Author: Dale Chappell, the Zen Law Guy

What’s it like inside a prison bus?

Ever wonder what it’s like inside a prison bus? While they all look a little different, the common theme is dirty, overcrowded, and uncomfortable. Here’s a look inside a prison bus operated by a private, for-profit prison company.

A look inside a prison bus

Inmates transported in these buses are shackled, with their hands cuffed to a chain around their waist and their feet chained together. Sometimes a black box is put around the handcuffs to prevent a prisoner from moving their hands at all. It’s called being “black boxed” and it’s painful. You can’t eat, drink, or use the toilet properly — yet they will give you food and water and offer a toilet on the bus.

So, this video is not a true representation of what it’s like in a prison bus because we were just using it as a way to evacuate Tampa due to Hurricane Ian Sept 27, 2022.

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.

Federal Habeas Corpus: How to Raise a Brady Claim

Whenever a prosecutor withholds favorable evidence from the defense, it cuts to the central core of fairness in the criminal justice system. But someone raising these constitutional claims in a federal habeas petition faces some big hurdles that can bar even the best claims. Here`s how to go about having some success with these claims.

What is a Brady Claim?

The U.S. Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that a prosecutor must disclose favorable evidence to a defendant:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Handing over “Brady material” to the defense is a well-known term in the state and federal legal systems. When the prosecution fails to fulfill this obligation, a defendant has what`s called a Brady claim. The Court established the “essential components” of such a claim in Strickler v. Greene, 527 U.S. 263 (1999):

  • The evidence must be favorable because it`s either exculpatory or impeaching,
  • The evidence must have been suppressed by the prosecutor either willfully or inadvertently, and
  • The suppression prejudiced the defendant, in that there`s a “reasonable probability” of a different outcome with the evidence.

The prosecutor not only has the duty to hand over favorable evidence but also “to learn of any favorable evidence known to others acting on the government`s behalf,” including evidence possessed by law enforcement. This duty exists even if the defense fails to request any evidence, or the evidence is readily available in the public domain (such as court documents). Dennis v. Sec`y Penn. DOC, 834 F.3d 263 (3d Cir. 2016) (en banc).

Brady isn`t limited to just physical evidence of a crime, however. In fact, the case was about the prosecutor suppressing a codefendant`s confession to the crime that would`ve been critical to the defense. The Court has recognized several “Brady-type” violations over the decades, beginning even before the Brady case:

  • Jencks v. United States, 353 U.S. 657 (1957) (entitled to production of statements by government witnesses)
  • Napue v. Illinois, 360 U.S. 264 (1959) (false evidence known by prosecutor violates due process)
  • Giglio v. United States, 405 U.S. 150 (1972) (entitled to evidence of perjury by government witnesses)
  • Kyles v. Whitley, 514 U.S. 419 (1995) (prosecution obligated to learn about favorable evidence)
  • Wearry v. Cain, 577 U.S. 385 (2016) (plea offer for government witness is Brady material)

The Standard for Proving a Brady Claim

The key to a Brady claim is that the evidence withheld by the prosecutor must have been “material.” The Supreme Court said in Strickler that “evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” This isn`t a high bar:

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

The Court said that there`s “never a real Brady violation” unless the prosecutor`s failure to disclose evidence would`ve changed the outcome. Thus, a Brady claim hinges entirely on whether the evidence withheld was material. Another way to look at it is that the remedy for a Brady violation isn`t to punish the prosecutor for hiding evidence, but to ensure that the criminal proceeding was “fair.” Smith v. Fairman, 769 F.2d 386 (7th Cir. 1986).

Filing a Brady Claim

Procedural Default:

The Supreme Court established in Strickler that a Brady claim cannot be procedurally-defaulted by a petitioner`s failure to raise the claim earlier on appeal. “In the context of a Brady claim, a defendant cannot conduct the reasonable and diligent investigation mandated by [this Court] to preclude a finding of procedural default when the evidence is in the hands of the state.”

