Does the Actual Innocence Exception Apply to Non-capital Sentencing? By Regina Cocco

Transcription

1 Does the Actual Innocence Exception Apply to Non-capital Sentencing? By Regina Cocco I. Introduction Although federal habeas courts have constructed the cause-and-prejudice barrier to prevent them from hearing procedurally defaulted or abusive habeas corpus claims, they left a window to avoid miscarriages of justice. 1 This window is known as the actual innocence exception. 2 For a petitioner on death row challenging his or her sentence, the window is always open. 3 For a petitioner in a non-capital case, the window is either open, 4 closed, 5 or cracked, 6 depending on the circuit in which the case arises. 1 See Wainwright v. Sykes, 433 U.S. 72, 97 (1977) (holding that in order to collaterally attack a conviction or sentence based on errors that could have been but were not pursued on direct appeal, the petitioner must show cause and actual prejudice resulting from the errors); Murray v. Carrier, 477 U.S. 486, (1986) (holding that if a petitioner cannot demonstrate cause-and-prejudice, his or her claim may still be heard if the failure to do so would result in a fundamental miscarriage of justice). 2 Carrier, 477 U.S. at 496. Carrier noted that the conviction of one who is actually innocent is a fundamental miscarriage of justice. Id. This miscarriage of justice exception is commonly called the actual innocence exception, which is how this comment will hereinafter refer to it. 3 See Smith v. Murray, 477 U.S. 527, (1986) (applying the actual innocence exception to capital sentencing); Sawyer v. Whitley, 505 U.S. 333 (1992) (refining the concept). 4 See Spence v. Superintendent, 219 F.3d 162, (2d Cir. 2000) (holding that the actual innocence exception applies to all non-capital sentencing cases). See infra Part II.C for a detailed discussion of the Second Circuit s position. 5 See infra Parts II.A and II.B for detailed discussion of the positions of the Eighth and Tenth Circuits, which hold that the actual innocence exception applies only to capital sentences. 6 See infra Part II.C for a discussion of the Fourth and Fifth Circuits, which both apply the actual innocence exception to non-capital sentencing in one context: challenges to enhanced s entences resulting from career offender classifications. 1

2 In applying the actual innocence exception to capital sentencing, the Supreme Court left open the question of whether the exception applied to non-capital sentencing. This unresolved issue has caused a three-way split among the federal circuits. 7 Normally a habeas corpus petitioner must demonstrate cause for the failure to comply with the state s procedural rule and show that actual prejudice will result from a failure to hear the claim in order to have the default excused. 8 If a petitioner cannot show cause-and-prejudice, the Supreme Court has held that it can still hear the merits of a procedurally defaulted claim if the failure to do so would result in a miscarriage of justice. 9 This has developed through case law as the actual innocence exception. 10 Although the actual innocence exception developed in the more obvious context of innocence of the crime for which a prisoner was incarcerated, the Supreme Court has held that the exception also applies in the context of innocence of the death sentence. 11 In other words, a prisoner can be unqualified for the death sentence or innocent of death See Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002), vacated and remanded on other grounds, 124 S. Ct. 1847, 1848 (2004). The Supreme Court recently reviewed the subject of this circuit split when it heard a case that is discussed in Part II.B. However, the Court ultimately declined to answer the question of whether the actual innocence exception applies to non-capital sentencing, leaving the split intact. Id. 8 See Sykes, 433 U.S. at (establishing the cause-and-prejudice requirement). 9 See Carrier, 477 U.S. at (announcing that procedural default can be excused where a constitutional violation has probably resulted in the conviction of one who is actually innocent so as to prevent a miscarriage of justice ). 10 Id. 11 Smith v. Murray, 477 U.S. 527, (1986). 12 Smith, 477 U.S. at 537 (recognizing the awkwardness of the phrase innocent of death but defining it as not death sentence-qualified). 2

3 While it readily applied the actual innocence exception to capital sentencing, 13 the Supreme Court has not spoken to whether it should also apply to non-capital sentencing, giving rise to a circuit split over the open question. 14 There are positions at the extremes that it does apply 15 and that it does not 16, as well as an intermediate position. The intermediate position is that the actual innocence exception applies in the context of challenges to non-capital sentences based on career offender determinations that is, a prisoner may claim actual innocence of his or her non-capital sentence if it is based on an erroneous career offender finding. 17 A fourth position on the issue, while not technically part of the split, belongs to the Seventh Circuit, which holds that the actual innocence exception did not survive that enactment of the Antiterrorism and 13 See Carrier, 477 U.S. at 478, (announcing the actual innocence exception to procedural default); Smith, 477 U.S. at 527 (applying the exception to capital sentencing). See also James J. Sticha, Note, To Be or Not to Be? The Actual Innocence Exception in Non-capital Sentencing Cases. 80 MINN. L. REV. 1615, 1626 (1996) (noting that both decisions came down on the same day). 14 See Sticha, supra note 13 at (1996) (noting the existence of the circuit split and reviewing it as it stood at the time). See infra Part II for a detailed overview of the split as it currently stands. 15 See infra Part II.C for a discussion of the position that the actual innocence exception applies to non-capital sentencing. 16 See Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997) (holding that the actual innocence exception does not apply in the non-capital sentencing context); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (holding that [a] person cannot be actually innocent of a non-capital sentence ). See infra Part II.A for a discussion of the position that the exception applies only to capital sentencing. 17 See United States. v. Mikalajunas, 186 F.3d 490, (4th Cir. 1999) (holding that actual innocence exception applies to non-capital sentencing cases in the context of challenges to sentences based on career offender findings); Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002) (deciding to align itself with the Fourth Circuit s position). See infra Part II.B for a discussion of the circuits that apply the actual innocence exception to non-capital sentencing where a challenge to a career offender designation is being made. 3

