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/* Many lawyers and law students find this case to perhaps be the
"case of the year" within constitutional law. The case is over
the rather strange proposition that is it, or is it not,
unconstitutional to execute someone who is in fact innocent of
the capital crime for which they are to be executed. Read on for
the answer. */

NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the
time the opinion is issued.  The syllabus constitutes no part of
the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader.  See United States
v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HERRERA v. COLLINS, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 91-7328.  Argued October 7, 1992-Decided January 25, 1993

On the basis of proof which included two eyewitness
identifications, numerous pieces of circumstantial evidence, and
petitioner Herrera's handwritten letter impliedly admitting his
guilt, Herrera was convicted of the capital murder of Police
Officer Carrisalez and sentenced to death in January 1982.  After
pleading guilty, in July 1982, to the related capital murder of
Officer Rucker, Herrera unsuccessfully challenged the Carrisalez
conviction on direct appeal and in two collateral proceedings in
the Texas state courts, and in a federal habeas petition.  Ten
years after his conviction, he urged in a second federal habeas
proceeding that newly discovered evidence demonstrated that he
was "actually innocent" of the murders of Carrisalez and Rucker,
and that the Eighth Amendment's prohibition against cruel and
unusual punishment and the Fourteenth Amendment's due process
guarantee therefore forbid his execution. He supported this claim
with affidavits tending to show that his now-dead brother had
committed the murders.  The District Court, inter alia, granted
his request for a stay of execution so that he could present his
actual innocence claim and the supporting affidavits in state
court.  In vacating the stay, the Court of Appeals held that the
claim was not cognizable on federal habeas absent an accompanying
federal constitutional violation.

Held:  Herrera's claim of actual innocence does not entitle him
to federal habeas relief.  Pp. 6-28.

 (a) Herrera's constitutional claim for relief based upon
his newly discovered evidence of innocence must be evaluated in
light of the previous 10 years of proceedings in this case.  In
criminal cases, the trial is the paramount event for determining

the defendant's guilt or innocence.  Where, as here, a defendant
has been afforded a fair trial and convicted of the offense for
which he was charged, the constitutional presumption of innocence
disappears.  Federal habeas courts do not sit to correct errors
of fact, but to ensure that individuals are not imprisoned in
violation of the Constitution.  See, e.g., Moore v.  Dempsey, 261
U. S. 86, 87-88.  Thus, claims of actual innocence based on newly
discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional
violation occurring in the course of the underlying state
criminal proceedings.  See Townsend v. Sain, 372 U. S. 293, 317.
The rule that a petitioner subject to defenses of abusive or
successive use of the habeas writ may have his federal
constitutional claim considered on the merits if he makes a
proper showing of actual innocence, see, e.g., Sawyer v. Whitley,
505 U. S. ___, ___, is inapplicable in this case.  For Herrera
does not seek relief from a procedural error so that he may bring
an independent constitutional claim challenging his conviction or
sentence, but rather argues that he is entitled to habeas relief
because new evidence shows that his conviction is factually
incorrect.  To allow a federal court to grant him typical habeas
relief-a conditional order releasing him unless the State elects
to retry him or vacating his death sentence-would in effect
require a new trial 10 years after the first trial, not because
of any constitutional violation at the first trial, but simply
because of a belief that in light of his new found evidence a
jury might find him not guilty at a second trial.  It is far from
clear that this would produce a more reliable determination of
guilt or innocence, since the passage of time only diminishes the
reliability of criminal adjudications.  Jackson v.  Virginia, 443
U. S. 307, Ford v. Wainwright, 477 U. S. 399, and Johnson v.
Mississippi, 486 U. S. 578, distinguished.  Pp. 6-15.

 (b) Herrera's contention that the Fourteenth Amendment's
due process guarantee supports his claim that his showing of
innocence entitles him to a new trial, or at least to a vacation
of his death sentence, is unpersuasive.  Because state
legislative judgments are entitled to substantial deference in
the criminal procedure area, criminal process will be found
lacking only where it offends some principle of justice so rooted
in tradition and conscience as to be ranked as fundamental.  See,
e.g., Patterson v. New York, 432 U. S.  197, 202. It cannot be
said that the refusal of Texas-which requires a new trial motion
based on newly discovered evidence to be made within 30 days of
imposition or suspension of sentence-to entertain Herrera's new
evidence eight years after his conviction transgresses a
principle of fundamental fairness, in light of the Constitution's
silence on the subject of new trials, the historical availability
of new trials based on newly discovered evidence, this Court's
amendments to Federal Rule of Criminal Procedure 33 to impose a
time limit for filing new trial motions based on newly discovered
evidence, and the contemporary practice in the States, only nine
of which have no time limits for the filing of such motions.  Pp.
15-20.
    (c) Herrera is not left without a forum to raise his actual
innocence claim.  He may file a request for clemency under Texas
law, which contains specific guidelines for pardons on the ground
of innocence.  History shows that executive clemency is the
traditional "fail safe" remedy for claims of innocence based on
new evidence, discovered too late in the day to file a new trial
motion.  Pp. 20-26.

