of `actual
innocence' is not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits."
Ante, at 13.  In other words, having held that a prisoner who is
incarcerated in violation of the Constitution must show he is
actually innocent to obtain relief, the majority would now hold
that a prisoner who is actually innocent must show a
constitutional violation to obtain relief.  The only principle
that would appear to reconcile these two positions is the
principle that habeas relief should be denied whenever possible.

III

    The Eighth and Fourteenth Amendments, of course, are
binding on the States, and one would normally expect the States
to adopt procedures to consider claims of actual innocence based
on newly discovered evidence.  See Ford v. Wainwright, 477 U. S.,
at 411-417 (plurality opinion) (minimum requirements for
state-court proceeding to determine competency to be executed).
The majority's disposition of this case, however, leaves the
States uncertain of their constitutional obligations.

A

    Whatever procedures a State might adopt to hear actual
innocence claims, one thing is certain:  The possibility of
executive clemency is not sufficient to satisfy the requirements
of the Eighth and Fourteenth Amendments.  The majority correctly
points out: "A pardon is an act of grace." Ante, at 22.  The
vindication of rights guaranteed by the Constitution has never
been made to turn on the unreviewable discretion of an executive
official or administrative tribunal.  Indeed, in Ford v.
Wainwright, we explicitly rejected the argument that executive
clemency was adequate to vindicate the Eighth Amendment right not
to be executed if one is insane.  477 U. S., at 416.  The
possibility of executive clemency "exists in every case in which
a defendant challenges his sentence under the Eighth Amendment.
Recognition of such a bare possibility would make judicial review
under the Eighth Amendment meaningless." Solem v. Helm, 463 U. S.
277, 303 (1983).

    "The government of the United States has been
emphatically termed a government of laws, and not of men.  It
will certainly cease to deserve this high appellation, if the
laws furnish no remedy for the violation of a vested legal
right." Marbury v. Madison, 1 Cranch 137, 163 (1803). If the
exercise of a legal right turns on -an act of grace,- then we no
longer live under a government of laws. "The very purpose of a
Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal
principles to be applied by the courts." West Virginia State
Board of Education v.  Barnette, 319 U. S. 624, 638 (1943).  It
is understandable, therefore, that the majority does not say that
the vindication of petitioner's constitutional rights may be left
to executive clemency.

B

    Like other constitutional claims, Eighth and Fourteenth
Amendment claims of actual innocence advanced on behalf
of a state prisoner can and should be heard in state court.  If a
State provides a judicial procedure for raising such claims, the
prisoner may be required to exhaust that procedure before taking
his claim of actual innocence to federal court.  See 28 U. S. C.
2254(b) and (c).  Furthermore, state-court determinations of
factual issues relating to the claim would be entitled to a
presumption of correctness in any subsequent federal habeas
proceeding.  See 28 U. S. C. 2254(d).

    Texas provides no judicial procedure for hearing
petitioner's claim of actual innocence and his habeas petition
was properly filed in district court under 28 U. S. C.  2254.
The district court is entitled to dismiss the petition summarily
only if "it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to
relief." 28 U. S. C. 2254 Rule 4.  If, as is the case here, the
petition raises factual questions and the State has failed to
provide a full and fair hearing, the district court is required
to hold an evidentiary hearing.  Townsend v. Sain, 372 U. S., at
313.

    Because the present federal petition is petitioner's
second, he must either show cause for and prejudice from failing
to raise the claim in his first petition or show that he falls
within the -actual-innocence- exception to the cause and
prejudice requirement.  McCleskey v. Zant, 499 U.S., at ___ (slip
op. 25-26).  If petitioner can show that he is entitled to relief
on the merits of his actual-innocence claim, however, he
certainly can show that he falls within the -actual-innocence-
exception to the cause and prejudice requirement and McCleskey
would not bar relief.

C

    The question that remains is what showing should be
required to obtain relief on the merits of an Eighth or
Fourteenth Amendment claim of actual innocence.  I agree with the
majority that "in state criminal proceedings the trial is the
paramount event for determining the guilt or innocence of the
defendant." Ante, at 25.  I also think that -a truly persuasive
demonstration of `actual innocence' made after trial would render
the execution of a defendant unconstitutional.- Ante, at 26.  The
question is what -a truly persuasive demonstration- entails, a
question the majority's disposition of this case leaves open.

    In articulating the -actual-innocence- exception in our
habeas jurisprudence, this Court has adopted a standard requiring
the petitioner to show a -`fair probability that, in light of all
the evidence . . . , the trier of facts would have entertained a
reasonable doubt of his guilt.'- Kuhlmann v. Wilson, 477 U. S.,
at 455, n. 17.  In other words, the habeas petitioner must show
that there probably would be a reasonable doubt.  See also Murray
v.  Carrier, 477 U. S., at 496 (exception applies when a
constitutional violation has -probably resulted- in a mistaken
conviction); McCleskey v. Zant, 499 U.S., at ___ (slip op. 25)
(exception applies when a constitutional violation -probably has
caused- a mistaken conviction).

