Courts, Prosecutors Use Procedural Tricks to Keep Innocent People in Prison
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The U.S. Supreme Court has agreed to hear, and perhaps clearly decide, whether a state prisoner claiming “actual innocence” when petitioning for a federal writ of habeas corpus must do so with “reasonable diligence.” There has been significant tension in cases rendered by the High Court, as well as among the federal circuit courts, about the manner in which “actual innocence” claims should be handled, especially with respect to the reasonable diligence issue. The Supreme Court now has an excellent opportunity to resolve this judicial tension.
The case now before the Supreme Court originates out of the State of Michigan and arrived at the Court by way of the Sixth Circuit Court of Appeals. A few background facts about the Floyd Perkins case are necessary to understand the rather thorny procedural and constitutional issues the case presents to the High Court. First, Perkins was convicted of a murder that occurred in Flint, Michigan on March 4, 1993. There are a number of undisputed facts about the murder. Perkins, Damarr Jones, and Rodney Henderson attended a house party together on the night of March 4. They left the party together. Later that evening Perkins and Jones arrived at another friend’s house where they played video games. The issue in the dispute is how Henderson was killed between those two points in time. Jones said that as the trio walked down a wooded trail from the first house to the second, Perkins pulled out a knife and stabbed Henderson to death. Perkins said that the trio stopped at a store to buy alcohol and cigarettes; that Jones and Henderson left together while he remained in the store to pay the bill; and that he found Jones standing under a streetlight in bloody clothes.
The police, and ultimately the district attorney, believed Jones’s version of the events. He testified against Perkins who was convicted of killing Henderson. The State’s conviction rested almost exclusively on Jones’s testimony. It was a flimsy case at best. Neither version of the events surrounding Henderson’s murder offered by Jones or Perkins passes the normal test of logic. And that’s what makes the issue before the Supreme Court so critical: Jones’s testimony could be either the plausible truth or a patent lie.
In 1996 Congress passed, and President Bill Clinton signed into law, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) which was codified at 28 U.S.C. § 2244(d)(1)(A). A major underpinning of AEDPA was to not only streamline but virtually eliminate the availability of the federal writ of habeas corpus to state prisoners who do not adhere to the strict procedural requirements governing access to the writ pursuant to 28 U.S.C. § 2254.Even before ADEPA, there were intense procedural obstacles a state prisoner had to mount in order to have a habeas petition heard under§ 2254. For example, a state prisoner who filed a patently frivolous writ, or delayed for years before filing his writ, or filed repeated applications for the writ, or did not follow all the procedural post-conviction rules at the state level (e.g., meeting the deadlines for filing petitions from one state court to another) or did not exhaust all his state remedies before seeking federal habeas relief could have his federal petition summarily dismissed under § 2254. Most often, these kinds of federal habeas petitions were dismissed as being “procedurally defaulted.”
In order to make the death penalty more effective and clear up the backlog of prisoners sitting on state death rows awaiting execution, Congress was determined to make the death penalty machine more efficient, speedier, and final. That’s why it enacted the most critical procedural requirement of AEDPA: that a state prisoner seeking federal habeas review must do so within one year after his state conviction becomes final; and if he fails to do so, he is effectively barred from ever seeking federal habeas relief again.
Floyd Perkins’ conviction became final on May 5, 1997, and thus he had until May 5, 1998 to seek habeas relief under § 2244. For whatever reason, he did not seek federal habeas relief during that inflexible one-year limitation period. For all practical purposes, he became “time barred” from ever filing a federal petition for writ of habeas corpus under § 2254.
But three significant developments occurred before and after Perkins’s conviction became final on May 5, 1997 that calls into question a § 2244 time bar. First, on January 19, 1997, Perkins’s sister, Rhonda Hudson, signed an affidavit in which she swore she had heard Jones brag about stabbing Henderson and taking his clothes to the cleaners after the murder. The record does not indicate why Perkins failed to use this affidavit as a basis for timely seeking federal habeas relief during the one-year limitation grace period.
The second event occurred on March 16, 1999 when Demond Louis, a younger brother of one of Perkins’s friends, signed an affidavit in which he swore that Jones had admitted to him on the night of the murder that he (Jones) killed Henderson; that Jones was wearing orange shoes, orange pants, and a colorful shirt; and that he saw blood on Jones’s pants and shoes.
