Federal Habeas Corpus: How to Raise an Actual Innocence Claim

Believe it or not, someone proving they`re “actually innocent” of their criminal offense is not enough to win federal habeas corpus relief. That`s because actual innocence, by itself, is not a constitutional violation to allow for federal habeas relief. Instead, it`s only the first step toward relief, and there must also be an underlying constitutional claim. Here`s how to raise a successful actual-innocence habeas claim.

What is Actual Innocence?

Typically, actual innocence arises after the discovery of new evidence that would create a “sufficient probability” that there`s reasonable doubt as to a habeas petitioner`s guilt. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has also made clear that actual innocence means “factual innocence,” as opposed to mere legal innocence. Bousley v. United States, 523 U.S. 614 (1998).

The different between factual and legal innocence is sometimes not very clear, but two cases provide some guidance. In Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), the court granted habeas relief where an offense that was purely intra-state, and thus not a federal offense, was a valid factual innocence claim. And in Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the court held that a self-defense argument claim was more of a “legal innocence” claim than factual innocence. What petitioners need to know is that courts rarely grant habeas relief for legal innocence claims.

What counts as “new evidence” is also not entirely settled. “Admittedly, courts have struggled to define what qualifies as new evidence. Some courts treat all evidence as new so long as it was not presented at trial. Other courts maintain that evidence is new only if it was unavailable at the time of trial.” Lowery v. Parris, 819 Fed. Appx. 420 (6th Cir. 2020) (collecting cases for each type of evidence).

But the new evidence isn`t evaluated in a vacuum. The Supreme Court says that “all the evidence” in a case must be considered, both old and new, when weighing an actual innocence claim. House v. Bell, 547 U.S. 518 (2006). And the habeas court isn`t “barred by the rules of admissibility that would govern at trial,” the Court has said. Schlup. However, once the actual innocence claim opens the habeas door for the underlying constitutional claim, any evidence subsequently considered by the court must be admissible under the rules of evidence. Bousley.

The Standard for Proving Actual Innocence

There are two different standards for showing actual innocence in federal habeas corpus. The standard for a first-in-time motion, or one that`s not considered “second or successive” (SOS), is whether “it is more likely than not that no reasonable juror would have convicted” the petitioner. Bousley. This was called the “probable innocence” standard in Schlup.

The actual innocence standard for SOS petitions, however, is much steeper. For a state petitioner, the law requires:

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the [habeas] applicant guilty of the underlying offense.

28 U.S.C. sec 2244(b)(2)(B)

For a federal petitioner, the bar is just as high:

Newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilt of the offense[.]

28 U.S.C. sec 2255(h)(1)

The bar for SOS petitioners is high because a showing by “clear and convincing evidence” is more onerous than the more-likely-than-not standard for a first petition. Clear and convincing evidence is like a two-thirds majority in Congress, whereas more-likely-than-not is like a simple majority or just over 50%. And the Supreme Court noted in Schlup that Congress` use of the word “would,” instead of “could,” in determining that “no reasonable factfinder would have found the applicant guilty,” points to the “likely behavior” of the factfinder (juror or judge), where the word “could” points to the “power” of the factfinder to find someone is innocent. This was an important distinction, the Court said.

It`s also not just the offense of conviction that matter for actual innocence, but also any charges that were dropped as part of the plea deal. “In cases where the government has forgone more serious charges in the course of the plea bargaining, petitioner`s showing of actual innocence must also extend to those charges,” the Court said in Bousley. Congress has since codified this requirement in 18 U.S.C. sec 3296.

What Constitutes an Actual Innocence Habeas Claim?

As I eluded to in the beginning, actual innocence is not a valid habeas claim — at least, not by itself. There must be some underlying constitutional violation related to the actual innocence claim that would allow for federal habeas relief. As the Court said in Schlup: “Schlup`s claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims.”

But that was dicta and the Supreme Court has skated around the question of whether a “freestanding” actual-innocence claim could ever form the basis for habeas relief. One case, again in language that was not the holding of the Court, provided a clear suggestion that it would not. In Herrera v. Collins, 506 U.S. 390 (1993), the Court agreed that a petitioner`s actual innocence claim was enough to avoid a procedural bar to habeas relief for his underlying constitutional claim, but rejected any notion that it could be a valid claim itself.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. [That is because] this rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact.

The Court further reasoned that a federal habeas court deciding a factual issue, such as an actual innocence claim, and undoing a state-court decision “would be more disruptive to our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” The Court`s reasoning has not gone without much criticism by scholars and advocates of those wrongfully imprisoned, however.

Instead of habeas relief, the Court said that the “traditional remedy” for actual innocence claims has been “executive clemency.”