 (d) Even assuming, for the sake of argument, that in a
capital case a truly persuasive post-trial demonstration of
"actual innocence" would render a defendant's execution
unconstitutional and warrant federal habeas relief if there were
no state avenue open to process such a claim, Herrera's showing
of innocence falls far short of the threshold showing which would
have to be made in order to trigger relief.  That threshold would
necessarily be extraordinarily high because of the very
disruptive effect that entertaining such claims would have on the
need for finality in capital cases, and the enormous burden that
having to retry cases based on often stale evidence would place
on the States.  Although not without probative value, Herrera's
affidavits are insufficient to meet such a standard, since they
were obtained without the benefit of cross-examination and an
opportunity to make credibility determinations; consist, with one
exception, of hearsay; are likely to have been presented as a
means of delaying Herrera's sentence; were produced not at the
trial, but over eight years later and only after the death of the
alleged perpetrator, without a satisfactory explanation for the
delay or for why Herrera pleaded guilty to the Rucker murder;
contain inconsistencies, and therefore fail to provide a
convincing account of what took place on the night of the
murders; and do not overcome the strong proof of Herrera's guilt
that was presented at trial.  Pp. 26-28.  954 F. 2d 1029,
affirmed.

 Rehnquist, C. J., delivered the opinion of the Court, in
which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined.
O'Connor, J., filed a concurring opinion, in which Kennedy, J.,
joined.  Scalia, J., filed a concurring opinion, in which Thomas,
J., joined.  White, J., filed an opinion concurring in the
judgment.  Blackmun, J., filed a dissenting opinion, in Parts I,
II, III, and IV of which Stevens and Souter, JJ., joined.

 Chief Justice Rehnquist delivered the opinion of the
Court.

Petitioner Leonel Torres Herrera was convicted of capital murder
and sentenced to death in January 1982.  He unsuccessfully
challenged the conviction on direct appeal and state collateral
proceedings in the Texas state courts, and in a federal habeas
petition.  In February 1992-10 years after his conviction- he
urged in a second federal habeas petition that he was -actually
innocent- of the murder for which he was sentenced to death, and
that the Eighth Amendment's prohibition against cruel and unusual
punishment and the Fourteenth Amendment's guarantee of due
process of law therefore forbid his execution.  He supported this
claim with affidavits tending to show that his now-dead brother,
rather than he, had been the perpetrator of the crime.
Petitioner urges us to hold that this showing of innocence
entitles him to relief in this federal habeas proceeding.  We
hold that it does not.

 Shortly before 11 p.m. on an evening in late September
1981, the body of Texas Department of Public Safety Officer David
Rucker was found by a passerby on a stretch of highway about six
miles east of Los Fresnos, Texas, a few miles north of
Brownsville in the Rio Grande Valley.  Rucker's body was lying
beside his patrol car.  He had been shot in the head.

 At about the same time, Los Fresnos Police Officer
Enrique Carrisalez observed a speeding vehicle traveling west
towards Los Fresnos, away from the place where Rucker's body had
been found, along the same road.  Carrisalez, who was accompanied
in his patrol car by Enrique Hernandez, turned on his flashing
red lights and pursued the speeding vehicle.  After the car had
stopped briefly at a red light, it signaled that it would pull
over and did so.  The patrol car pulled up behind it.  Carrisalez
took a flashlight and walked toward the car of the speeder.  The
driver opened his door and exchanged a few words with Carrisalez
before firing at least one shot at Carrisalez' chest.  The
officer died nine days later.

 Petitioner Herrera was arrested a few days after the
shootings and charged with the capital murder of both Carrisalez
and Rucker.  He was tried and found guilty of the capital murder
of Carrisalez in January 1982, and sentenced to death.  In July
1982, petitioner pleaded guilty to the murder of Rucker.

 At petitioner's trial for the murder of Carrisalez,
Hernandez, who had witnessed Carrisalez' slaying from the
officer's patrol car, identified petitioner as the person who had
wielded the gun.  A declaration by Officer Carrisalez to the same
effect, made while he was in the hospital, was also admitted.
Through a license plate check, it was shown that the speeding car
involved in Carrisalez' murder was registered to petitioner's
"live-in" girlfriend.  Petitioner was known to drive this car,
and he had a set of keys to the car in his pants pocket when he
was arrested.  Hernandez identified the car as the vehicle from
which the murderer had emerged to fire the fatal shot.  He also
testified that there had been only one person in the car that
night.

 The evidence showed that Herrera's Social Security card
had been found alongside Rucker's patrol car on the night he was
killed.  Splatters of blood on the car identified as the vehicle
involved in the shootings, and on petitioner's blue jeans and
wallet were identified as type A blood-the same type which Rucker
had.  (Herrera has type O blood.) Similar evidence with respect
to strands of hair found in the car indicated that the hair was
Rucker's and not Herrera's.  A handwritten letter was also found
on the person of petitioner when he was arrested, which strongly
implied that he had killed Rucker.

 Petitioner appealed his conviction and sentence, arguing,
among other things, that Hernandez' and Carrisalez'
identifications were unreliable and improperly admitted.  The
Texas Court of Criminal Appeals affirmed, Herrera v. State, 682
S. W. 2d 313 (1984), and we denied certiorari, 471 U. S. 1131
(1985).  Petitioner's application for state habeas relief was
denied.  Ex parte Herrera, No. 12,848-02 (Tex. Crim. App., Aug.
2, 1985).  Petitioner then filed a federal habeas petition, again
challenging the identifications offered against him at trial.
This petition was denied, see 904 F. 2d 944 (CA5), and we again
denied certiorari.  498 U. S. 925 (1990).

