When Procedure Must Matter Over Substance
As anyone who has read me the last 4 years on civil liberties issues can attest, I have a passion for the protection of the rights of the accused. In that vein, no one has done more to advance those protections in recent memory than Radley Balko.
Unfortunately, I think he’s barking up the wrong tree on this one. He writes:
A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit has rejected an Oregon man’s petition for habeas corpus relief (PDF). This despite acknowledging that the man has established actual innocence for the crimes for which he’s being imprisoned (sexual abuse and sodomy of a four-year-old). The reason: He was late filing his petition. By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.
New York criminal defense attorney Scott Greenfield comments:
“…in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn’t manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth. They don’t care. They just don’t care.”
Unfortunately, this both misstates the facts involved in this case and, in so doing, misses why adherence to the statute of limitations for habeas petitions is particularly necessary.
First, the factual misstatement – despite the suggestion above, this was not a case where the “information or evidence doesn’t manage to come into [the defendant’s] hands until more than a year after” the final denial of his appeal by the state courts. To the contrary, the basis for this defendant’s habeas petition was “ineffective assistance of counsel regarding the initial exclusion of evidence concerning another suspect, the appeal of the same issue, the failure to call an expert witness on the reliability of child testimony, and the calling of witnesses harmful to the defense.” (My emphasis).
In other words, the evidentiary basis for the defendant’s petition was entirely evidence of which the defendant was aware (or should have been aware) from the beginning. Indeed, the statute at issue (28 U.S.C. 2244(d)(1[/efn_note] contains an exception for after-acquired evidence, but the defendant himself apparently conceded that he had not acquired new evidence and the court’s decision does not affect that exception.
Nor, pace Balko, did the 9th Circuit make a finding that the Defendant was, in fact, innocent. Instead, it was presented with facts in which the district court ultimately found it “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” As the concurrence points out, there were strong reasons to question the district court’s conclusion even on this front, and the Defendant had already failed to convince three state courts that he received ineffective assistance of counsel preventing him from introducing exculpatory evidence.
These factual issues are critical to understanding why the 9th Circuit’s ruling was correct, regardless of whether the Defendant is actually guilty. Although it’s true that the one-year statute of limitations for filing a federal habeas petition is more or less arbitrary, in the absence of extenuating circumstances such as after-acquired evidence, there is a real need for a deadline of some sort for the filing of such petitions – otherwise, a prisoner could simply use habeas petitions as a way of gaming the system, using them to tie up the courts and prison administration even more than is already done or using them to earn a new trial after key witnesses against them have died or evidence against them is no longer available for some other reason.
Allowing an “actual innocence” exception to the statute of limitations would, in effect, render the statute of limitations meaningless. All that would be necessary to file a habeas petition would be an allegation that certain evidence presented at trial (or that could have been presented at trial) is exculpatory. Once such an allegation is made, the prisoner would be able to proceed with “the submission of exhibits, oral argument, evidentiary hearings, and [to obtain] numerous rulings,” essentially obtaining a mini re-trial in federal court of his state conviction. As the 9th Circuit pointed out, that is precisely what happened here. This is perfectly acceptable where a prisoner is able to make a credible allegation that he did not possess the exculpatory evidence until after his conviction was final (and could not have obtained it earlier even with due diligence), and the exception for after-acquired evidence exists for that reason.
But it is not acceptable where the allegedly exculpatory evidence was available to the defendant all along but he chose not to seek a court’s review until after the expiration of the statute of limitations. In such circumstances, there needs to be a strong excuse for the delay, and simply claiming actual innocence, without more, doesn’t provide such an excuse. To the contrary, one would expect that a prisoner with a credible claim of actual innocence would make sure to file a federal habeas petition particularly quickly.
The courts cannot and should not be expected to expend tremendous resources to conduct a mini-trial every time a convicted prisoner claims that they are actually innocent after having had the opportunity for an appeal and a substantial amount of time thereafter to file a habeas petition separately challenging the conviction.
Finally, it must be noted that the issue for the 9th Circuit in this case was not whether an innocent person should be permitted to rot in jail if he fails to abide by a statute of limitations. Instead, the question was to determine the circumstances under which a prisoner may present evidence of actual innocence in a habeas petition. It is not unreasonable to provide a prisoner with a full year to do so and an infinite amount of time to do so if that evidence was after-acquired.
While the district court judge in this case ultimately determined that the evidence put forth by the prisoner was likely sufficient to make his conviction unreasonable, the question for the 9th Circuit was whether the district court should have heard that evidence in the first place. As discussed above, there is a very real need for limitations on when a prisoner should be entitled to a full habeas hearing. Unfortunately, because of the way appeals work, the main circumstance in which the 9th Circuit was going to be able to establish those limitations was where the district court ultimately granted the habeas petition by determining that a prisoner had established something approaching “actual innocence.” An appeal by a prisoner will obviously not call into question whether the habeas hearing should have been granted, but rather whether the judge was correct in refusing to grant the writ.
If this particular prisoner is, in fact, innocent (and I grant that he may well be), then his gripe is not with the 9th Circuit but rather with the prosecution and the State of Oregon that has failed to pardon him and/or has pursued and protected the conviction in spite of his innocence. His failure to comply with reasonable – and essential – procedural requirements, however, is his own responsibility.