Two Gateways to Habeas

May 30, 2013
Guest Post

by Brandon L. Garrett and Lee Kovarsky. Garrett is a professor of law at the University of Virginia School of Law and Kovarsky is an assistant professor of law at the University of Maryland School of Law. They are co-authors of a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, which was just published by Foundation Press.

This week, the Supreme Court handed down habeas decisions on two different gateways through procedural obstacles to federal habeas review. The first decision involved an “innocence” gateway. In McQuiggan v. Perkins, the Court held that, despite a constitutional claim’s untimeliness, a federal court could reach the claim’s merit if there exists a reasonable chance that the inmate was wrongfully convicted. The second gateway is a “bad lawyering” gateway. In Trevino v. Thaler, the Court held that inadequate state post-conviction representation can excuse the default of a trial-phase ineffective-assistance-of-counsel (IAC) claim if, as a practical matter, a state post-conviction proceeding was the only forum for a state inmate to raise it. In each case, the Court avoided mechanical readings of statutes or precedents in favor of interpretations that reflect the byzantine reality of modern habeas corpus review.

In the “innocence gateway” case, Floyd Perkins was serving a life sentence in Michigan. Perkins argued that he had new evidence proving his innocence: witnesses would say that another man was the killer, that the other man had bragged he had done it, and that the other man was trying to wash blood-stained clothes the day after the killing. Perkins had been convicted largely based on testimony of the other man, as well as two others who said they overheard Perkins admit his guilt. Perkins argued that his new evidence of innocence entitled him to merits review of his IAC claim, which was untimely under the one-year federal limitations period. He could not, however, show that he had acted with “due diligence” in bringing this evidence to the attention of the judge. He argued that new evidence of innocence should excuse the untimely filing, notwithstanding the technical defects in the petition.

Perkins is another entry in the maddening jurisprudence of “actual innocence.” Many people find it surprising that innocence might be irrelevant to inmates litigating habeas petitions. The Supreme Court has yet to recognize a constitutional right to habeas relief based on a showing of freestanding innocence -- unaccompanied by some other constitutional violation. For two decades now, the Court has been willing to assume only hypothetically that the continued imprisonment or execution of an innocent person might violate the constitution. One might describe the Court’s freestanding innocence approach as a fingers-crossed jurisprudence in which many Justices seem content simply to hope that other institutions will work well enough to prevent the Court from every having to answer the question definitively.

The Court, however, has not turned an entirely blind eye to the problem of wrongful convictions. A showing that an inmate is “actually” (as opposed to “legally”) innocent of a crime is often necessary to relief, even if it is never sufficient. The Court has recognized that a strong showing of innocence can excuse procedural barriers that might otherwise require dismissal of the habeas petition. Innocence serves as a “gateway” to relief on some other constitutional claim. Innocence therefore plays an indirect-but-important role in federal habeas litigation because so many meritorious claims get dismissed as procedurally defective. The volume of procedurally defective claims has skyrocketed since Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which imposed a strict one-year statute of limitations, with very limited exceptions. The limitations statute contains no statutory exception to the one-year rule for an inmate who tardily uncovered new evidence of innocence. The text of innocence-related exception required diligence that Perkins could not show.

In Perkins, the Court held that the limitations period was subject to the same “miscarriage of justice” gateway that excuses other types of procedural defects. That gateway allows evidence of innocence to excuse an otherwise untimely petition. Justice Ginsburg, who wrote for the Court, emphasized that this innocence gateway is “severely confined.” She explained that few inmates will be able to meet the applicable standard: that, more likely than not, a new jury would acquit. The Court chose to ground its holding in principles of statutory construction, where Justice Scalia had a strong dissenting response. Justice Scalia called the decision “a flagrant breach of the separation of powers,” as Congress had enacted “a categorical statutory bar to relief.”

In Trevino, the “bad-lawyering” gateway case, the Court recognized that a Texas death row inmate could raise a trial-phase IAC claim, despite the fact that it was “procedurally defaulted.” The IAC claim was defaulted because Trevino failed to raise it on direct appeal of his conviction and sentence. Last year, in Martinez v. Ryan, the Court had held that inadequate state post-conviction representation could excuse the procedural default of a trial-phase IAC claim if a state barred an inmate from lodging that challenge on direct review of the conviction. The logic in Martinez was unusually intuitive for a habeas case: without a bad-lawyering excuse, a bad state post-conviction lawyer would make it impossible to enforce the bedrock Sixth Amendment right to an effective trial lawyer. In Trevino, Texas argued that Martinez was inapplicable because Texas inmates could theoretically raise IAC claims in post-judgment motions and on appeal thereof. The Court in Trevino made clear that Martinez was a rule about function, not form—inadequate state post-conviction representation excuses default of an IAC claim if, as a practical matter, an inmate cannot litigate the claim on direct review of the conviction. Writing for the Court, Justice Breyer emphasized that, as a “systematic matter,” Texas did not afford “meaningful review of a claim of ineffective assistance of trial counsel” during appeals. The decision, like Martinez before it, gives states an incentive to offer more meaningful opportunities for inmates to assert important constitutional claims. Justice Scalia again dissented, briefly, to reiterate his opposition to any exception based on bad state post-conviction lawyering. Chief Justice Roberts, joined by Justice Alito, dissented to emphasize that the Martinez exception should have remained limited to jurisdictions in which an inmate was categorically barred, as a matter of law, from raising IAC claims on direct review of the conviction.

In his Perkins dissent, Justice Scalia complained: “Today’s decision piles yet more dead weight onto a post-conviction habeas system already creaking at its rusted joints.” Justice Scalia is half right. The post-conviction regime certainly creaks, but not because courts spend too much time deciding claims on their merits. It creaks because, in their zeal to create so many procedural obstacles to relief, Congress and the Court have committed enormous federal judicial resources to the task of adjudicating the procedural obstacles themselves.

The great embarrassment of modern habeas law is that there is so much of it, and that the justice system nonetheless remains unable to guarantee basic legal representation and to sort the guilty from the innocent. Everyone -- states, inmates, and federal courts -- would be better off if Congress simply eliminated many of the procedural obstacles that have been erected in the last forty years. Preserving robust gateways to ensure merits review in spite of technical defects is a good second-best solution. In both Perkins and Trevino, the Supreme Court recognized common-sense exceptions to procedural bars: society does not want to keep innocent people locked up, and the right to a lawyer does not mean much if an inmate has no forum to meaningfully enforce it.