/* The point here is that there is a great deal of evidence of
guilt. */

 Petitioner next returned to state court and filed a
second habeas petition, raising, among other things, a claim of
"actual innocence" based on newly discovered evidence.  In
support of this claim petitioner presented the affidavits of
Hector Villarreal, an attorney who had represented petitioner's
brother, Raul Herrera, Sr., and of Juan Franco Palacious, one of
Raul Sr.'s former cellmates.  Both individuals claimed that Raul
Sr., who died in 1984, had told them that he- and not petitioner-
had killed Officers Rucker and Carrisalez.  The State District
Court denied this application, finding that "no evidence at trial
remotely suggest[ed] that anyone other than [petitioner]
committed the offense." Ex parte Herrera, No. 81-CR- 672-C (Tex.
197th Jud. Dist., Jan. 14, 1991), -35.  The Texas Court of
Criminal Appeals affirmed, Ex parte Herrera, 819 S. W. 2d 528
(1991), and we denied certiorari, Herrera v. Texas, 502 U. S. ---
(1992).

 In February 1992, petitioner lodged the instant habeas
petition-his second-in federal court, alleging, among other
things, that he is innocent of the murders of Rucker and
Carrisalez, and that his execution would thus violate the Eighth
and Fourteenth Amendments.  In addition to proffering the above
affidavits, petitioner presented the affidavits of Raul Herrera,
Jr., Raul Sr.'s son, and Jose Ybarra, Jr., a schoolmate of the
Herrera brothers.  Raul Jr. averred that he had witnessed his
father shoot Officers Rucker and Carrisalez and petitioner was
not present.  Raul Jr. was nine years old at the time of the
killings.  Ybarra alleged that Raul Sr. told him one summer night
in 1983 that he had shot the two police officers.  Petitioner
alleged that law enforcement officials were aware of this
evidence, and had withheld it in violation of Brady v. Maryland,
373 U. S. 83 (1963).

 The District Court dismissed most of petitioner's claims
as an abuse of the writ.  No. M-92-30 (SD Tex. Feb. 17, 1992).
However, "in order to ensure that Petitioner can assert his
constitutional claims and out of a sense of fairness and due
process," the District Court granted petitioner's request for a
stay of execution so that he could present his claim of actual
innocence, along with the Raul Jr. and Ybarra affidavits, in
state court.  App. 38-39. Although it initially dismissed
petitioner's Brady claim on the ground that petitioner had failed
to present "any evidence of withholding exculpatory material by
the prosecution," App. 37, the District Court also granted an
evidentiary hearing on this claim after reconsideration, id., at
54.

/* An unusual step of remanding a matter to a state court which
might not want to deal with the case. */

 The Court of Appeals vacated the stay of execution.  954
F. 2d 1029 (CA5 1992).  It agreed with the District Court's
initial conclusion that there was no evidentiary basis for
petitioner's Brady claim, and found disingenuous petitioner's
attempt to couch his claim of actual innocence in Brady terms.
954 F. 2d, at 1032.  Absent an accompanying constitutional
violation, the Court of Appeals held that petitioner's claim of
actual innocence was not cognizable because, under Townsend v.
Sain, 372 U. S. 293, 317 (1963), "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." See 954 F. 2d
at 1034.  We granted certiorari, 502 U. S. --- (1992), and the
Texas Court of Criminal Appeals stayed petitioner's execution.
We now affirm.

 Petitioner asserts that the Eighth and Fourteenth
Amendments to the United States Constitution prohibit
the execution of a person who is innocent of the crime for which
he was convicted.  This proposition has an elemental appeal, as
would the similar proposition that the Constitution prohibits the
imprisonment of one who is innocent of the crime for which he was
convicted.  After all, the central purpose of any system of
criminal justice is to convict the guilty and free the innocent.
See United States v. Nobles, 422 U. S. 225, 230 (1975).  But the
evidence upon which petitioner's claim of innocence rests was not
produced at his trial, but rather eight years later.  In any
system of criminal justice, -innocence- or -guilt- must be
determined in some sort of a judicial proceeding.  Petitioner's
showing of innocence, and indeed his constitutional claim for
relief based upon that showing, must be evaluated in the light of
the previous proceedings in this case, which have stretched over
a span of 10 years.

/* The time span on the raising of the claim is stated as an
additional factor in discrediting the claims of the petitioner.
*/

 A person when first charged with a crime is entitled to a
presumption of innocence, and may insist that his guilt be
established beyond a reasonable doubt.  In re Winship, 397 U. S.
358 (1970).  Other constitutional provisions also have the effect
of ensuring against the risk of convicting an innocent person.
See, e.g., Coy v. Iowa, 487 U. S.  1012 (1988) (right to confront
adverse witnesses); Taylor v. Illinois, 484 U. S. 400 (1988)
(right to compulsory process); Strickland v. Washington, 466 U.
S. 668 (1984) (right to effective assistance of counsel);
Winship, supra (prosecution must prove guilt beyond a reasonable
doubt); Duncan v. Louisiana, 391 U. S. 145 (1968) (right to jury
trial); Brady v. Maryland, 373 U. S. 83 (1963) (prosecution must
disclose exculpatory evidence); Gideon v. Wainwright, 372 U. S.
335 (1963) (right to assistance of counsel); In re Murchison, 349
U. S. 133, 136 (1955) (right to "fair trial in a fair tribunal").
In capital cases, we have required additional protections because
of the nature of the penalty at stake.  See, e.g., Beck v.
Alabama, 447 U. S. 625 (1980) (jury must be given option of
convicting the defendant of a lesser offense).  All of these
constitutional safeguards, of course, make it more difficult for
the State to rebut and finally overturn the presumption of
innocence which attaches to every criminal defendant.  But we
have also observed that "[d]ue process does not require that
every conceivable step be taken, at whatever cost, to eliminate
the possibility of convicting an innocent person." Patterson v.
New York, 432 U.S. 197, 208 (1977).  To conclude otherwise would
all but paralyze our system for enforcement of the criminal law.