The third event occurred on July 16, 2002 when Linda Fleming, a dry-cleaning clerk, signed an affidavit in which she swore that a man matching Jones’s description came into the cleaners around the date of the murders asking whether blood stains could be removed from clothing that matched the description of the clothing Louis had described Jones was wearing on the night Henderson was killed.
On June 13, 2008, Perkins filed a petition for a writ of habeas corpus pursuant to § 2254 in the U.S. District Court for the Western District of Michigan. He raised the following issues for relief: sufficiency of evidence, trial procedure, prosecutorial misconduct, jury instruction and ineffective assistance of counsel. While we have no direct evidence of this, we surmise that Perkins waited more than ten years to file his federal habeas petition because he was exhausting one or more of the foregoing issues at the state level. There are times when the exhaustion of remedies at the state level can take years.
In any event, a U.S. Magistrate recommended that Perkins’s petition be denied as time-barred under ADEPA’s one-year statute of limitation. Perkins’s objected to this recommendation. His objection was based ADEPA’s “new evidence” limitation which extends the one-year limitation from “the date on which the factual predicate of the [new evidence] claim or claims presented could have been discovered through the exercise of due diligence.” In other words, the one-year limitation is tolled in cases where “new evidence” has been discovered through due diligence and begins to run anew for one year after discovery of the new evidence. Put simply, Perkins’s filed his federal habeas petition almost five years after the “new evidence” limitation had expired on July 16, 2003—one year after Linda Fleming’s affidavit. To get around this “new evidence” time bar, Perkins suggested that the “new evidence” limitation should be equitably tolled because he is “actually innocent” of murdering Henderson.
Not only did the district judge uphold the magistrate’s time bar recommendation but added that the three affidavits were not the kind of “new evidence” upon which an “actual innocence” claim could be based under §§ 2244 and 2254. Further, the district judge noted that this affidavit-evidence had been substantially available to Perkins before his trial and that it merely reinforced his defense, which the jury had rejected, that Jones had framed him for Henderson’s murder. And to nail down the coffin and snug the “new evidence” away in the ground, the district judge admonished that even if the three affidavits fell within the ambit “actual innocence evidence,” they would be time-barred because Perkins had not pursued them with “reasonable diligence.”
It was that last observation that set up the Supreme Court’s involvement in the case because the district judge relied upon the 2005 decision by the High Court in Pace v. DiGuglielmo which held a petitioner seeking to equitably toll a statute of limitations “must demonstrate” that he has been “diligent” in pursuing his rights. Perkins made a timely request to the Sixth Circuit to appeal the district judge’s denial of his writ application. On February 24, 2010, the appeals court granted Perkins’s request and agreed to hear his appeal.
In its March 1, 2012 decision on Perkins’s appeal, the Sixth Circuit made the preliminary observation significant to Perkins’s claim, and applicable to any state prisoner making an “actual innocence” claim; namely, that AEDPA’s statute of limitation can be equitably tolled only if a state prisoner is “factually innocent,” not whether “there was insufficient evidence to convict him.” The district judge had ruled that Perkins did not make this showing, but his analysis in reaching that conclusion was “limited to two sentences.”
Thus, the Sixth Circuit elected to preclude review of whether Perkins had met the threshold showing that he is “factually innocent.” Instead the appeals court confined its review to the sole issue of whether a state prisoner who makes a “credible showing of actual innocent must also make a showing of reasonable diligence in order to equitably toll ADEPA’s statute of limitations and have [his] claim heard on the merits.”
The Sixth Circuit pointed to a 2006 Supreme Court decision in Day v. McDonough in which the High Court held that statutes of limitation are non-jurisdictional, and as such, do not require courts to dismiss claims as soon as the “clock has run.” The year before Day was decided, the Sixth Circuit in Souter v. Jones held that “where an otherwise time-barred habeas petitioner can demonstrate that it [is] more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying constitutional claims.”
Defined, this means that the “gateway” of an actual innocence claim from §2244 to § 2254 “does not require the granting of the writ, but instead permits the petitioner to present his original habeas petition as [as if] it had not [been] filed it late.”