    I think the standard for relief on the merits of an
actual-innocence claim must be higher than the threshold standard
for merely reaching that claim or any other claim that has been
procedurally defaulted or is successive or abusive.  I would hold
that, to obtain relief on a claim of actual innocence, the
petitioner must show that he probably is innocent.  This standard
is supported by several considerations.  First, new evidence of
innocence may be discovered long after the defendant's
conviction.  Given the passage of time, it may be difficult for
the State to retry a defendant who obtains relief from his
conviction or sentence on an actual-innocence claim.  The
actual-innocence proceeding thus may constitute the final word on
whether the defendant may be punished.  In light of this fact, an
otherwise constitutionally valid conviction or sentence should
not be set aside lightly.  Second, conviction after a
constitutionally adequate trial strips the defendant of the
presumption of innocence.  The government bears the burden of
proving the defendant's guilt beyond a reasonable doubt, Jackson
v. Virginia, 443 U.S. 307, 315 (1979); In re Winship, 397 U. S.
358, 364 (1970), but once the government has done so, the burden
of proving innocence must shift to the convicted defendant.  The
actual-innocence inquiry is therefore distinguishable from review
for sufficiency of the evidence, where the question is not
whether the defendant is innocent but whether the government has
met its constitutional burden of proving the defendant's guilt
beyond a reasonable doubt.  When a defendant seeks to challenge
the determination of guilt after he has been validly convicted
and sentenced, it is fair to place on him the burden of proving
his innocence, not just raising doubt about his guilt.

    In considering whether a prisoner is entitled to relief
on an actual-innocence claim, a court should take all the
evidence into account, giving due regard to its reliability.  See
Sawyer v. Whitley, 505 U. S., at ___, n. 5 (1992) (slip op. 5, n.
5); Kuhlmann v. Wilson, 477 U. S., at 455, n. 17; Friendly, 38 U.
Chi. L. Rev., at 160.  Because placing the burden on the prisoner
to prove innocence creates a presumption that the conviction is
valid, it is not necessary or appropriate to make further
presumptions about the reliability of newly discovered evidence
generally.  Rather, the court charged with deciding such a claim
should make a case-by-case determination about the reliability of
the newly discovered evidence under the circumstances.  The court
then should weigh the evidence in favor of the prisoner against
the evidence of his guilt.  Obviously, the stronger the evidence
of the prisoner's guilt, the more persuasive the newly discovered
evidence of innocence must be.  A prisoner raising an actual-
innocence claim in a federal habeas petition is not entitled to
discovery as a matter of right.  Harris v. Nelson, 394 U.S. 286,
295 (1969); 28 U. S. C. 2254 Rule 6.  The district court retains
discretion to order discovery, however, when it would help the
court make a reliable determination with respect to the
prisoner's claim.  Harris v. Nelson, 395 U. S., at 299-300; see
Advisory Committee Note to 28 U. S. C. 2254 Rule 6.

    It should be clear that the standard I would adopt would
not convert the federal courts into -`forums in which to
relitigate state trials.'- Ante, at 9, quoting Barefoot v.
Estelle, 463 U. S. 880, 887 (1983).  It would not "require the
habeas court to hear testimony from the witnesses who testified
at the trial," ante, at 11, though, if the petition warrants a
hearing, it may require the habeas court to hear the testimony of
-those who made the statements in the affidavits which petitioner
has presented.- Ibid.  I believe that if a prisoner can show that
he is probably actually innocent, in light of all the evidence,
then he has made -a truly persuasive demonstration,- ante, at 26,
and his execution would violate the Constitution.  I would so
hold.

IV

    In this case, the District Court determined that
petitioner's newly discovered evidence warranted further
consideration.  Because the District Court doubted its own
authority to consider the new evidence, it thought that
petitioner's claim of actual innocence should be brought in state
court, see App. 38-39, but it clearly did not think that
petitioner's evidence was so insubstantial that it could be
dismissed without any hearing at all.  I would reverse the order
of the Court of Appeals and remand the case to the District Court
to consider whether petitioner has shown, in light of all the
evidence, that he is probably actually innocent.

    I think it is unwise for this Court to step into the
shoes of a district court and rule on this petition in the first
instance.  If this Court wishes to act as a district court,
however, it must also be bound by the rules that govern
consideration of habeas petitions in district court.  A district
court may summarily dismiss a habeas petition only if -it plainly
appears from the face of the petition and any exhibits annexed to
it that the petitioner is not entitled to relief.- 28 U.S.C. 2254
Rule 4.  In one of the affidavits, Hector Villarreal, a licensed
attorney and former state court judge, swears under penalty of
perjury that his client Raul Herrera confessed that he, and not
petitioner, committed the murders.  No matter what the majority
may think of the inconsistencies in the affidavits or the
strength of the evidence presented at trial, this affidavit alone
is sufficient to raise factual questions concerning petitioner's
innocence that cannot be resolved simply by examining the
affidavits and the petition.

    I do not understand why the majority so severely faults
petitioner for relying only on affidavits.  Ante, at 26.  It is
common to rely on affidavits at the preliminary-consideration
stage of a habeas proceeding.  The opportunity for
cross-examination and credibility determinations comes at the
hearing, assuming that the petitioner is entitled to one.  It
makes no sense for this Court to impugn the reliability of
petitioner's evidence on the ground that its credibility has not
been tested when the reason its credibility has not been tested
is that petitioner's habeas proceeding has been truncated by the
Court of Appeals and now by this Court.  In its haste to deny
petitioner relief, the majority seems to confuse the question
whether the petition may be dismissed summarily with the question
whether petitioner is entitled to relief on the merits of his
claim.

V

    I have voiced disappointment over this Court's obvious
eagerness to do away with any restriction on the States' power to
execute whomever and however they please.  See Coleman v.
Thompson, 501 U. S. ___, ___ (1991) (slip op. 1) (dissenting
opinion).  See also Coleman v. Thompson, 504 U. S. ___ (1992)
(dissent from denial of stay of execution).  I have also
expressed doubts about whether, in the absence of such
restrictions, capital punishment remains constitutional at all.
Sawyer v. Whitley, 505 U.S., at ___ (slip op. 8-11) (opinion
concurring in the judgment).  Of one thing, however, I am
certain.  Just as an execution without adequate safeguards is
unacceptable, so too is an execution when the condemned prisoner
can prove that he is innocent.  The execution of a person who can
show that he is innocent comes perilously close to simple murder.