 Once a defendant has been afforded a fair trial and
convicted of the offense for which he was charged, the
presumption of innocence disappears.  Cf. Ross v. Moffitt, 417 U.
S. 600, 610 (1974) ("The purpose of the trial stage from the
State's point of view is to convert a criminal defendant from a
person presumed innocent to one found guilty beyond a reasonable
doubt").  Here, it is not disputed that the State met its burden
of proving at trial that petitioner was guilty of the capital
murder of Officer Carrisalez beyond a reasonable doubt.  Thus, in
the eyes of the law, petitioner does not come before the Court as
one who is -innocent,- but on the contrary as one who has been
convicted by due process of law of two brutal murders.

 Based on affidavits here filed, petitioner claims that
evidence never presented to the trial court proves him innocent
notwithstanding the verdict reached at his trial.  Such a claim
is not cognizable in the state courts of Texas.  For to obtain a
new trial based on newly discovered evidence, a defendant must
file a motion within 30 days after imposition or suspension of
sentence.  Tex.  Rule App. Proc. 31(a)(1) (1992).  The Texas
courts have construed this 30-day time limit as jurisdictional.
See Beathard v. State, 767 S. W. 2d 423, 433 (Tex. Crim. App.
1989); Drew v. State, 743 S. W. 2d 207, 222-223 (Tex.  Crim. App.
1987).

/* A fascinating rule which is absurd. If the evidence is truly
"newly discovered" 31 days after the case is over, then it can
never be presented? */

 Claims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.  Chief
Justice Warren made this clear in Townsend v. Sain, 372 U. S.
293, 317 (1963) (emphasis added):

       Where newly discovered evidence is alleged in a habeas
      application, evidence which could not reasonably have
      been presented to the state trier of facts, the federal
      court must grant an evidentiary hearing.  Of course,
      such evidence must bear upon the constitutionality of
      the applicant's detention; 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.

This rule is grounded in the principle that federal habeas courts
sit to ensure that individuals are not imprisoned in violation of
the Constitution-not to correct errors of fact.  See, e.g., Moore
v. Dempsey, 261 U. S. 86, 87-88 (1923) (Holmes, J.) ("[W]hat we
have to deal with [on habeas review] is not the petitioners'
innocence or guilt but solely the question whether their
constitutional rights have been preserved"); Hyde v. Shine, 199
U. S. 62, 84 (1905) ("[I]t is well settled that upon habeas
corpus the court will not weigh the evidence") (emphasis in
original); Ex parte Terry, 128 U. S. 289, 305 (1888) ("As the
writ of habeas corpus does not perform the office of a writ of
error or an appeal, [the facts establishing guilt] cannot be
re-examined or reviewed in this collateral proceeding") (emphasis
in original).

 More recent authority construing federal habeas statutes
speaks in a similar vein. "Federal courts are not forums
in which to relitigate state trials." Barefoot v. Estelle, 463
U.S. 880, 887 (1983).  The guilt or innocence determination in
state criminal trials is "a decisive and portentous event."
Wainwright v. Sykes, 433 U. S. 72, 90 (1977). "Society's
resources have been concentrated at that time and place in order
to decide, within the limits of human fallibility, the question
of guilt or innocence of one of its citizens." Ibid.  Few rulings
would be more disruptive of our federal system than to provide
for federal habeas review of free-standing claims of actual
innocence.

 Our decision in Jackson v. Virginia, 443 U. S. 307
(1979), comes as close to authorizing evidentiary review of a
state court conviction on federal habeas as any of our cases.
There, we held that a federal habeas court may review a claim
that the evidence adduced at a state trial was not sufficient to
convict a criminal defendant beyond a reasonable doubt.  But in
so holding, we emphasized:  "[T]his inquiry does not require a
court to `ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.' Instead, 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.  This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Id., at
318-319 (citations omitted) (emphasis in original)." We
specifically noted that "the standard announced . . .  does not
permit a court to make its own subjective determination of guilt
or innocence." Id., at 320, n. 13.

 The type of federal habeas review sought by petitioner
here is different in critical respects than that authorized by
Jackson.  First, the Jackson inquiry is aimed at determining
whether there has been an independent constitutional violation-
i.e., a conviction based on evidence that fails to meet the
Winship standard.  Thus, federal habeas courts act in their
historic capacity- to assure that the habeas petitioner is not
being held in violation of his or her federal constitutional
rights.  Second, the sufficiency of the evidence review
authorized by Jackson is limited to -record evidence.- 443 U. S.,
at 318.  Jackson does not extend to nonrecord evidence, including
newly discovered evidence.  Finally, the Jackson inquiry does not
focus on whether the trier of fact made the correct guilt or
innocence determination, but rather whether it made a rational
decision to convict or acquit.

 Petitioner is understandably imprecise in describing the
sort of federal relief to which a suitable showing of actual
innocence would entitle him.  In his brief he states that the
federal habeas court should have "an important initial
opportunity to hear the evidence and resolve the merits
of Petitioner's claim." Brief for Petitioner 42.  Acceptance of
this view would presumably require the habeas court
to hear testimony from the witnesses who testified at trial as
well as those who made the statements in the affidavits which
petitioner has presented, and to determine anew whether or not
petitioner is guilty of the murder of Officer Carrisalez.
Indeed, the dissent's approach differs little from that
hypothesized here.