Actual Innocence is a Gateway Through a Procedural Bar

The way an actual innocence claim works in federal habeas corpus is that it “serves as a gateway through which a petitioner may pass” to have his otherwise-barred constitutional claims heard. McQuiggin v. Perkins, 569 U.S. 383 (2013). The Court cited several habeas procedural bars that it has excused because of actual innocence, including procedural-default for failing to raise a claim earlier, the bar on SOS petitions, the bar on federal evidentiary hearings, and state procedural bars.

The Court established the standard required to avoid a procedural bar with an actual innocence claim: “A petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” The Court also added that an “unjustified delay” is a factor the habeas court must consider with an actual innocence claim, but didn`t define what that meant.

Where to File an Actual innocence Claim

As with most habeas claims, the starting point is almost always in the federal district court. See secs 2255(a), 2254(a). However, an actual innocence claim in a SOS petition must be authorized by the court of appeals, and must meet the harsher “clear and convincing” standard. secs 2244(b)(2)(B), 2255(h)(1). But don`t forget about the Supreme Court. Both state and federal petitioners may file an original petition for habeas relief in the Supreme Court. For example, in In re Davis, 557 U.S. 952 (2009), the Court agreed that the petitioner`s claim of actual innocence was compelling enough that it “transferred” the habeas petition to the district court for a hearing on the actual innocence claim based on newly discovered evidence. While the opinion was just one short paragraph, the Court reaffirmed what it said in Schlup:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of the criminal justice system.

IN CONCLUSION, the bar for actual innocence habeas claims is rather high. The key is to understand that an actual innocence claim is the trailblazer for the underlying constitutional claim. Put the proper emphasis on each claim and you`ll succeed with an actual innocence habeas claim in federal court.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

Supreme Court Unties Hands of Federal Sentencing Judges

The Supreme Court untied the hands of federal sentencing judges today by holding that, unless the statutory provision allowing for a sentence reduction expressly prevents the judge from considering certain facts in crafting the new sentence, the judge may use his broad discretion to impose whatever sentence he sees fit in that case. See Concepcion v. United States, No. 20-1650 (S. Ct. June 28, 2022).

Though it was a case dealing with a sentence reduction under the First Step Act`s changes to the crack cocaine sentencing scheme, which opened qualifying drug offenses for resentencing under the revised crack cocaine laws enacted in 2010, the Court`s opinion firmly establishes that federal sentencing judges may consider all sorts of facts and evidence when deciding to reduce a sentence, even years later.

The case came out of the Dist. of Massachusetts, where Carlos Concepcion was sentenced in 2009 for a crack and powder cocaine offense. He was subject to 5 to 40 years in prison, but because of a prior drug offense in state court, that doubled to 10 years to life, under 21 U.S.C. sec 851. He was also deemed a “career offender” because of some prior violent convictions in state court that increased his U.S. Sentencing Guidelines to just under 30 years in prison. But Concepcion got some leniency and Dist. Judge William G. Young handed him 228 months, citing his troubled youth.

When the First Step Act of 2018 took effect, lowering his sentence exposure for the crack offense, he filed for relief and was denied. The district court held that it lacked the discretion under the Act to consider any changes in the law or his good behavior since his sentencing in 2009. A split First Circuit upheld the denial, over a vigorous dissent by Judge David J. Barron, and the Supreme Court agreed to hear the case.

Justice Sotomayor began by noting that “a judge at sentencing considers the whole person before him or her as an individual,” and that the judge “considers the defendant on that day, not on the date of his offense or the date of his conviction.”

The Court held that when a statute does not expressly prevent a sentencing judge from considering certain factors, it has the “wide discretion” to consider all kinds of factors:

It is only when Congress of the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court`s discretion to consider information is restrained. Nothing in the Frist Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the Fist Step Act requires district courts to consider intervening changes when parties raise them.

There were four dissenting Justices (led by Justice Brett Kavanaugh and joined by Justices Robertson, Alito, and Barrett) who would have upheld the lower court`s lack of discretion in modifying a sentence. They pointed out that the First Step Act “reflects a compromise among competing interests” in Congress and that it was a “heavily negotiated” piece of legislation. “The Court`s decision today unravels the legislative compromise reflected in the statutory text,” the dissent said.

But this ignores one critical point: The legislative history of a statute is only considered when the text of the statute is ambiguous and further meaning must be derived from what the lawmakers intended. Nobody claimed that the text of the statute in this case was ambiguous. Instead, the dissenters looked to the legislative history to undermine the idea that federal sentencing judges should have any discretion at sentencing. I think this is misleading, at best.


Sentencing Data Show Major Increase in Federal Drug, Gun, and Sex Offense Cases in 2021

The data is out for 2021 and for the first time there were more federal drug convictions than immigration offenses. There were also many more sex offense cases than ever before, and (unsurprisingly) a bigger crackdown on gun crimes. Here`s how the numbers break down from the recent report from the U.S. Sentencing Commission (USSC).