4 Effective Death Penalty Act (AEDPA). 18 This Comment proposes that the actual innocence exception should apply in the noncapital sentencing context. 19 Section III explores the rationale for this. Section III.A discusses how the two seminal Supreme Court cases that extended the actual innocence exception to the sentencing stage, Smith v. Murray 20 and Sawyer v. Whitley, 21 are ambiguous as to whether an application to non-capital sentencing was considered. Section III.B discusses how extending the application is consistent with the thrust of the Supreme Court s desire in Sawyer to keep the exception focused on objective considerations. Section III.C discusses the roots of the actual innocence doctrine and how extending the exception is in keeping with the Court s original purpose of streamlining habeas review with a focus on innocence. A. Background of procedural default, cause-and-prejudice, and actual innocence A prisoner cannot normally raise a procedurally defaulted claim in a habeas petition without showing cause for the default and actual prejudice from the asserted error. 22 Procedural default occurs when a state prisoner who has failed to preserve an issue in accordance with state law, raises that issue in a federal habeas petition. 23 For example, if a state requires a contemporaneous objection in order to preserve a review of a ruling on the admissibility of 18 See Hope v. United States, 108 F.3d 119 (7th Cir. 1997) (holding that the actual innocence exception does not survive the AEDPA). This Comment will not explore only whether the actual innocence exception should be applied to non-capital sentencing and not the effect of the AEDPA. 19 See infra Part III U.S. 527 (1986) U.S. 333 (1992). 22 Sykes, 433 U.S. at David A. Dow, The Third Dimension of Death Penalty Jurisprudence, 22 AM. J. CRIM. L. 151, 176 (1994). 4

5 certain evidence, then a defendant who does not make a timely objection will not be allowed to challenge it on federal habeas corpus review. 24 Procedural default can also occur if a claim is abandoned because it was not presented it on appeal, if a state s filing deadline is not met, or if a state procedural rule is not complied with. 25 An exception to the cause-and-prejudice requirement is recognized when the failure to hear the merits of a procedurally defaulted habeas petition would result in a fundamental miscarriage of justice. 26 This miscarriage of justice exception became known as the actual innocence exception. 27 It should be noted that the actual innocence exception applies in another doctrine that is distinct from procedural default the abuse of the writ doctrine. 28 Until the enactment of the 24 Id. 25 See generally RANDY HERTZ & JAMES S. LIEBMAN, 2 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 26.1 (discussing procedural default). 26 Carrier, 477 U.S. at See Kuhlmann v. Wilson, 477 U.S. 436, 448 (1986) (explaining how the actual innocence exception arose from federal habeas corpus statutory language). The actual innocence exception was derived from the language of the federal habeas statute which, prior to 1966, allowed successive claims to be denied without hearing if the judge were "satisfied that the ends of justice will not be served by such inquiry. Id. Kuhlmann held that the miscarriage of justice exception survived the removal of that language from the statute, 28 U.S.C. 2244(a) in Id. See Schlup v. Delo, 513 U.S. 298, (1995) (discussing how a colorable claim of factual innocence fits into fundamental miscarriage of justice claim). 28 See e.g., Limin Zheng, Comment, Actual Innocence as a Gateway Through the Statute of Limitations on the Filing of Federal Habeas Corpus Petitions, 90 CAL. L. REV. 2101, 2121 (2002). Bringing either a successive or second petition constitutes what is known as abuse of the writ. Id. A successive petition is one where a petitioner raises grounds identical to those raised and dismissed on their merits in previous habeas petitions. Id. Second petitions raise grounds that were previously available to a petitioner but which he did not rely upon in prior habeas petitions. Id. See generally Bryan A. Stevenson, The Politics of Fear and Death: Successive Petitions in Capital Federal 5

6 AEDPA in 1996, both procedural default and abuse of the writ could be excused by a showing of cause and prejudice. 29 Like procedural default, abuse of the writ prevents a federal court from hearing the claims of a federal habeas corpus petition. 30 Both abuse of the writ and procedural default aim to protect the finality of litigation. 31 For this and other reasons, the causeand-prejudice standard developed in the procedural default context was transported to the abuse of the writ context. 32 In addition, the actual innocence exception as it applies to sentencing has been developed in both procedural default and abuse of the writ contexts. As such, the cases cited herein have arisen in both contexts. While the procedural default doctrine is based on considerations of comity and finality, the Supreme Court has said that [i]n appropriate cases those principles must yield to the imperative of correcting a fundamentally unjust incarceration. 33 Such procedural default can be excused and a conviction collaterally attacked by showing cause for the default and that actual prejudice has resulted from claimed errors. 34 Although cause-and-prejudice was Habeas Corpus Cases. 77 N.Y.U. L.REV. 699, , 2002 (discussing evolution of rules governing review of successive habeas petitions, ending with the AEDPA s new standard). 29 See Sykes, 433 U.S. at 97 (instituting the cause-and-prejudice standard for procedurally defaulted cases); McCleskey v. Zant, 499 U.S. 467, (1991) (extending the standard to abuse of the writ cases). See generally Thirty-Second Annual Review of Criminal Procedure: Habeas Relief for State Prisoners, 91 GEO.L.J. 817, 844 (2003) (explaining gatekeeping stage). 30 Charles F. Baird, The Habeas Corpus Revolution: A New Role for State Courts? 27 ST. MARY S L. J. 297, 318 (1996). 31 McCleskey, 499 U.S. at (analyzing the similar purposes of state procedural default and federal abuse of the writ and concluding that the cause-and-prejudice standard should be extended to abuse of the writ). 32 Id. 33 Engle v. Isaac, 456 U.S. 107, 135 (1982). 34 Wainwright v. Skyes, 433 U.S. 72, 97 (1977). 6