Statute of Limitations:

There`s a one-year clock to file a habeas petition in federal court. sec 2244(d)(1), sec 2255(f). A Brady claim usually restarts the one-year clock to file a habeas petition in federal court for both state and federal petitioners under the “new fact” provision. Quezada v. Scribner, 611 F.3d 1165 (9th Cir. 2010) (restarting clock under 28 U.S.C. sec 2244(d)(1)(D) for state petitioner), Whitfield v. United States, 2022 U.S. App. LEXIS 11428 (6th Cir. Apr. 27, 2022) (restarting clock under 28 U.S.C. sec 2255(f) for federal petitioner). A Brady violation may also restart the clock under the provision that allows a late filing once an “unconstitutional impediment” created by the government is removed. See, e.g., Brown v. Sec`y DOC, 750 F. App`x 915 (11th Cir. 2018).

Important points for state petitioners:

A state petitioner, filing a habeas petition in federal court under 28 U.S.C. sec 2254, must first exhaust all post-conviction avenues in state court. sec 2254(b), (c). If the state court says the Brady claim is procedurally-defaulted under state court rules, a federal court will uphold that default if it`s an “adequate and independent” state-court rule. Here`s what the court in Breezee v. Perry, 2022 U.S. App. LEXIS 4062 (6th Cir. Feb. 14, 2022), said that means:

  • The rule must apply to the claim and the petitioner failed to comply with the rule,
  • State courts must actually enforce the rule, and
  • The Rule must be “firmly established and regularly followed.”

Because a Brady claim usually involves new evidence, a federal habeas court is limited to only the record that was before the state court during all the proceedings leading up to the federal petition. Cullen v. Pinholster, 563 U.S. 170 (2011). If the new evidence wasn`t properly presented in state court, the federal court cannot consider it unless the petitioner can show “actual innocence.” sec 2254(e)(2). However, a federal habeas court can allow a petitioner to return to state court to further develop the state-court record with the new evidence. See Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011).

Important points for federal petitioners:

A federal petitioner can file a motion to vacate his conviction or sentence, under 28 U.S.C. sec 2255, if it was imposed in “violation of the Constitution or laws of the United States.” sec 2255(a). Brady held that suppression of favorable evidence by the prosecutor is a violation of due process, which falls under the Fifth Amendment and provides grounds for a sec 2255 motion.

Be careful, though, about raising a Brady claim under the guise of an ineffective assistance of counsel (IAC) claim. Brady isn`t an IAC kind of problem, and you risk being procedurally-defaulted because your claim would then be based on defense counsel`s performance, and not on the prosecutor`s failure to disclose favorable evidence. See, e.g., Scott v. Mullin, 303 F.3d 1222 (10th Cir. 2002), but see Smith v. Warden, 780 F. App`x 208 (6th Cir. 2019) (finding IAC of appellate counsel for failing to raise a valid Brady claim).

Second or Successive Habeas Bars to Brady Claims

Even though it`s the prosecutor`s fault when it comes to a Brady claim, some courts still say that the bars to second or successive (SOS) habeas petitions apply to Brady claims raised after a habeas petition has already been denied. Under the SOS bar for both state and federal petitioners, there must be a showing of “actual innocence” with the new-found evidence to allow another habeas petition with a Brady claim. See sec 2244(b)(2)(B), sec 2255(h)(1).

This has been a hot topic in the courts and judges have voiced strong opinions about how unfair it is to subject Brady claims to the SOS habeas rules. See In re Jackson, 12 F.4th 604 (6th Cir. 2021) (concurring judge arguing SOS bar “rewards” prosecutors for hiding evidence). In fact, all three judges in Jiminez v. Sec`y DOC, 758 F. App`x 682 (11th Cir. 2018), disagreed with the required outcome in that case and urged the Supreme Court to hear the appeal. But the high court has repeatedly refused to decide this issue. See cert den. Jiminez v. Jones, 139 S. Ct. 659 (2018).

Most courts, however, have granted authorization to file a SOS habeas petition with a Brady claim, holding that such a claim meets the prima facie showing required to allow authorization. But courts have held that if the materiality prong of a Brady claim isn`t met, some courts won`t authorize another petition. United States v. Lopez, 577 F.3d 1053 (9th Cir. 2008).

IN CONCLUSION, a Brady claim is a serious constitutional violation that can and often does overturn convictions. Raising the claim in the proper way is crucial if you want to obtain habeas relief 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.

Squandering the Opportunity

Today I walked into my office in a fancy high-rise office building in the city and said, “Alright! Another opportunity to make an impact.” And then I found myself sinking into the same old routine, simply winding through another day.