Total number of cases:

Overall, there were 57,377 federal criminal convictions in 2021. This was the lowest number of convictions since 1999, and 33.5% below the peak number of federal convictions reached in 2014.

The most common offenses:

The most common offenses were drug trafficking, firearms, and fraud/theft/embezzlement. Combined with immigration, these offenses made up 83.1% of all federal criminal cases.

A closer look at federal drug convictions:

Drug offenses surpassed immigration offenses for the first time in 2021, making up 31.3% of the total number of convictions in the federal courts.

While drug possession cases continued to decline for the last 5 years, drug trafficking convictions rose 7.4% since 2020.

Over two-thirds (67.7%) of drug trafficking cases required the court to impose a mandatory minimum sentence.

Methamphetamine continued to be the most common drug type involved in these cases, but fentanyl cases jumped 45.2% from 2020 and were the fourth most common drug type.

Source: U.S. Sentencing Commission`s website (click here)

Federal Drug Conspiracy Involving Both Crack and Other Drugs Still Eligible for First Step Act Relief

A single federal drug offense involving both powder and crack cocaine is eligible for a reduced sentence under the First Step Act`s retroactive application of the Fair Sentencing Act of 2010 (FSA), even if the offense included a non-qualifying drug, the U.S. Court of Appeals for the Second Circuit held on August 4, 2021. The decision puts the circuit in line with every other circuit to have addressed the issue, and reverses its prior unpublished case to the contrary.

This appeal affected nine defendants but focused on Martell Jordan, who was convicted by a jury in 2008 of a dual-object conspiracy to distribute 5 kilograms or more of powder cocaine and 50 grams or more of cocaine base (“crack”), under 21 U.S.C. sec 841(b)(1)(A) and (b)(1)(B), among other drug and firearm offenses. Jordan faced a minimum of 240 months and up to 293 months under the advisory Guidelines, with the sentencing court sentencing him to 30 years in prison. That sentence was later reduced to 254 months under Amendment 782`s retroactive changes to the drug sentencing table.

In December 2018, Congress enacted the First Step Act which, among other things, applied the FSA retroactively to people with crack offenses sentenced prior to the FSA. The FSA increased the amount of crack needed to trigger higher statutory penalties, but it didn`t apply retroactively to those sentenced before it was enacted. After the First Step Act changed this, Jordan filed a motion for relief based on the FSA`s changes, but the district court concluded it lacked the authority to grant relief because Jordan`s single offense included both powder (a non-qualifying drug) and crack (a qualifying drug).

On appeal, the Second Circuit acknowledged several other circuits had since held that a single offense involving both powder and crack cocaine was eligible for a reduced sentence under the First Step Act. The government also conceded as much. In a 30-page opinion, the Court took a moment to explain why this was the correct reading of the First Step Act.

A Multi-Object Drug Conspiracy is a “Covered Offense”

Under section 404 of the First Step Act, a sentencing court may reduce a sentence for a “covered offense” as if the FSA “were in effect at the time the covered offense was committed.” A covered offense is defined as a “violation of a federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the [FSA].” As the Supreme Court recently concluded in Terry v. United States, 141 S. Ct. 1858 (2021), the FSA changed the statutory penalties for crack offenses under secs 841(b)(1)(A) and (b)(1)(B). Thus, any offense involving crack under those two subparagraphs would be a “covered offense.”

The Second Circuit said that Terry applied to Jordan`s case:

An application of Terry`s approach here supports the conclusion that Jordan`s multi-object conspiracy offense (involving 50 grams or more of crack cocaine) is a “covered offense” under Section 404 because the statutory penalty associated with the drug-quantity element of the crack cocaine object under 21 U.S.C. sec 846 was undoubtedly modified by Section 2 of the [FSA]. To explain, Jordan`s conviction on the conspiracy count, as it related to the crack-cocaine conspiracy object, included (as delineated in the superseding indictment) a violation of 21 U.S.C. secs 846, 841(a)(1), and 841(b)(1)(A) — the last of which provides the statutory penalties for his violation under 21 U.S.C. sec 846 — given the jury`s finding that the conspiracy involved at least 50 grams of crack cocaine.

In other words, the fact that Jordan`s offense also involved powder cocaine, whose statutory penalties were not modified by the FSA, did not preclude him from being eligible for First Step Act relief.

Relief was Available

Had Jordan been sentenced to the 20-year mandatory minimum for the offense, he would not have been eligible for First Step Act relief because there would have been no relief for the district court to give. But because his sentence was above the minimum — albeit by only 14 months — the district court still had the ability to reduce Jordan`s sentence. This fact also made Jordan`s multi-object conspiracy offense with both powder and crack “eligible” under the First Step Act.