 The dissent would place the burden on petitioner to show
that he is -probably- innocent.  Post, at 14-15.  Although
petitioner would not be entitled to discovery -as a matter of
right,- the District Court would retain its "discretion to order
discovery . . . when it would help the court make a reliable
determination with respect to the prisoner's claim." Post, at 16.
And although the District Court would not be required to hear
testimony from the witnesses who testified at trial or the
affiants upon whom petitioner relies, it would allow the District
Court to do so "if the petition warrants a hearing." Post, at 16.
At the end of the day, the dissent would have the District Court
"make a case-by-case determination about the reliability of newly
discovered evidence under the circumstances," and then "weigh the
evidence in favor of the prisoner against the evidence of his
guilt." Post, at 15.

 The dissent fails to articulate the relief that would be
available if petitioner were to meets its "probable innocence"
standard.  Would it be commutation of petitioner's death
sentence, new trial, or unconditional release from imprisonment?
The typical relief granted in federal habeas corpus is a
conditional order of release unless the State elects to retry the
successful habeas petitioner, or in a capital case a similar
conditional order vacating the death sentence.  Were petitioner
to satisfy the dissent's -probable innocence- standard,
therefore, the District Court would presumably be required to
grant a conditional order of relief, which would in effect
require the State to retry petitioner 10 years after his first
trial, not because of any constitutional violation which had
occurred at the first trial, but simply because of a belief that
in light of petitioner's new found evidence a jury might find him
not guilty at a second trial.

 Yet there is no guarantee that the guilt or innocence
determination would be any more exact.  To the contrary, the
passage of time only diminishes the reliability of criminal
adjudications.  See McCleskey v. Zant, 499 U. S.  --- (1991)
(slip op., at 22) ("[W]hen a habeas petitioner succeeds in
obtaining a new trial, the `erosion of memory and dispersion of
witnesses that occur with the passage of time' prejudice the
government and diminish the chances of a reliable criminal
adjudication") (quoting Kuhlmann v. Wilson, 477 U. S. 436, 453
(1986) (plurality opinion) (internal quotation marks omitted;
citation omitted)); United States v. Smith, 331 U. S. 469, 476
(1947).  Under the dissent's approach, the District Court would
be placed in the even more difficult position of having to weigh
the probative value of -hot- and -cold- evidence on petitioner's
guilt or innocence.

 This is not to say that our habeas jurisprudence casts a
blind eye towards innocence.  In a series of cases culminating
with Sawyer v. Whitley, 505 U. S. --- (1992), decided last Term,
we have held that a petitioner otherwise subject to defenses of
abusive or successive use of the writ may have his federal
constitutional claim considered on the merits if he makes a
proper showing of actual innocence.  This rule, or fundamental
miscarriage of justice exception, is grounded in the "equitable
discretion" of habeas courts to see that federal constitutional
errors do not result in the incarceration of innocent persons.
See McCleskey, supra, at --- (slip op., at 33).  But this body of
our habeas jurisprudence makes clear that a 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.

 Petitioner in this case is simply not entitled to habeas
relief based on the reasoning of this line of cases.  For he does
not seek excusal of a procedural error so that he may bring an
independent constitutional claim challenging his conviction or
sentence, but rather argues that he is entitled to habeas relief
because newly discovered evidence shows that his conviction is
factually incorrect.  The fundamental miscarriage of justice
exception is available "only where the prisoner supplements his
constitutional claim with a colorable showing of factual
innocence." Kuhlmann, supra, at 454 (emphasis added).  We have
never held that it extends to free-standing claims of actual
innocence.  Therefore, the exception is inapplicable here.

 Petitioner asserts that this case is different because he
has been sentenced to death.  But we have "refused to hold that
the fact that a death sentence has been imposed requires a
different standard of review on federal habeas corpus." Murray v.
Giarratano, 492 U. S. 1, 9 (1989) (plurality opinion).  We have,
of course, held that the Eighth Amendment requires increased
reliability of the process by which capital punishment may be
imposed.  See, e.g., McKoy v. North Carolina, 494 U. S. 433
(1990) (unanimity requirement impermissibly limits jurors'
consideration of mitigating evidence); Eddings v.  Oklahoma, 455
U. S. 105 (1982) (jury must be allowed to consider all of a
capital defendant's mitigating character evidence); Lockett v.
Ohio, 438 U. S. 586, 604 (1978) (plurality opinion) (same).  But
petitioner's claim does not fit well into the doctrine of these
cases, since, as we have pointed out, it is far from clear that a
second trial 10 years after the first trial would produce a more
reliable result.

 Perhaps mindful of this, petitioner urges not that he
necessarily receive a new trial, but that his death sentence
simply be vacated if a federal habeas court deems that a
satisfactory showing of -actual innocence- has been made.  Tr. of
Oral Arg. 19-20.  But such a result is scarcely logical;
petitioner's claim is not that some error was made in imposing a
capital sentence upon him, but that a fundamental error was made
in finding him guilty of the underlying murder in the first
place.  It would be a rather strange jurisprudence, in these
circumstances, which held that under our Constitution he could
not be executed, but that he could spend the rest of his life in
prison.