7 initially undefined, 35 subsequent Supreme Court decisions have expanded on the standard. Murray v. Carrier set out to explain the first half of the standard: cause depends on whether a prisoner can show that an objective factor, external to the defense, impeded his efforts to comply with the state s procedural rule. 36 Prejudice has been defined as a showing that the prisoner was denied fundamental fairness at trial. 37 B. An exception to the exception: actual innocence The cause-and-prejudice requirement is not the end of the story. Murray v. Carrier held that if a failure to hear the merits of a procedurally defaulted claim would result in a fundamental miscarriage of justice, the federal habeas court could hear the claim. 38 The Carrier court asserted confidence that fundamental fairness would not be thwarted by the cause-andprejudice standard. 39 Despite its confidence in the standard, the Court set out the actual innocence exception for the extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent. 40 The actual innocence exception is not an independent basis for habeas relief rather it is a gateway to federal review of the substantive claim that has been barred by procedural default See Sykes, 433 U.S. at 97 (declining to define cause and actual prejudice ). 36 Murray v. Carrier, 477 U.S. 486, (1986). See generally James A. Strazzella, Ineffective Assistance of Counsel Claims: New uses, Old problems. 19 ARIZ. L. REV. 443, (1978) (finding that what often qualifies as cause is ineffective assistance of counsel). 37 See United States v. Frady, 456 U.S. 152, 170 (1982) (stressing that to be prejudicial errors must have worked to prisoner s substantial disadvantage at trial). 38 Carrier, 477 U.S. at Id. 40 Id. at (emphasis added). 41 Herrera v. Collins, 506 U.S. 390, 405 (1993). 7

8 While the Supreme Court laid out the actual innocence exception in Carrier and Kuhlmann v. Wilson, 42 it simultaneously extended the exception to capital sentencing in Smith v. Murray. 43 In Carrier and Kuhlmann, actual innocence refers to innocence of a conviction. In the Smith context, however, actual innocence means innocent of the death penalty. 44 A prisoner who is innocent of death is one who would not have been eligible for the death penalty because the state would have failed to meet the criteria for its imposition. 45 The Court acknowledged the awkwardness of the concept of innocence of death. 46 Nevertheless, it established that a showing of either innocence of the crime or innocence of the death penalty was a gateway through which a habeas petitioner could pass to have his or her otherwise-barred claim heard. 47 While the Court extended the actual innocence exception to capital sentencing n Smith, it established the standard of proof for the exception in Sawyer v. Whitley. 48 Sawyer held that in 42 See Kuhlmann, 477 U.S. at & n.17 (applying the actual innocence exception to abuse of the writ doctrine) U.S. 527 (1986). The Carrier, Kuhlmann and Smith decisions all came down from the Court on the same day. 44 Sawyer, 505 U.S. at The Court in Sawyer agreed with the Eleventh Circuit s test for determining actual innocence, where but for the alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the petitioner was ineligible for the death penalty. Id. at 347 n.15 citing Johnson v. Singletary, 938 F.2d 1166, 1183 (1991). Id. at Id. at 537 ( We acknowledge that the concept of actual, as distinct from legal innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense. ). 47 Herrera v. Collins, 506 U.S. 390, 404 (1993) (holding that actual innocence is a gateway to habeas review, not an independent constitutional claim) U.S The petitioner in Sawyer had been convicted of murder and sentenced to death in Id. at 336. He filed a successive petition, to which the Fifth Circuit responded by granting a certificate of probable cause to determine whether the petition s merits could be heard on the grounds that he was actually innocent of the death 8

9 order to show actual innocence one must show by clear and convincing evidence that, but-for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law. 49 Sawyer emphasized that the focus of the exception is on factual, as opposed to legal, innocence. 50 II. Overview of the split It has been said that the very nature of the writ [of habeas corpus] demands that it be administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected. 51 But the Supreme Court s emphasis on the narrowness of the actual innocence exception in its application to capital sentencing has left the federal courts unsure of just how much flexibility and reach it has. 52 A. Actual innocence does not extend to non-capital sentences The most limited application of the actual innocence exception to sentencing is held by the Eighth and Tenth Circuits. 53 Although these circuits now share identical positions on the application of the actual innocence exception to non-capital sentencing cases, the Eighth penalty. Sawyer v. Whitley, 945 F.2d 812, 814 (5th Cir. 1991), aff d. 505 U.S. 333 (1992). The Fifth Circuit determined that the actual innocence exception has not been satisfied by the evidence the petitioner claimed was unconstitutionally withheld from the jury. Id. The Supreme Court affirmed, and set out the standard of proof for actual innocence of a capital sentence. Sawyer, 505 U.S. at Sawyer, 505 U.S. at 337. See also Calderon v. Thompson, 523 U.S. 538, (1998) (noting that the clear and convincing standard of proof applies to actual innocence is the sentencing context only, as a lower standard is required for actual innocence of the crime). 50 Id. at Harris v. Nelson, 394 U.S. 286, 291 (1969). 52 Sawyer, 505 U.S 333, 341 (1992) (noting that actual innocence is a very narrow exception). 9

