Oregon State Bar Bulletin — FEBRUARY/MARCH 2004

Actual Innocence
How Supreme Court reforms have
changed states’ conception of justice

By Jeff Bleich

Editor’s note: The author represents Michael Haley before the U.S. Supreme Court in Haley v. Dretke along with his co-counsel Eric Albritton.

This term, the U.S. Supreme Court will consider whether Texas may keep Michael Wayne Haley in prison for a three-strike sentence when everyone agrees that Haley is actually innocent of committing a third strike. The fact that this case presents an open question worthy of Supreme Court review, and one on which the lower courts have been deeply divided, may be as significant as the Court’s decision itself. After decades of complicated habeas reform, Haley reveals that some states and three federal circuit courts have now concluded that innocence is not a good enough reason to release someone from unlawful confinement. As a result, Haley v. Dretke may be more than just a case about the Supreme Court’s highly technical habeas corpus jurisprudence; it may be a case about how the Court’s reforms have changed the states’ very conception of justice.

The State v. Michael Haley
Michael Haley was convicted in 1997 of a crime he actually did commit — stealing a $50 calculator from a Texas Wal-Mart. That crime, in combination with a prior misdemeanor conviction for possessing marijuana, made Haley eligible for up to two years in prison. After convicting Haley of stealing the calculator, however, the State of Texas asked to have Haley sentenced as a 'habitual offender,' contending that Mr. Haley had two other qualifying prior felony convictions and so this would be Haley’s 'third strike.' In fact, Texas was wrong. Haley had only one prior qualifying strike, and was ineligible for a habitual offender sentence. Haley’s court-appointed attorney, who represented him in trial and on direct appeal, however, did not bother to check Haley’s records, and so did not dispute the state’s claim about the two prior strikes. As a result, Michael Haley was sentenced to 16 years in prison as a three-strike offender – an offense for which all now agree he is actually innocent. Haley has now already served six years for a crime with a maximum sentence of two years.

While news accounts of demonstrably innocent people being sentenced to prison or death because of their incompetent counsel are not uncommon in the post-DNA era, those news stories end with the prisoner being released. What distinguishes Haley’s case is that while Texas admits its error, it won’t agree to release him. Instead, Texas argues that because Haley did not catch the state’s error at trial, and cannot show good cause why he and his attorney did not object to the mistake back in 1997, it is now too late; so Haley should remain in prison for the full 16 years. Texas is not alone in this view –- its view has been adopted by at least two federal circuits, and has received the support of the U.S. solicitor general and a handful of state attorneys general. These parties all assert that as a matter of comity, finality and federalism, Texas should be allowed to confine Haley for 14 years more than state law allows because he did not object to Texas’ error at trial.

In its petition to the U.S. Supreme Court, Texas argues that incarcerating a person more than a decade longer than state law allows is not a 'miscarriage of justice.' How Texas came to that conclusion requires going back to the Supreme Court’s own struggles to find a balance between respecting state interests in finality and comity with the constitutional mandate that there be a writ of habeas corpus available for those unjustly confined.

The Court’s Actual Innocence Jurisprudence
For over 40 years, in one way or another, the Supreme Court has discussed the issue of whether, and to what it extent, it should matter to a court conducting federal habeas proceedings whether a state prisoner is 'actually innocent.'

Initially, the 'innocence' debate was never about how much relief to give the obviously innocent, but only what to do about the obviously guilty. Beginning with the Warren Court’s reform of criminal procedure in the 1950s, the number of habeas corpus petitions soon grew substantially, and correspondingly, states complained about the need to deal with the increase in frivolous prisoner claims. To address this, the Court crafted what it called a 'harmless error' exception in habeas cases. Specifically, it held that prisoners who would otherwise be entitled to a writ of habeas corpus because of a constitutional violation in their state court trial, would not receive relief if they were so clearly guilty that the constitutional violation was 'harmless.'

Beginning in the 1960s, some commentators and justices urged that this 'harmless error' idea should be pushed a little further to deal with the crush of petitions by prisoners who were probably guilty anyway. Justice Black, for example, urged that habeas should be reserved only for the type of constitutional claim that 'casts some shadow of doubt on [the prisoner’s] guilt' (Kaufman v. U.S., 393 U.S. 217, 235-36 (1969) (Black J. dissenting)), and so – in his view – it should not apply where the prisoner complained that police obtained genuinely incriminating evidence without a warrant. Judge Henry Friendly suggested going still further, and argued that habeas relief should be available only to those prisoners who could offer a 'colorable claim' of innocence in addition to their constitutional claim. While the Court never adopted either suggestion, these debates caused the Court to focus on the role that 'innocence' should play in habeas reform.

