The Eleventh Circuit, which had previously stayed the execution of Troy Davis in Georgia, today denied relief in this 2-1 opinion. On the question of whether Davis is actually innocent, the majority opinion says:
Davis has not presented us with a showing of innocence so compelling that we would be obliged to act today. Rather, the record, including all of the post-trial affidavits, is, at best, tortured and difficult. Indeed, the Georgia trial court and Georgia's Supreme Court have twice parsed through all of this evidence and determined that it was insufficient to establish Davis's innocence. In addition, the Georgia State Board of Pardons and Paroles held a hearing,questioning every witness Davis's attorneys presented to support their allegation that there was doubt as to Davis's guilt; studied the voluminous trial transcript, the police investigation report and the initial statements of all the witnesses; had certain physical evidence retested and Davis interviewed; and ultimately concluded that clemency was not warranted.
Our review of the record is wholly consonant with the repeated conclusions of the state courts and the Board of Pardons and Paroles.
Doesn't Davis' claim run into some other issues?
First of all, Davis' innocence claim was presented to the state courts and rejected. Accordingly, wouldn't the Georgia courts' treatment of that issue be required to be overcome by clear and convincing evidence. See 28 USC 2254(e)(1)?
Second of all, it would seem that 28 USC 2254(d) would be a problem as well. What "clearly established" federal law allows Herrera claims, and even if it did, wouldn't the Georgia courts' conclusion on innocence have to be respected anyway? Certainly, de novo review wouldn't be appropriate.
Obviously, this is a pre-look at the merits, which may be beyond the jurisdiction of the appeals panel under existing Supreme Court caselaw, but it would seem silly to allow the second habeas petition to go forward where there's no possibility for relief on the merits.
The opinion is a worthwhile read for those in the media who might think Davis is getting railroaded. The majority reject the designation that the affidavits are "recantations", and go on to find that Davis "has not even come close" to establishing a claim of innocence.