10 Circuit s approach is the result of a position change. 54 The Tenth Circuit alone has flatly refused to extend the exception to non-capital sentences since first considering the issue in United States v. Richards. 55 In 1996, The Tenth Circuit reaffirmed its position that the actual innocence exception cannot apply to non-capital sentencing in another context sentencing enhancements under career, or habitual, offender statutes. 56 This decision was particularly stringent, since other circuits have carved out habitual offender statutes as an area where the actual innocence exception applies. 57 Yet the Tenth Circuit found that a sentence enhancement was distinct from an independent criminal offense, and that the actual innocence exception did not apply to the 53 Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997) (joining the Tenth Circuit in holding that the actual innocence exception does not apply in the non-capital sentencing context). 54 See id. (concluding that Sawyer applies only to the sentencing phase of death cases); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (holding that [a] person cannot be actually innocent of a non-capital sentence ). Cf. Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991) (holding that the actual innocence exception applies where a petitioner was innocent of facts underlying a finding that he was a habitual offender, which had resulted in a longer prison sentence). 55 Richards, 5F.3d at See Reid v. Oklahomah, 101 F.3d 628, 630 (1996) (finding that, because a person cannot be innocent of a noncapital sentence per Richards, the petitioner s challenge to his recidivist enhancement did fall within the scope of the miscarriage of justice exception). 57 See United States. v. Mikalajunas, 186 F.3d 490, (4th Cir. 1999) (exception applies to non-capital sentencing cases in the context of challenges to sentences based on career offender findings); Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002) (deciding to align itself with the Fourth Circuit s position). See infra Part II.B for a discussion of the circuits that apply the actual innocence exception to non-capital sentencing where a challenge to a career offender designation is being made. 10

11 former. 58 The Eighth Circuit relied on Richards reasoning and likewise refused to extend the exception to non-capital cases in Embrey v. Hershberger. 59 As in Richards, the petitioner argued that his enhanced sentence was the result of a mistake, and that he was therefore actually innocent of it. 60 Embrey characterized the defendant s claim as essentially legal, as opposed to factual, and held that this type of claim was not the sort miscarriage of justice that the Supreme Court had envisioned. 61 Instead, the Eighth Circuit stressed, the actual innocence exception concerns factual, as opposed to legal, innocence. 62 The court posited that a legal claim that a criminal statute had been misapplied to the facts could always be converted to a claim that the relevant facts did not support a conviction and the defendant was therefore actually innocent. 63 In the court s view, this was problematic since then any such claim can be said to be one of actual innocence, effectively undermining the barrier to post-conviction relief that the principle of actual innocence was meant to erect See Reid, 101 F.3d at 630 (noting that the Oklahoma habitual offender statute merely adds a non-capital enhancement to a sentence rather than setting out elements of an independent criminal offense). 59 Embrey, 131 F.3d at (holding that Sawyer applies only to the sentencing phase of death cases and noting its agreement with the Tenth Circuit). 60 Id. In Embrey, the petitioner argued that he was not eligible for his sentence under the Federal Kidnapping Act, 18 U.S.C (2000). 61 Embrey, 31 F.3d at See id. at 741 (noting importance of maintaining focus on legal innocence); Sawyer, 505 U.S. at 339 (stressing that the exception concerns factual, not legal, innocence). 63 Embrey, 131 F.3d at Cf. Smith, 477 U.S. at 537 (characterizing the actual innocence exception as a way around the barrier of procedural default). 11

12 Notably, the Embrey majority did not mention the Eighth Circuit s pre-sawyer treatment of the actual innocence exception and its struggle to harmonize its case law with the Supreme Court s 1992 decision. But in 1991, in Jones v. Arkansas, 65 the Eighth Circuit had found a petitioner actually innocent of the sentence he had received in error when the state misapplied its habitual offender statutes. 66 Following the Supreme Court s decision in Sawyer, the Eighth Circuit questioned the validity of Jones but avoided overruling it. 67 In Embrey, the Eighth Circuit effectively changed its position on the actual innocence exception s applicability to noncapital sentencing without mentioning Jones. The Eighth Circuit s post-sawyer struggle with its Jones holding was due to language in Sawyer that it viewed as indicating that the actual innocence exception was limited to capital sentencing. 68 Both the Eighth and Tenth Circuits took Sawyer s declaration that, in the context of a non-capital case, the concept of actual innocence is easy to grasp, to mean that the Court F.2d 375, (8th Cir. 1991). 66 Id. Jones was convicted under a habitual offender statute that was erroneously applied retroactively to him, as the statute contained language restricting when it could be applied. Id. at The court applied the actual innocence exception to the petitioner s procedurally defaulted habeas claim and noted that [I]t would be difficult to think of one who is more innocent of a sentence than a defendant sentenced under a statute that by its very terms does not even apply to the defendant. Id. at See Sticha, supra note 13 at 1632 (discussing how, post-sawyer, the Eighth Circuit considered Jones to still be good law although language in Sawyer indicated that the actual innocence exception did not apply to non-capital sentencing cases). 68 See Waring v. Delo, 7 F.3d 753, 757 (8th Cir. 1993) (discussing how the language in Sawyer that the concept of actual innocence is easy to grasp in non-capital cases, implies that the Court was referring to the guilt or innocence phase and was not intending to extend the exception to the sentencing phase of non-capital cases). 12