Throughout the 1970s and 1980s, the Court developed new limits on habeas review that effectively barred federal courts from even considering the question of whether a constitutional violation had occurred. Among other things, the Court limited federal review of cases if the prisoner did not comply with a state procedural rule, if the prisoner’s claim was based on a 'new rule' of constitutional law, or if the prisoner was abusing the writ by stringing out his claims or making the same claims over and over again in different petitions. In all of these cases, though, the Court always allowed for some exceptions. In particular, it held courts should still reach the merits of a constitutional claim if failing to do so might result in a 'miscarriage of justice.'

While the Court did not always define precisely what constituted a 'miscarriage of justice,' it made clear in a couple of decisions in the 1990s that, at the very least, confining or executing someone who is actually innocent would seem to qualify. In Schlup v. Delo, 513 U.S. 298 (1994), the Court held that a prisoner was entitled to a hearing on the merits of an otherwise-barred claim if he was able to show that this constitutional violation had 'probably resulted in the conviction of one who is actually innocent.' In that case, Schlup had been convicted of murdering a fellow prisoner, but was later able to show from a prison videotape and contemporaneous prison records that he had been in the cafeteria food line at the time the murder occurred. The Court held that this showing met the standard for showing that he was 'probably' innocent of the crime.

Likewise, the Court recognized that a prisoner may be innocent of eligibility for the death penalty, and that too should be a basis for excusing some bar to review of the merits. Specifically, in Sawyer v. Whitley, 505 U.S. 333 (1992), the Court held that a convicted murderer, who appeared to be innocent of the special factors that made him eligible for the death penalty, was entitled to have a federal court hear the merits of his case if he could make a strong enough showing of innocence. Specifically, he would need to show through 'clear and convincing evidence that but for a constitutional error, no reasonable juror could have found him eligible for the death penalty.'

The only unique issue raised in Haley is whether this idea of 'actual innocence' should extend to sentences other than death. To date, federal courts have split almost evenly on the issue. These decisions, and Texas’ persistence in this case, raise two obvious questions. First, why – in light of Schlup and Sawyer — isn’t confining Michael Haley for 14 extra years not a miscarriage of justice? Second, why – regardless of what the federal law requires — doesn’t the state of Texas simply release Haley now that he has served more than the time prescribed by statute? The answer to both questions is probably the same: to Texas, this case is about who gets to decide what is or is not a miscarriage of justice – and Texas does not think locking Haley up beyond his maximum term is a miscarriage of justice.

Texas argues that the U.S. Constitution does not require federal courts to provide relief for the 'actually innocent.' To the extent that the Supreme Court has already fashioned rules on this issue, those rules can be changed by Congress, and states are otherwise free to develop their own conception of what constitutes a miscarriage of justice. Texas argues that under Schlup and Sawyer, actual innocence applies only in two limited categories: death penalty cases and cases in which a person is actually innocent of the crime. Apart from those situations, the state is entitled to punish a person who has actually committed a crime, and it is up to the state to decide whether mistakenly exceeding the states’ own sentencing laws (or causing a jury to do the same) is a 'miscarriage of justice.' In short, for Texas, keeping Michael Haley in prison for 16 years based on a conviction that carries a maximum sentence of two years is only a 'miscarriage of justice' if Texas thinks it is a miscarriage of justice.

The fact that Texas has decided not to release Haley thus reveals both something about Texas’ idea of justice, and more importantly about the effect that Supreme Court decisions have had on how states define justice. Texas contends that it will keep a prisoner in jail beyond any time that state law authorizes because in its view federal courts lack the power to declare this a miscarriage of justice and correct the error. The standard of review has thus somehow now become the standard of care: as long as a federal court may not review a claim of innocence as a miscarriage of justice, then Texas has not committed a miscarriage of justice.

The stakes in the Haley case are important in part because the irony here is so great. Depending upon what the Court decides, a writ that was designed to eliminate injustice is now more available to a guilty person with a good lawyer who diligently raised constitutional claims at trial than to an innocent person with a bad lawyer who did not raise those same claims. Depending upon what the Court decides, a jurisprudence that was developed to spare states the burden of dealing with claims by obviously guilty prisoners will now be used by states to avoid dealing with claims by obviously innocent prisoners. Depending upon what the Court decides, it may not be a miscarriage of justice to confine a person for 16 years for a crime that carries a maximum sentence of two years. This spring, when the case is decided, we will all find out whether any of that irony has been lost on the Court.

Jeff Bleich is a litigation partner at Munger, Tolles & Olson. He clerked at the U.S. Supreme Court for Chief Justice Rehnquist in 1990, and has taught courses on habeas corpus law at the University of California at Berkeley. His articles on the Supreme Court appear in the Bar Association of San Francisco’s San Francisco Lawyer Magazine as well as in the OSB Bulletin.

© 2004 Jeff Bleich

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