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Innocence and the Habeas Statute of Limitations

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On Monday, the Supreme Court hears arguments in McQuiggin v. Perkins, No. 12-126, on the question of whether a claim of actual innocence allows an exception to the federal habeas statute of limitations.

At SCOTUSblog, Jordan Steiker has an argument preview on the case.  Steiker is a hard-core anti-death-penalty true believer, so you have to take everything he says with a grain of salt.  (Perkins is not a capital case, but capital punishment always looms in the background of habeas cases.)
For instance, he says, "The most common obstacles in the habeas regime that emerged in the 1960s and 70s included the failure to exhaust claims in state court, the failure to comply with state procedural rules, and the failure to present and develop all claims in an initial application."  Actually, the exhaustion rule emerged in Ex parte Royall, 117 U.S. 241 (1886), but what's eight or nine decades between friends?  On the other two issues, I think it would be more accurate to say that the procedural default and successive petition rules reemerged in the Burger and Rehnquist Courts after the Warren Court rode roughshod over precedent and eviscerated them.

Nonetheless, on the main point, Steiker correctly notes that the Supreme Court repeatedly noted actual innocence as an exception as it was tightening up generally on habeas corpus.  Then in 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, tightening up further.

For successive petitions -- a federal habeas petition filed after the petitioner has already had one such petition -- Congress expressly preserved an "actual innocence" exception, although it tightened the criteria.  See 28 U.S.C. §2244(b)(2).  The statute requires both actual innocence and a showing that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence."  For the statute of limitations, the latter showing alone is enough to restart the clock.  See §2244(d)(1)(D).

In Steiker's summary of the case, Perkins exhausted his state remedies of appeal and state collateral review.  "Perkins, still acting pro se and relying on his sister's help, subsequently located a clerk from the dry cleaners who signed an affidavit indicating that a customer matching Jones's description had come to her store seeking help in removing blood stains from his clothes just after the crime."

But after obtaining this affidavit, he waited six years to file his federal habeas petition.  If the date of the affidavit restarts the clock under §2244(d)(1)(D), then Congress has provided for this situation and given another year to file.  Not six years.

Perhaps the statute of limitations should have an exception for actual innocence alone, without regard for any procedural limitations.  (I have never been a fan of §2244(b)(2)'s conjunctive diligence requirement, but my view didn't prevail as AEDPA was going through Congress, on this and several other issues.)  It's pretty hard to see how a court could honestly read one in.  A comparison of the two subdivisions of this section indicates the omission was intentional.  Equitable tolling relates to issues preventing the prisoner from filing, not to the underlying merits of the petition.

Another problem with this case is that Perkins' innocence claim is weak.  The Supreme Court might dispose of the case by saying, as it did in Herrera v. Collins, 506 U.S. 390 (1992), that it need not decide whether a compelling claim of innocence would justify relief in this situation, because this guy does not have one or even come close.  (That was, in essence, one of the alternative grounds for the district court's rejection of the claim.)

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