13 was referring to the crime itself. 69 Sawyer further noted that its task was to strive to construct an analog to the simpler situation represented by the case of a non-capital defendant. 70 The Eight and Tenth Circuits read this simpler situation to be the guilt phase of the non-capital trial. 71 As such, Sawyer s perception that the concept of actual innocence as easier to understand in a non-capital context meant that it was only contemplating extending the actual innocence exception to capital cases, which, unlike non-capital cases, have a separate sentencing phase. 72 The Eight and Tenth Circuits rely heavily on their interpretation of key language in Sawyer to bar the use of the actual innocence exception in non-capital sentencing. The Embrey dissent characterized this as exalt[ing] form over substance. 73 It asserted that the majority had misread Sawyer 74 and saw no valid reason to restrict the Sawyer analysis to cases challenging capital sentences. 75 The dissent boiled its argument down to the simple idea that one is either 69 See (agreeing with the Tenth Circuit s conclusion in Richards that the most natural inference to draw from the Supreme Court s language is that in non-capital cases the concept of actual innocence is easy to grasp because it means the more commonly understood innocence of the crime ). 70 Sawyer, 505 U.S. at Embrey, 131 F.3d at ; Richards, 5 F.3d at Richards, 5 F.3d at 1371; see Sticha, supra note 13 at 1634 (discussing the Tenth Circuit s analysis of this Sawyer language). 73 Embrey 131 F. 3d at 742 (Lay, J., dissenting). The dissent also pointed out that the court could have addressed the merits of Embrey s habeas motion regardless of the procedural default because doing so would serve the ends of justice. Id. at 743. See supra note 52 for an explanation of how the actual innocence exception arose from the statute s ends of justice language. 74 See id. at 743 (emphasizing that the Supreme Court had never spoken directly on the subject by ruling that the actual innocence exception did not extend to non-capital sentences and that Sawyer s analysis did not expressly restrict itself to cases involving capital sentences). 75 Id. at

14 eligible or ineligible for his or her sentence. 76 B. Actual innocence exception applies to non-capital sentencing only in the context of career offender guidelines The Fourth Circuit applied the actual innocence exception in a non-capital sentencing case for the first time in the context of a career offender sentencing provision in United States v. Maybeck. 77 Although Maybeck did not restrict the application of the actual innocence exception to only those cases where the application of a career offender/recidivist statute was being challenged, it did so five years later in United States v. Mikalajunas. 78 In Maybeck, the Fourth Circuit heard a petitioner s procedurally defaulted habeas motion because it found that he was actually innocent of one of the requirements preceding classification as a career offender. 79 Maybeck analogized the factors, set out in state sentencing guidelines, which lengthen a sentence in a non-capital case to the aggravating circumstances that result in a death sentence in a capital case. 80 Following this logic, the defendant was actually innocent of the factors underlying his career offender status, and therefore did not qualify for his enhanced sentence in the same way a capital defendant would not have qualified for death if he or she were 76 Id. at 744. (stating, If an individual receives a sentence for which he or she is not eligible, the eligibility test allows a court to reach the sentence and to correct or vacate that sentence. ) F.3d 888, 893 (4th Cir. 1994) F.3d 490, (4th Cir. 1999). 79 A probation officer had listed a conviction for a non-violent burglary conviction as one involving violence, since Mayback himself had erroneously listed it this way. Maybeck, 23 F.3d at 890. This led to an erroneous finding by the district court that Maybeck was a career offender, with no objection from Maybeck s attorney. Id. at Id. at 893 (noting that defendants in capital and non-capital cases, if not granted an exception to cause-andprejudice, would suffer the same consequence of an enhanced sentence based on acts of which they were actually innocent). 14

15 actually innocent of the aggravating factors underlying a death sentence. 81 Maybeck noted the lack of guidance from the Supreme Court on the issue of whether the actual innocence exception applied to non-capital cases. 82 It saw little difference between, on one hand, holding that one could be innocent of the acts required to find a death sentence in a capital case, and on the other hand, that one could be innocent of the acts required to find an enhanced sentence in non-capital cases. 83 The court further noted that although the Supreme Court had not applied the actual innocence exception to non-capital cases, the Seventh and Eighth Circuit at that time had done so. 84 Maybeck acknowledged that, by contrast, the Tenth Circuit had flatly decided that the actual innocence exception should not extend to non-capital cases. 85 Although the circumstances under which Maybeck applied the actual innocence exception in a non-capital context were that of a challenge to a career offender classification, there was no language in the decision limiting the exception to factually identical situations. 86 Rather, Maybeck took as a basic premise that the Supreme Court has recognized that it is antithetical to our sense of justice to prevent a defendant from asserting his actual innocence simply because 81 Id. 82 Id. 83 Id. 84 Maybeck, 23 F.3d at 893 (noting that in Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir. 1992), the Seventh Circuit had applied the exception to habitual offender proceedings, and in Jones v. Arkansas, 929 F.2d 375, 381 (8th Cir. 1991), the Eighth Circuit had done the same). 85 Id. (citing Richards, 5 F.3d at 1371). 86 Id. at 893; see also Mary M. French, The Fourth Circuit: Adding to the Inter-Circuit Conflict, 7 FED. SENT. R. 237, 1-2 (noting that the scope of Maybeck was undefined). 15