But why do I do this? Why do I squander the day doing things that won’t make a difference “at the end of the day,” as they say. If I really get honest with myself, it’s because making a meaningful impact requires taking risks. I’m not a big risk-taker these days!

If I can offer anyone leaving prison some advice, it’s don’t be afraid to take some risks. Being safe and secure makes us feel good, but it’s such an obstacle to becoming successful — however you might define that word.

There’s lots of “good” things out here, but don’t let the good get in the way of what’s better.

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.

Doing Time as a Sex Offender: Residency Restrictions for Sex Offenders

Numerous studies show that laws restricting where sex offenders may live have done nothing to make children safer, and experts say these proximity laws, as they`re called, have actually increased the chances a sex offender will reoffend. Here we take a look at the current status of sex offender residency restrictions.

Laws Restricting Where a Sex Offender Can Live

Many states have laws restricting where a sex offender may live, often being some arbitrary distance from places where children gather. See United States v. Rudd, 662 F.3d 1257 (9th Cir. 2011) (reviewing some of these laws). Probably the most notorious state for its sex offender laws is Florida, where a qualifying sex offender cannot live within 1,000 feet of any child care facility, park, playground, or school. Fla. Stat. sec 775.215(1). This distance is measured in a straight line from the person`s property line to the property line of those locations. New York`s law is similar but says that a sex offender may not “enter” school grounds, which it defines as 1,000 feet around the school`s property line. N.Y. Exec. Law sec 259(c)(14).

Some states, like FL, have a statewide sex offender residency restriction, but also allow local municipalities to create their own restrictions that exceed state law. For example, Florida has numerous counties where the residency restriction is 2,500 feet, or half a mile. See Pasco Co. Ords. 66-67, et seq.

Even where there is no statewide restriction, local ordinances might still limit where a sex offender may live. See, e.g., Doe v. County of L.A., 2015 U.S. Dist. LEXIS 200109 (C.D. Cal. Mar. 13, 2015) (L.A. County`s 300-foot ordinance), Valenti v. Hartford City, 225 F. Supp. 3d 770 (N.D. Ind. 2016) (explaining an Indiana city`s 300-foot ordinance).

The be clear, there is no federal 1,000-foot rule for sex offenders. With that said, federal judges may restrict where a person may (or may not) live while on supervised release. 18 U.S.C. sec 3563(b)(13). But this restriction must “further the purpose of the defendant`s supervised release” and be “no greater than necessary” in doing so. United States v. Hernandez, 510 Fed. Appx. 591 (9th Cir. 2013). Even if a federal judge imposes the same residency restriction of the state where the person will live, this is not a valid reason for supervised release purposes. The person might move to another state without a residency restriction, and that would make the judge-imposed restriction unreasonable. See United States v. Collins, 684 F.3d 873 (9th Cir. 2012).

Not Every Sex Offender Qualifies Under the Residency Restrictions

In New York, only level three sex offenders have the statewide 1,000-foot rule. N.Y. Exec. Law sec 259(c)(14). And in Florida, not every sex offense qualifies: The victim must be younger than 16, and the offense (even if out of state) must match those listed in the statute. Fla. Stat. sec 775.215(3).

Most states also limit the restriction to offenses that occur after the date the restriction is enacted to avoid an ex post facto violation, the part of the U.S. Constitution that forbids retroactive punitive laws. See, e.g., Does 1-5 v. Snyder, 834 F.3d 696 (2016) (declaring Michigan`s retroactive sex offender residency restriction unconstitutional).

Some states, but not all, also “grandfather” in sex offenders who were living in an area before the restriction was created, and some also don`t require a sex offender to move if a forbidden location pops up by their house. See, e.g., Fla. Stat. sec 775.215(2).

Being Homeless as a Sex Offender

Supreme Court Justice Sotomayor has voiced her concerns that residency restrictions on sex offenders can lead to homelessness, saying New York`s “within-1,000-feet-of-a-school ban makes residency for [sex offenders] practically impossible in New York City.” Ortiz v. Breslin, 142 S. Ct. 914 (2022) (statement of Sotomayor, J., respecting denial of certiorari). The Rudd court also had the same concerns about residency restrictions:

Research suggests that residency restrictions decrease employment opportunities for offenders and increase transience and homelessness.