 Petitioner argues that our decision in Ford v.
Wainwright, 477 U. S. 399 (1986), supports his position.  The
plurality in Ford held that, because the Eighth Amendment
prohibits the execution of insane persons, certain procedural
protections inhere in the sanity determination.  "[I]f the
Constitution renders the fact or timing of his execution
contingent upon establishment of a further fact," Justice
Marshall wrote, "then that fact must be determined with the high
regard for truth that befits a decision affecting the life or
death of a human being." Id., at 411.  Because the Florida scheme
for determining the sanity of persons sentenced to death failed
"to achieve even the minimal degree of reliability," id., at 413,
the plurality concluded that Ford was entitled to an evidentiary
hearing on his sanity before the District Court.

 Unlike petitioner here, Ford did not challenge the
validity of his conviction.  Rather, he challenged the
constitutionality of his death sentence in view of his claim of
insanity.  Because Ford's claim went to a matter of
punishment-not guilt-it was properly examined within the purview
of the Eighth Amendment.  Moreover, unlike the question of guilt
or innocence, which becomes more uncertain with time for
evidentiary reasons, the issue of sanity is properly considered
in proximity to the execution.  Finally, unlike the sanity
determination under the Florida scheme at issue in Ford, the
guilt or innocence determination in our system of criminal
justice is made "with the high regard for truth that befits a
decision affecting the life or death of a human being." Id., at
411.

 Petitioner also relies on Johnson v. Mississippi, 486
U.S. 578 (1988), where we held that the Eighth Amendment requires
reexamination of a death sentence based in part on a prior felony
conviction which was set aside in the rendering State after the
capital sentence was imposed.  There, the State insisted that it
was too late in the day to raise this point.  But we pointed out
that the Mississippi Supreme Court had previously considered
similar claims by writ of error coram nobis.  Thus, there was no
need to override state law relating to newly discovered evidence
in order to consider Johnson's claim on the merits.  Here, there
is no doubt that petitioner seeks additional process -an
evidentiary hearing on his claim of -actual innocence- based on
newly discovered evidence- which is not available under Texas law
more than 30 days after imposition or suspension of sentence.
Tex. Rule App. Proc. 31(a)(1) (1992).

 Alternatively, petitioner invokes the Fourteenth
Amendment's guarantee of due process of law in support
of his claim that his showing of actual innocence entitles him to
a new trial, or at least to a vacation of his death sentence.
"[B]ecause the States have considerable expertise in matters of
criminal procedure and the criminal process is grounded in
centuries of common-law tradition," we have "exercis[ed]
substantial deference to legislative judgments in this area."
Medina v. California, 505 U. S.  ---, --- (1992) (slip op., at
7-8).  Thus, we have found criminal process lacking only where it
-`offends some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.'-
Ibid. (quoting Patterson v. New York, 432 U. S. 197, 202 (1977)).
"Historical practice is probative of whether a procedural rule
can be characterized as fundamental." 505 U. S., at ---.

 The Constitution itself, of course, makes no mention of
new trials.  New trials in criminal cases were not granted in
England until the end of the 17th century.  And even then, they
were available only in misdemeanor cases, though the writ of
error coram nobis was available for some errors of fact in felony
cases.  Orfield, New Trial in Federal Criminal Cases, 2 Vill. L.
Rev. 293, 304 (1957).  The First Congress provided for new trials
for "reasons for which new trials have usually been granted in
courts of law." Act of Sept. 24, 1789, ch. 20, 17, 1 Stat. 83.
This rule was early held to extend to criminal cases.  See Sparf
and Hansen v. United States, 156 U. S. 51, 175 (1895) (Gray, J.,
dissenting) (citing cases).  One of the grounds upon which new
trials were granted was newly discovered evidence.  See F.
Wharton, Criminal Pleading and Practice 854-874, pp. 584-592 (8th
ed. 1880).

 The early federal cases adhere to the common-law rule
that a new trial may be granted only during the term of court in
which the final judgment was entered.  See, e.g., United States
v. Mayer, 235 U. S. 55, 67 (1914); United States v. Simmons, 27
F. Cas. 1080, (No. 16,289) (CCEDNY 1878).  Otherwise, "the court
at a subsequent term has power to correct inaccuracies in mere
matters of form, or clerical errors." 235 U. S., at 67.  In 1934,
this Court departed from the common-law rule and adopted a time
limit-60 days after final judgment-for filing new trial motions
based on newly discovered evidence.  Rule II(3), Criminal Rules
of Practice and Procedure, 292 U. S. 659, 662.  Four years later,
we amended Rule II(3) to allow such motions in capital cases "at
any time" before the execution took place.  304 U. S. 592, 592
(1938) (codified at 18 U. S. C. 688 (1940)).

 There ensued a debate as to whether this Court should
abolish the time limit for filing new trial motions based on
newly discovered evidence to prevent a miscarriage of justice, or
retain a time limit even in capital cases to promote finality.
See Orfield, supra, at 299-304.  In 1945, we set a two-year time
limit for filing new trial motions based on newly discovered
evidence and abolished the exception for capital cases.  Rule 33,
Federal Rules of Criminal Procedure, 327 U. S. 821, 855-856 ("A
motion for new trial based on the ground of newly discovered
evidence may be made only before or within two years after final
judgment").  We have strictly construed the Rule 33 time limits.
Cf. United States v. Smith, 331 U.S. 469, 473 (1947).  And the
Rule's treatment of new trials based on newly discovered evidence
has not changed since its adoption.