16 that defendant has not followed the correct procedural route. 87 By not restricting its holding to career offender cases, the court left open the question of where else the actual innocence exception could be applied in non-capital cases. That question was answered in Mikalajunas. 88 Five years after Maybeck, the Fourth Circuit held that the actual innocence exception applies in non-capital sentencing only in the context of erroneous application of career offender guidelines. 89 Although the petitioners in Mikalajunas read Maybeck as allowing the application of actual innocence exception whenever a defendant is innocent of a sentencing adjustment, the court insisted that this broader reading of Maybeck was incorrect. 90 The court believed such a reading would swallow the rule that issues not raised on direct appeal cannot be heard in a habeas petition absent a showing of cause-and-prejudice to excuse the procedural default. 91 At issue in Mikalajunas were not career offender guidelines (as in Maybeck) but enhancement of sentence guidelines. 92 Although the Fourth Circuit agreed that the petitioners 87 See Maybeck, 23 F.3d at 892 (citing Engle v. Isaac, 456 U.S. 107, 135 (1982)) (stating that [i]n a different context, the United States Supreme Court has recognized that it is an unacceptable deviation from our fundamental system of justice to automatically prevent the assertion of actual innocence simply because a defendant has not observed procedural avenues available to him. ). 88 Mikalajunas, 186 F.3d at Id. at Id. 91 See id. at 495 (finding that a broader interpretation of Maybeck would conflict with Supreme Court authority indicating that more than prejudice is needed to excuse a procedural default). 92 Id. at 496. The sentences had been enhanced because of a finding that they physically restrained the victim. Mikalajunas brother, who was not a party to the habeas petition, pled guilty as an accessory to the murder committed by the two petitioners. Id. He challenged the increase of his offense level based on a finding that he had physically restrained of the victim. Id. The Fourth Circuit had agreed with him that the level of restraint used on the victim did not meet the predicate for sentence enhancement because it did not add anything to the basic crime. Id. 16

17 sentences had been improperly adjusted upwards, since it held that the actual innocence exception did not apply outside the context of career offender provisions (in non-capital cases), procedural default barred the court from considering the merits of the habeas petition. 93 While Maybeck had been a unanimous panel decision, one of the judges on the Mikalajunas three-judge panel wrote a vigorous dissent. 94 Judge Murnaghan pointed out the absence of language in Maybeck limiting the application of the actual innocence exception to the exact situation that arose in Maybeck career offender enhancements. 95 He did not share the majority s concern that applying the actual innocence exception more broadly would equivocate the cause prong of the cause-and-prejudice standard. 96 Instead, he argued, the Supreme Court developed the actual innocence exception for cases where prejudice is so severe that a conviction 97 or sentence 98 is fundamentally unjust. He noted the Supreme Court s trend of narrowing the availability of habeas corpus relief in order to stress the finality of decisions, rather than the correction of errors, but points out that the Court had been simultaneously expanding the miscarriage of justice standard. 99 Finally, Judge Murnaghan pointed out the practical implications of the majority s narrow reading of Maybeck in this case: the petitioners 93 Mikalajunas, 186 F.3d 490 at (noting that the habeas petition was procedurally defaulted because the petitioners failed to raise the issue of the imp roper sentence enhancement on direct appeal.). 94 Id. at 497 (Murnaghan, J., dissenting). 95 Id. at 498 (noting that the majority balked at applying Maybeck despite the absence of limiting language in Maybeck that would prevent the application of the actual innocence exception to situations such as petitioners (situations other than career offender provision errors)). 96 Id. at Id. at 498 (citing Murray v. Carrier, 477 U.S. 486, 496 (1986)). 98 Id. (citing Sawyer, 505 U.S. at 336). 99 Id. at

18 would remain in prison for one year and four years, respectively, longer than they should by law. 100 In Haley v. Cockrell, 101 the Fifth Circuit recently joined the Fourth in its limited application of the actual innocence exception to non-capital sentencing. 102 Haley pointed out that the Supreme Court had never specifically foreclosed the application of the actual innocence exception to non-capital sentencing cases. 103 Haley held that the actual innocence exception applies to non-capital sentencing procedures involving a career or habitual felony offender for two reasons. The first was in order to give formal recognition to its own dicta from two previous Fifth Circuit cases, Smith v. Collins 104 and Sones v. Hargett, 105 in which it had assumed (without holding) that the actual innocence exception was available in a non-capital sentencing context. 106 The second reason was to maintain the actual innocence exception s fundamental purpose. 107 The Haley court noted that being condemned to serve a sentence for which one is ineligible was a classic example of a fundamental miscarriage of justice. 108 Haley did not expand on its decision to restrict the actual innocence exception to only 100 Id. at 497 (Murnaghan, J., dissenting) F.3d 257, 264 (5th Cir. 2002), rehearing denied 325 F.3d 569 (5th Cir. 2003), cert. granted sub nom Dretke v. Haley, 124 S.Ct. 385 (U.S. Oct 14, 2003) (No ). 102 Haley, 306 F.3d at Id. at F.2d 951, 959 (5th Cir. 1992) F.3d 410, 413 (5th Cir. 1995). 106 See id. at 264 (noting that the Fifth Circuit had assumed in Smith and Sones that the actual innocence exception was available in a non-capital sentencing context ) but had not yet specifically addressed the issue). 107 See id. at 264 (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)) (stressing that the purpose of the exception is grounded in the equitable discretion of the federal habeas courts to prevent the incarceration of innocent people ). 108 Id. at