To deal with homeless sex offenders because of residency restrictions, some state have turned to keeping them in prison until they can find suitable housing. Thankfully, courts have struck down such laws. See Ortiz (collecting cases). In states where sex offenders are allowed to be homeless, they are closely monitored. Fla. Stat. sec 1943.0435(b)1, 2 (requiring registry updates every 30 days for homeless sex offenders).

Moving or Traveling as a Sex Offender

The Supreme Court has held that moving to a location that`s not covered by the Sex Offender Registration and Notification Act (SORNA) is not a violation of federal law. Nichols v. United States, 578 U.S. 104 (2016). In that case, a sex offender moved from Kansas to the Philippines and the government charged him with failure to register under SORNA. The court, however, overturned the conviction because the Philippines wasn`t a “jurisdiction” under SORNA. Had he moved to another state and not registered, that would have been a SORNA violation.

But that`s federal law. Going back to Florida, the most restrictive state, the sex offender registry requires a 48-hour notice when someone intends to move to another state or country. If they change their mind, they must let the state know within 48 hours or it`s a second-degree felony (up to 15 years in prison). Fla. Stat. sec 1943.0435(7), (8).

A sex offender in Florida who wants to travel outside the country for more than 4 days, must let the state know “at least 21 days before” the date of travel, or “as soon as possible” if it`s sudden. They must provide departure dates and times, and flight or cruise information, plus the state notifies local authorities at the destination. Id. This means it may not be a violation of federal law to leave a state, like Florida, but it`s surely a violation of state law.

Sex Offenders Living with Others

People, even sex offenders, have a “fundamental right to familial association.” United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012). In that case, the court held that a sex offender could live with his children, even though he wasn`t married to their mother.

But there are exceptions to the rule. In McClamma v. Remon, 561 Fed. Appx. 787 (11th Cir. 2014), the federal court of appeals held that the right to be with family is not an “absolute” right. The probation officer in that case had applied a no-contact rule for all children, including the sex offender`s own children. The court held that this didn`t violate any “clearly established” rule by the Supreme Court. However, in Doe v. Lima, 270 S. Supp. 3d 684 (S.D.N.Y. 2017), a federal court held in a similar case that a complete ban on a sex offender`s children, without less-restrictive alternatives, violated “well-established” law. Both of these cases are instructive on how to challenge such a restriction.

Residency Restrictions Increase the Risk of Re-Offense by Sex Offenders

It`s one thing to say that residency restrictions have proven to do nothing to protect children from sex crimes, but it`s quite another to say that these restrictions have been shown to increase the risk of a sex offender reoffending against a child. Justice Sotomayor cited some studies in her statement in Ortiz and made this point:

Scholars have explained that by banishing returning individuals to the margins of society, residency restrictions may lead to homelessness, unemployment, isolation, and other conditions associated with an increased risk of recidivism.

Citing even more studies, the court in Rudd extensively criticized the negative effect of residency restrictions on sex offenders:

There remains significant questions regarding the substantive reasonableness of residency restrictions, including whether they too stringently restrict where a defendant can reside, or whether they play a role in increasing the likelihood of recidivism.

More specifically, the Minnesota Dept. of Corrections looked at 224 sex offenses committed by sex offenders and found that not one of them would have been deterred by a residency restriction. [1] And when Jacksonville, FL, increased its residency restriction to 2,500 feet, a study showed it did absolutely nothing to curb sex offenses against children there. [2]

Public Support for Residency Restrictions on Sex Offenders

The public overwhelmingly supports residency restrictions on sex offenders, despite the mountain of evidence showing that they don`t do anything to protect children from sex offenses. In her book Sex Crime, Offenders, and Society, Professor Christina Mancini cites several studies she conducted with other scholars that showed 82% of Florida residents supported residency restrictions, and over 80% of Michigan residents supported them.

IN CONCLUSION, despite the fact that residency restrictions on sex offenders do more harm than good, the public embraces them and sex offenders must be aware of them. It`s critical that sex offenders understand these laws, lest they end up in prison.

Footnotes:

[1] G. Duwe, Residency Restrictions and Sex Offender Recidivism: Implications for Public Safety, 2 Geography & Pub. Safety 6, 7 (May 2009).
[2] Nobles, M.R., et. al, Effectiveness of Residency Restrictions in Preventing Sex Offense Recidivism, Crime and Delinquency, 58, 491-513 (2012).

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.

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.

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