 The American Colonies adopted the English common law
on new trials.  Riddell, New Trial in Present Practice, 27 Yale
L. J. 353, 360 (1917).  Thus, where new trials were available,
motions for such relief typically had to be filed before the
expiration of the term during which the trial was held.  H.
Underhill, Criminal Evidence 579, n. 1 (1898); J. Bassett,
Criminal Pleading and Practice 313 (1885).  Over time, many
States enacted statutes providing for new trials in all types of
cases.  Some States also extended the time period for filing new
trial motions beyond the term of court, but most States required
that such motions be made within a few days after the verdict was
rendered or before the judgment was entered.  See American Law
Institute Code of Criminal Procedure 1040-1042 (Official Draft
1931) (reviewing contemporary new trials rules).

 The practice in the States today, while of limited
relevance to our historical inquiry, is divergent.  Texas is one
of 17 States that requires a new trial motion based on newly
discovered evidence to be made within 60 days of judgment.  One
State adheres to the common-law rule and requires that such a
motion be filed during the term in which judgment was rendered.
Eighteen jurisdictions have time limits ranging between 1 and 3
years, with 10 States and the District of Columbia following the
2-year federal time limit.  Only 15 States allow a new trial
motion based on newly discovered evidence to be filed more than 3
years after conviction.  Of these States, 4 have waivable time
limits of less than 120 days, 2 have waivable time limits of more
than 120 days, and 9 States have no time limits.

 In light of the historical availability of new trials,
our own amendments to Rule 33, and the contemporary
practice in the States, we cannot say that Texas' refusal to
entertain petitioner's newly discovered evidence eight years
after his conviction transgresses a principle of fundamental
fairness "rooted in the traditions and conscience of our people."
Patterson v. New York, 432 U. S., at 202 (internal quotation
marks and citations omitted).  This is not to say, however, that
petitioner is left without a forum to raise his actual innocence
claim.  For under Texas law, petitioner may file a request for
executive clemency.  See Tex. Const., Art. IV., 11; Tex. Code
Crim.  Proc. Ann., Art. 48.01 (Vernon 1979).  Clemency is deeply
rooted in our Anglo-American tradition of law, and is the
historic remedy for preventing miscarriages of justice where
judicial process has been exhausted.

 In England, the clemency power was vested in the Crown
and can be traced back to the 700's.  W. Humbert, The Pardoning
Power of the President 9 (1941).  Blackstone thought this "one of
the great advantages of monarchy in general, above any other form
of government; that there is a magistrate, who has it in his
power to extend mercy, wherever he thinks it is deserved: holding
a court of equity in his own breast, to soften the rigour of the
general law, in such criminal cases as merit an exemption from
punishment." 4 W. Blackstone, Commentaries *397.  Clemency
provided the principal avenue of relief for individuals convicted
of criminal offenses -most of which were capital- because there
was no right of appeal until 1907.  1 L. Radzinowicz, A History
of English Criminal Law 122 (1948).  It was the only means by
which one could challenge his conviction on the ground of
innocence.  United States Dept. of Justice, 3 Attorney General's
Survey of Release Procedures 73 (1939).

 Our Constitution adopts the British model and gives to
the President the "Power to grant Reprieves and Pardons
for Offences against the United States." Art. II, 2, cl. 1.  In
United States v. Wilson, 7 Pet. 150, 160-161 (1833), Chief
Justice Marshall expounded on the President's pardon power:

       As this power had been exercised from time immemorial
      by the executive of that nation whose language is our
      language, and to whose judicial institutions ours bears
      a close resemblance; we adopt their principles
      respecting the operation and effect of a pardon, and
      look into their books for the rules prescribing the
      manner in which it is to be used by the person who
      would avail himself of it.

      A pardon is an act of grace, proceeding from the power
      entrusted with the execution of the laws, which exempts
      the individual, on whom it is bestowed, from the
      punishment the law inflicts for a crime he has
      committed.  It is the private, though official act of
      the executive magistrate, delivered to the individual
      for whose benefit it is intended, and not communicated
      officially to the court.  It is a constituent part of
      the judicial system, that the judge sees only with
      judicial eyes, and knows nothing respecting any
      particular case, of which he is not informed
      judicially.  A private deed, not communicated to him,
      whatever may be its character, whether a pardon or
      release, is totally unknown and cannot be acted on.
      The looseness which would be introduced into judicial
      proceedings, would prove fatal to the great principles
      of justice, if the judge might notice and act upon
      facts not brought regularly into the cause.  Such a
      proceeding, in ordinary cases, would subvert the best
      established principles, and overturn those rules which
      have been settled by the wisdom of ages.

See also Ex parte Garland, 4 Wall. 333, 380-381 (1867); The
Federalist No. 74, pp. 447-449 (C. Rossiter ed. 1961) (A.
Hamilton) ("The criminal code of every country partakes so much
of necessary severity that without an easy access to exceptions
in favor of unfortunate guilt, justice would wear a countenance
too sanguinary and cruel").

 Of course, although the Constitution vests in the
President a pardon power, it does not require the States to enact
a clemency mechanism.  Yet since the British Colonies were
founded, clemency has been available in America.  C. Jensen, The
Pardoning Power in the American States 3-4 (1922).  The original
States were reluctant to vest the clemency power in the
executive.  And although this power has gravitated toward the
executive over time, several States have split the clemency power
between the Governor and an advisory board selected by the
legislature.  See Survey of Release Procedures, supra, at 91-98.
Today, all 36 States that authorize capital punishment have
constitutional or statutory provisions for clemency.

