Using Actual Innocence to Avoid a Procedural Bar to Habeas Corpus Relief
Actual innocence is an exception to any procedural bar preventing a federal court from granting habeas corpus relief, without the need to show cause and prejudice. Typically, a habeas claim is “procedurally-defaulted” when it`s raised for the first time on habeas review, rather than direct appeal. But showing actual innocence can avoid all of that.
The idea behind procedural-default is that the court should have the opportunity to deal with a claim before it gets to the habeas corpus stage. Habeas is more akin to a “last resort” for claims that would cause a “miscarriage of justice” if left in place, and which could not have been resolved on appeal. Dretke v. Haley, 541 U.S. 386 (2004).
The unique thing about actual innocence is that, even if the claim could have been raised on appeal, the habeas court can still grant relief. But the burden is rather heavy. A petitioner claiming actual innocence of his offenses on habeas review must show that, “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614 (1998). While it`s not as tough a burden as, say, “beyond a reasonable doubt,” the “more likely than not” standard is still more than just a 50/50 chance a jury would`ve acquitted.
A rather straight-forward case of actual innocence excusing a procedural bar occurred in United States v. Hisey, 12 F.4th 1231 (10th Cir. 2021). The court there held that a federal prisoner filing for habeas relief under 28 U.S.C. sec 2255 proved his actual innocence and therefore his claim attacking his guilty plea was not procedurally-defaulted.
The defendant in that case had been convicted, after a guilty plea, to being a felon-in-possession of a firearm under 18 U.S.C. sec 922(g). He didn`t appeal but instead filed a pro se sec 2255 motion to vacate his conviction, arguing that his prior state conviction (the felony upon which the sec 922(g) conviction was based) was not in fact a felony.
The court found he was right. Under Kansas State law, his drug sentence was deferred because he qualified for drug treatment, instead of prison time. He successfully completed the treatment and any threat of prison disappeared. When the federal government said this was still a felony for the federal felon-in-possession offense, the Tenth Circuit disagreed. An underlying felony for sec 922(g) depends on state law, not federal law, and a mandatory sentence of drug treatment without a sentence of more than a year wasn`t a “felony” under Kansas law, the court said.
Having a prior conviction that wasn`t punishable by more than a year in prison for this particular defendant, the court said, rendered the sec 922(g) conviction invalid. This meant the defendant was “actually innocent” of his federal offense. The district court should not have procedurally-barred the claim, and the case was remanded for the district court to address the motion on the merits.
As you can see, showing actual innocence of the offense excused procedural-default in this case but it didn`t resolve the case. This is important to note because actual innocence, as unbelievable as this sounds, is not a valid claim for federal habeas corpus relief. Instead, it`s the underlying constitutional violation that is the claim.
With that said, meeting the actual-innocence standard to avoid a procedural-bar is a huge step toward a successful claim for habeas relief, as this case shows.
DALE CHAPPELL is the author of several articles and books on post-conviction relief, including Habeas Corpus for Federal Prisoners: An Insider`s Guide and Federal Habeas for State Prisoners: An Insider`s Guide.