Lapsed Deadlines Factor Into Cries of Innocence

WASHINGTON (CN) - Courts must consider the circumstances under which habeas inmates missed deadlines to challenge their convictions based on new evidence, the Supreme Court ruled Tuesday.

Equitable tolling eases the statute of limitations for plaintiffs who, despite reasonable care and diligent efforts, did not or could not discover the injury within the legal deadline to take action.

Here, Floyd Perkins waited until 2008 to challenge his 1997 conviction in Michigan for first-degree murder. He based his habeas petition on new evidence that allegedly proved his innocence, including three affidavits that purportedly corroborated his defense.

The Antiterrorism and Effective Death Penalty Act established a one-year deadline, but Perkins filed his petition six years after obtaining the last affidavit - almost five years past due.

Last year, however, the 6th Circuit ruled that Perkins' credible claim of innocence gave him leeway in filing such a late petition. It held that Perkins' "gateway actual innocence claim" allowed him to present his habeas petition "as if he had not filed it late."

The court also ruled that Perkins need not prove that he exercised diligence or was prevented from filing earlier due to an "extraordinary circumstance" to invoke equitable tolling.

Warden Greg McQuiggin argued that this decision placed the 6th Circuit at odds with several sister circuits as well as its own ruling in Souter v. Jones. He said the high court should take up the case to resolve this "deep and mature circuit conflict."

The 6th Circuit said, however, that the Supreme Court "has never required reasonable diligence to be shown when seeking equitable tolling due to actual innocence."

Clarifying its stance Tuesday, a six-person majority of the high court advised federal habeas courts faced with an actual-innocence gateway claim to count a petitioner's unjustifiable delay, "not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown."

Vacating the 6th Circuit's opinion, the majority led by Justice Ruth Bader Ginsburg said that untimeliness bears "on the credibility of evidence proffered to show actual inno­cence."

In the 1995 decision Schlup v. Delo, the Supreme Court created a demanding standard for claims of actual innocence.

"On remand, the District Court's appraisal of Perkins' petition as insufficient to meet Schlup's actual­ innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation," Ginsburg wrote.

"The gateway should open only when a petition presents 'evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error,'" she added.

Justices Stephen Breyer, Elena Kagan, Anthony Kennedy and Sonia Sotomayor joined the lead opinion.

In a stinging dissent, four other justices questioned where the majority found "power to fash­ion what it concedes is an 'exception' to this clear statu­tory command" of the one-year deadline for habeas applications.

"That question is unanswered because there is no an­swer," Justice Antonin Scalia wrote. "This court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitu­tion vests legislative power only in Congress, which never enacted the exception the court creates today. That in­convenient truth resolves this case."

Chief Justice John Roberts and Justice Clarence Thomas joined the dissent in full, but Justice Samuel Alito withdrew from the previously quoted introduction.

The remainder of the 12-page dissent, which Alito did join, goes on to explain that "actual innocence" had previously been used as "an exception only to judge-made, prudential barriers to habeas relief, or as a means of channeling judges' statutorily conferred discretion not to apply a procedural bar."

"Never before have we applied the exception to circumvent a categorical statutory bar to relief," Scalia added. "We have not done so because we have no power to do so. Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect." (Emphasis in original.)

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