 Executive clemency has provided the -fail safe- in our
criminal justice system.  K. Moore, Pardons: Justice, Mercy, and
the Public Interest 131 (1989).  It is an unalterable fact that
our judicial system, like the human beings who administer it, is
fallible.  But history is replete with examples of wrongfully
convicted persons who have been pardoned in the wake of
after-discovered evidence establishing their innocence.  In his
classic work, Professor Edwin Borchard compiled 65 cases in which
it was later determined that individuals had been wrongfully
convicted of crimes.  Clemency provided the relief mechanism in
47 of these cases; the remaining cases ended in judgments of
acquittals after new trials. E. Borchard, Convicting the Innocent
(1932).  Recent authority confirms that over the past century
clemency has been exercised frequently in capital cases in which
demonstrations of -actual innocence- have been made.  See
M. Radelet, H. Bedau, & C. Putnam, In Spite of Innocence 282-356
(1992).

 In Texas, the Governor has the power, upon the
recommendation of a majority of the Board of Pardons and Paroles,
to grant clemency.  Tex. Const., Art. IV, 11; Tex.  Code Crim.
Proc. Ann.; Art. 48.01 (Vernon 1979).  The board's consideration
is triggered upon request of the individual sentenced to death,
his or her representative, or the Governor herself.  In capital
cases, a request may be made for a full pardon, Tex. Admin. Code,
Tit. 37, 143.1 (West Supp. 1992), a commutation of death sentence
to life imprisonment or appropriate maximum penalty, 143.57, or a
reprieve of execution, 143.43.  The Governor has the sole
authority to grant one reprieve in any capital case not exceeding
30 days.  143.41(a).

 The Texas clemency procedures contain specific guidelines
for pardons on the ground of innocence.  The board will entertain
applications for a recommendation of full pardon because of
innocence upon receipt of the following: "(1) a written unanimous
recommendation of the current trial officials of the court of
conviction; and/or (2) a certified order or judgment of a court
having jurisdiction accompanied by certified copy of the findings
of fact (if any); and (3) affidavits of witnesses upon which the
finding of innocence is based." 143.2.  In this case, petitioner
has apparently sought a 30-day reprieve from the Governor, but
has yet to apply for a pardon, or even a commutation, on the
ground of innocence or otherwise.  Tr. of Oral Arg. 7, 34.

 As the foregoing discussion illustrates, in state
criminal proceedings the trial is the paramount event for
determining the guilt or innocence of the defendant.  Federal
habeas review of state convictions has traditionally been limited
to claims of constitutional violations occurring in the course of
the underlying state criminal proceedings.  Our federal habeas
cases have treated claims of -actual innocence,- not as an
independent constitutional claim, but as a basis upon which a
habeas petitioner may have an independent constitutional claim
considered on the merits, even though his habeas petition would
otherwise be regarded as successive or abusive.  History shows
that the traditional remedy for claims of innocence based on new
evidence, discovered too late in the day to file a new trial
motion, has been executive clemency.

 We may 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.  But because of the very disruptive effect
that entertaining claims of actual innocence would have on the
need for finality in capital cases, and the enormous burden that
having to retry cases based on often stale evidence would place
on the States, the threshold showing for such an assumed right
would necessarily be extraordinarily high.  The showing made by
petitioner in this case falls far short of any such threshold.

 Petitioner's newly discovered evidence consists of
affidavits.  In the new trial context, motions based solely upon
affidavits are disfavored because the affiants' statements are
obtained without the benefit of cross- examination and an
opportunity to make credibility determinations.  See Orfield, 2
Vill. L. Rev., at 333.  Petitioner's affidavits are particularly
suspect in this regard because, with the exception of Raul
Herrera, Jr.'s, affidavit, they consist of hearsay.  Likewise, in
reviewing petitioner's new evidence, we are mindful that
defendants often abuse new trial motions "as a method of delaying
enforcement of just sentences." United States v. Johnson, 327 U.
S. 106, 112 (1946).  Although we are not presented with a new
trial motion per se, we believe the likelihood of abuse is as
great-or greater-here.

 The affidavits filed in this habeas proceeding were given
over eight years after petitioner's trial.  No satisfactory
explanation has been given as to why the affiants waited until
the 11th hour-and, indeed, until after the alleged perpetrator of
the murders himself was dead-to make their statements.  Cf.
Taylor v. Illinois, 484 U. S. 400, 414 (1988) ("[I]t is . . .
reasonable to presume that there is something suspect about a
defense witness who is not identified until after the 11th hour
has passed").  Equally troubling, no explanation has been offered
as to why petitioner, by hypothesis an innocent man, pleaded
guilty to the murder of Rucker.

 Moreover, the affidavits themselves contain
inconsistencies, and therefore fail to provide a convincing
account of what took place on the night Officers Rucker and
Carrisalez were killed.  For instance, the affidavit of Raul Jr.,
who was nine years old at the time, indicates that there were
three people in the speeding car from which the murderer emerged,
whereas Hector Villarreal attested that Raul Sr. told him that
there were two people in the car that night.  Of course,
Hernandez testified at petitioner's trial that the murderer was
the only occupant of the car.  The affidavits also conflict as to
the direction in which the vehicle was heading when the murders
took place, and petitioner's whereabouts on the night of the
killings.

 Finally, the affidavits must be considered in light of
the proof of petitioner's guilt at trial-proof which included two
eyewitness identifications, numerous pieces of circumstantial
evidence, and a handwritten letter in which petitioner apologized
for killing the officers and offered to turn himself in under
certain conditions.  See supra, at 2-3, and n. 1.  That proof,
even when considered along- side petitioner's belated affidavits,
points strongly to petitioner's guilt.

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