19 those non-capital cases where a career offender challenge was at stake. 109 The court subsequently denied a petition for rehearing en banc. 110 Six judges dissented and wrote an opinion that stressed the need for full consideration of the issue. 111 The Haley dissent pointed out conflicting language in Sawyer. 112 On the one hand, the dissent recognized that language cited by the Eight and Tenth Circuits did seem to foreclose the extension of the exception to noncapital sentencing. 113 On the other hand, the dissent pointed to two instances where the Supreme Court had specified that it was working in the context of capital sentencing as indicative of its willingness to extend the exception. 114 The first was in Sawyer, where the Court stated that [i]n Smith [v. Murray], [it] found no miscarriage of justice in the failure to examine the merits of procedurally defaulted claims in the capital sentencing context. 115 The second, also in Sawyer, was where the Court stated that [t]he present case requires us to further amplify the meaning of actual innocence in the setting of capital punishment. 116 The dissent posited that the Court added the qualifying phrases because it saw the possibility for the exception to be used in a noncapital sentencing context See id. at 264 (failing to explain why it chose to align itself with the Fourth Circuit s restrictive view that the exception applies to non-capital cases only in the context of habitual offender statutes) F.3d 569 (5th Cir. 2003). 111 Id. at ( Smith, J., dissenting). 112 Id. at ( Smith, J., dissenting). 113 See supra notes and accompanying text for a discussion of the relevant language in Sawyer. 114 Haley, 325 F.3d 569 at 572 (Smith, J., dissenting). 115 Id. (Smith, J., dissenting) (quoting Sawyer, 505 U.S. at 339). 116 Id. (Smith, J., dissenting) (quoting Sawyer, 505 U.S. at 340). 117 Id. at 572 (Smith, J., dissenting) (suggesting that, arguably, the Supreme Court would not have added the qualifying phrases in the capital sentencing context or in the setting of capital punishment had it meant for the exception to extend only to capital sentences). 19

20 C. The actual innocence exception applies to non-capital sentencing Substance over form is the approach taken by the Second Circuit, which alone has held that the actual innocence exception extends to all non-capital cases. 118 In Spence v. Superintendent, the court stressed that the Supreme Court held that the availability of the actual innocence exception depends on whether the asserted constitutional error undermined the accuracy of the sentencing determination, and not the nature of the penalty imposed. 119 Applying the actual innocence exception to non-capital cases makes sense in light of what the court called the critical function of habeas review correcting a fundamentally unjust incarceration. 120 Finally, Spence pointed out that since the nature of the sentence has no effect on either the habeas analysis or the issue of whether the sentence is just, there is no reason to restrict the exception to only capital sentencing. 121 In September 1992, Donovan Spence, standing before a New York trial judge, was given the chance to avoid incarceration for a robbery charge to which he had pled guilty, and instead receive youthful offender treatment. 122 There was one condition that Spence stay out of trouble for two months. 123 Failure to do so would mean a revocation of the judge s offer and a sentence of eight and one-third to 25 years See Spence v. Superintendent, 219 F.3d 162 (2d. Cir. 2000) (emphasizing the function of habeas review in correcting unjust incarcerations). 119 Id. at (citing Smith v. Murray, 477 U.S. 527, (1986)). 120 Id. (citing Schlup v. Delo, 513 U.S. 298, (1992)). 121 Id. 122 Id. at Id. 124 Id. at

21 Spence was re-arrested within the two months and charged with another robbery. 125 Before waiting to find out whether the arrest was legitimate, the court found that Spence had broken his promise and sentenced him accordingly. 126 However, he was later acquitted of the rearrest charge at trial. 127 Although Spence had been acquitted of that robbery, the heavier sentence was imposed before the charge was adjudicated. 128 While Sawyer had set a high bar for the actual innocence exception in sentencing, the Second Circuit found that the petitioner had reached it. 129 As required by the Supreme Court, there must be clear and convincing evidence that, but for a constitutional error, no reasonable 125 Spence, 219 F.3d at Id. 127 Id. at Id. at (noting how since Spence was acquitted of the second robbery, he was in essence serving a sentence for which he had not qualified). 129 Id. at 172 (holding that, based on the evidence of Spence s guilt of the second robbery, no reasonable factfinder could have found Spence guilty). In Spence, the Second Circuit transported this standard of proof into the noncapital arena so that the standard was clear and convincing evidence that no reasonable factfinder would have found the petitioner guilty of the act on which his harsher sentence was based. Spence, 219 F.3d at 172. At first glance, the result makes it appear that the Second Circuit has conflated factual and legal innocence, that is, that the court was equating the acquittal with actual innocence. But Spence was not just using the petitioner s acquittal of the second charge to find him actually innocent. Id. For his actual innocence, the Second Circuit points to his acquittal at trial as well as his denial to the grand jury of the second crime, his alibi witnesses, the fact that one of the two victims could not identify him in a lineup, the unreliability of the other witness, and the fact that the arresting officer knew of his promise to the judge. Id. The totality of this evidence led to the conclusion that no reasonable factfinder could have found Spence guilty of the acts underlying his harsher sentence. Id. The issue that ultimately concerns this Comment is whether the defendant would have access to the actual innocence exception, since he was challenging the grounds for a non-capital sentence, and not whether it was correctly applied in his case. 21