The Court`s Earlier Decision on Multi-Object Conspiracies was Wrong

The Court conceded that its earlier decision in United States v. Lott, 830 Fed. Appx. 365 (2d Cir. 2020), was “incorrectly decided.” In that unpublished decision, the court had held in a case similar to Jordan`s that the addition of the powder cocaine took the single, dual-object conspiracy offense outside of First Step Act relief.

Lott was a pro se appeal, unlike Jordan`s counseled appeal, which garnered barely a four-page opinion from the court. There was no analysis, and one of the judges on the panel, Judge Gerald Lynch, was also on Jordan`s panel and conceded in his concurring opinion that Lott was wrongly decided: I am now persuaded that the majority`s more generous interpretation of the First Step Act [in this case] is ultimately the better reading of the statute, and I concur.

IN CONCLUSION, the Second Circuit held that a multi-object conspiracy offense based in part on crack cocaine, falling under secs 841(b)(1)(A) or (b)(1)(B), was a covered offense to render the offense eligible for relief under the FSA.

Accordingly, the Court vacated the denial of Jordan`s First Step Act motion and remanded with instructions for the district court to consider all of jordan`s crack offenses for relief under the First Step Act. See: United States v. Jordan, 2021 U.S. App. LEXIS 23026 (2d Cir. Aug. 4, 2021).

Wisconsin Court Delays Criminal Appeal to Stop Federal Lawsuit Over Police Misconduct

A Wisconsin court has delayed a defendant`s criminal appeal for over four years in a seeming attempt to prevent his federal lawsuit to move forward against the cops for use of excessive force during the search of his house, and for falsifying court documents relating to that search. The federal judge said his lawsuit had merit, but that it had to “halt” the case because it could interfere with his pending criminal appeal.

Police Misconduct

The case goes back to 2016, when Marvin Carter and his girlfriend and her small children were pulled out of bed by the cops — at gunpoint — while they executed a “no-knock” warrant. That means instead of knocking and allowing someone to open the door, the cops kicked it in and swarmed the house with tactical weapons. When Carter asked to see the warrant the cops said they had, one of them “read” it to Carter but refused to let him see it. No warrant was ever produced in subsequent proceedings.

The Federal Lawsuit

Carter was arrested on drug and firearm charges. He went to trial in 2017 but then pled guilty mid-trial. He also filed the lawsuit in federal court at around the same time, claiming the use of excessive force during the search, and the fabrication of court records for the alleged phony search warrant.

Judge Stadtmueller of the U.S. Dist. Court for the Eastern Dist. of Wisconsin reviewed the lawsuit and said it had merit. But the judge had to put it on hold because of a rule that any lawsuit that could undo a criminal conviction must be dismissed. Thus, the judge said the lawsuit would be “halted” until the resolution of Carter`s criminal appeal.

That rule was announced in Heck v. Humphrey, 512 U.S. 477 (1994), where the U.S. Supreme Court held that a lawsuit may not be pursued if its success would undermine or undo the validity of a criminal conviction or sentence. That`s called the “Heck Rule.”

It`s an unfair rule that allows cops (and other law enforcement personnel) to get away with violating a defendant`s constitutional rights, in many cases, because they know a conviction will block any federal lawsuit. Even a minor conviction is enough.

Why the Court Delayed the Appeal

And the Wisconsin cops got a conviction here, but the prosecutor messed up. At sentencing, the prosecutor urged the court to impose a higher sentence than what was in the plea agreement. This breached the plea agreement, which said the prosecutor would recommend a lower sentence. He didn`t do that, and the judge went 50% over the plea agreement`s sentence. The Supreme Court held more than 50 years ago that this kind of underhanded move by prosecutors isn`t allowed. Santobello v. New York, 404 U.S. 257 (1971).

So Carter appealed. That`s when the state court slammed on the brakes with his appeal. Remember that the federal court put Carter`s lawsuit on hold, pending the outcome of his state criminal appeal. If he would be successful in that appeal, his conviction would be undone and his lawsuit could proceed.

But the state court stopped all of this by delaying his appeal. The court granted a total of 15 extensions of times, and not once did it give a reason for why it did so. Every time a deadline came up, it got extended. 15 times!

The delay was enough for the U.S. Court of Appeals for the Seventh Circuit to finally say that it violated Carter`s constitutional rights, and allowed him to file his appeal claims in federal court under habeas corpus proceedings. The court said the state court “failed” Carter, but I don`t think that`s accurate. To fail someone requires at a minimum some that there was some sort of effort made toward a positive result. The state in Carter`s case didn`t just fail him. It actively blocked his attempts to hold law enforcement accountable through a federal civil rights lawsuit. That`s not failure but a miscarriage of justice.

Read the case at Carter v. Kuspa, 2017 U.S. Dist. LEXIS 140372 (E.D. Wis. Aug. 31, 2017).

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