22 juror would have found the petitioner eligible for the death penalty. 130 Replacing death penalty with harsher sentence the court found that Spence had met this standard and was actually innocent of the prison term he was serving. 131 The Third Circuit faced an opportunity to apply the actual innocence exception to noncapital sentencing in Cristin v. Brennan, but ultimately skirted the issue. 132 The court had not previously addressed the issue directly, but had assumed arguendo in Glass v. Vaughn that the actual innocence exception could extend to the degree of guilt determination. 133 Since a lesser degree of guilt necessarily denotes a lesser sentence, Cristin noted that its use of the actual innocence exception in Glass could be analogous to an application of the exception to noncapital sentencing. 134 III. Discussion The federal circuits are treating capital and non-capital cases differently with respect to actual innocence jurisprudence. 135 This is inconsistent with the principle that the death penalty 130 Id. at 172 (citing language from Sawyer, 505 U.S. at 337). 131 Id. at 172 (concluding that no reasonable factfinder could have found that Spence committed a crime in violation of his plea agreement that would have made him eligible for the prison sentence). 132 See Cristin v. Brennan, 281 F.3d 404, (3d Cir. 2002) (summarizing the other circuits treatment of the issue but retreating from making a decision on the basis that the petitioner was not actually arguing that he was innocent of his sentence but was instead claiming to be innocent of the crime). 133 See Glass v. Vaughn, 65 F.3d 13, 16 (3d Cir. 1995) (considering whether the petitioner was actually innocent of first degree murder and instead guilty of third degree murder). 134 See Cristin, 281 F.3d at 421 n.17 (noting that being actually innocent of a degree of guilt was arguably analogous to being actually innocent of the sentence). 135 Compare Spence v. Superintendent, 219 F.3d 162 (2d Cir. 2000) (holding that the actual innocence exception applies to non-capital sentencing with United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (holding that one cannot be actually innocent of a non-capital sentence). 22

23 does not mandate a higher standard of review for federal habeas corpus. 136 After Smith recognized that the exception applies to capital sentencing, Sawyer set the standard of proof. 137 Whether language in these two Supreme Court opinions reveals a contemplation of applying the exception to non-capital sentencing is not the definitive inquiry. 138 Instead, other factors support that view that the actual innocence exception applies to non-capital sentencing. 139 A. Did Smith and Sawyer foreclose an extension of the actual innocence exception to non-capital cases? Courts have generally focused on a few relevant sentences from Sawyer in deciding whether it contemplated non-capital sentencing. 140 While discussing the concept of actual innocence, the Supreme Court asserted that in the non-capital context, the concept of actual innocence is easy to grasp, and that the Court must strive to construct an analog to the simpler situation represented by the case of a non-capital defendant. 141 This implies that what the 136 See, e.g. Herrera v. Collins, 506 U.S. 390, 405 (1993) (rejecting petitioner s contention that his case is different because he has been sentenced to death); Murray v. Giarratano, 492 U.S. 1, 9 (1989) (plurality opinion) (insisting that a death sentence does not require a different standard of review on federal habeas corpus); Sticha, supra note 13 at 1648 n.74 (suggesting that the application of the actual innocence exception to capital cases only does not make sense in light of the notion that capital and non-capital cases do not warrant different standards of review). 137 See Smith v. Murray, 477 U.S. 527, (1986) (applying the actual innocence exception to capital sentencing); Sawyer v. Whitley, 505 U.S. 333 (1992) (defining the standard of proof as clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty). 138 See infra Part III.A for a discussion of the ambiguity of whether language in Smith and Sawyer contemplated non-capital sentencing. 139 See infra Parts III.B and C for a discussion of the policy behind why the actual innocence exception should apply to non-capital sentencing. 140 See supra notes and accompanying text for an overview of the relevant Sawyer language. 141 Sawyer, 505 U.S. at

24 Court had in mind in the context of non-capital cases was only the guilt stage. 142 On the other hand, the Court implied in Smith that the actual innocence exception does apply to non-capital sentencing. 143 First, Smith rejected the idea that a capital case should command a lower threshold for overcoming procedural default. 144 Smith instead suggested that capital and non-capital cases are on equal footing with regard to procedural default jurisprudence. 145 Second, Smith discussed applying procedural default rules in the context of a guilt or sentencing determination, implying that the death sentence is not the only sentence to which the principle of default and therefore its exception, actual innocence, applies. 146 Smith and Sawyer thus do not clearly indicate either way an opinion about the exception s applicability to non-capital sentencing. B. Courts have been missing the bigger picture when interpreting Sawyer Focusing on the text surrounding the discussion of the actual innocence exception in Sawyer and Smith ignores the bigger picture. The Supreme Court s chief concern was that the actual innocence exception center on objective factors and not be a simple substitute for cause. 147 In Sawyer, the Court was focused on keeping the actual innocence exception from 142 See supra notes for a discussion of the relevant Sawyer language. 143 See Sticha, supra note 13 at 1635 (discussing how Smith may have implied that the actual innocence exception applies to non-capital sentencing). 144 Smith, 477 U.S. at 538; see Sticha, supra note 13 at 1635 (noting Smith s refusal to distinguish between capital and non-capital cases for procedural default test). 145 See id. (rejecting the suggestion that miscarriage of justice principle applies differently depending on the nature of the penalty the State imposes). 146 Id. at See Sawyer, 505 U.S. at (explaining that the actual innocence exception be narrow by focusing on review of objective factors like aggravating circumstances). 24