In effect, the Sixth Circuit held that a state prisoner who makes a credible claim that he is “factually innocent” based on new evidence is entitled to a second bite of the federal habeas apple. The problem is that the Supreme Court, as a rule, has not been as friendly toward state prisoners getting a second bite out of the § 2254 apple. For example, in 2010 the Court in Holland v. Florida confronted a case where a state prisoner, who was sentenced to death, had repeatedly tried to contact his attorney to make sure that his federal habeas petition was timely filed under § 2244 but the attorney failed to timely do so. The attorney’s dereliction did not persuade the lower federal courts to equitably toll the § 2244 one-year limitation and denied the state prisoner’s habeas petition as untimely.
In effect, these courts said an attorney’s unprofessional conduct, standing alone, does not warrant application of the equitable tolling doctrine under § 2244. The Eleventh Circuit held there had to be a showing of bad faith, dishonesty, divided loyalty, or mental impairment against the attorney before such tolling could even be considered. While the Supreme Court held that this position could be “too rigid” and that there should be a presumption in favor of equitable tolling under “extraordinary circumstances,” the court nonetheless elected to side-step the issue of whether the circumstances in the Holland case were, in fact, “extraordinary” enough to preclude the § 2244 time-bar. Instead the High Court kicked the Holland back to the lower courts for an evidentiary determination of whether the attorney had in fact failed to timely file the habeas petition, failed to correctly determine the filing deadline, and failed respond to the inmate’s repeated requests for a timely § 2244 filing.
Thus, Holland turned more on attorney misconduct than on the nature and extent of a § 2244 time bar in actual innocence cases. The Court essentially said is this about tolling provisions: a state prisoner is entitled to equitable tolling of the §2244 statute of limitation only if he shows (1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances prevented him from timely filing his federal habeas petition. In addition to these two prerequisites, a state prisonermust then carry the heavy burden of proving he exercised “reasonable diligence” throughout the state post-conviction process.
The State Attorney in the Perkins case, like many other prosecutors, is apparently not receptive to belated “actual innocence” claims. He saw an opening in Holland to shut down Perkins’s actual innocence claim by having the more tolerant equitable tolling attitude expressed in Souter overturned or least modified. He premised this argument to the Sixth Circuit on two points: 1) the fact that Congress in § 2244 has actually given a state prisoner making an “actual innocence” claim two one-year limitation grace periods—the initial one-year period after the state conviction becomes final and the renewed one-year period following the discovery of new evidence; and 2) that the extraordinary circumstances cited by Holland necessary to trigger equitable tolling must be based on the kind of “new reliable evidence” defined by the Supreme Court in Schlup v. Delo. He reasoned that Holland made Souter bad case law.
The Sixth Circuit was not persuaded. The appeals court pointed out that Holland actually reinforced the Supreme Court’s repeated instructions that non-jurisdictional federal statutes like § 2244 do not preclude equitable tolling, absent a clear command from Congress. Furthermore, the Sixth Circuit said that even if a statute were to suggest that equitable tolling does not apply to its time limitation provisions, this suggestion would not “displace the courts’ equitable authority” to toll because such authority can only be displaced “when it is clear that Congress intended to do so.” The State Attorney’s suggestion that Holland created inference of “congressional intent” simply did not meet the “clearest command” standard that courts lack equitable tolling authority in § 2244 cases. Thus, the appeals court rebuffed the State Attorney’s argument with the following conclusion: “Simply put, nothing in Holland calls our analysis in Souter into question.” The Sixth Circuit sealed shut its conclusion by pointing out that the Ninth, Tenth, and Eleventh circuits have adopted the same conclusion.
It should be noted, however, that our own Fifth Circuit, with its peculiar and oftentimes singular wisdom, held in a post-Holland case (Henderson v. Thaler) that claims of actual innocence is not per se an “exception” to AEDPA’s statute of limitations warranting equitable tolling. But there was a dim light at the end of the tunnel: Henderson dealt with a claim of factual innocence from the death penalty, not a claim of total factual innocence from a state conviction: the issue was whether Henderson had established with “clear and convincing” evidence that he is mentally retarded and, thus, not subject to the death penalty. Put simply, a mentally retarded person is “factually innocent” of the death penalty.
And, more importantly, the Fifth Circuit did not analyze Henderson under Holland’s cautionary instructions against the lower court finding that “actual innocence” claims can never be equitably tolled, especially when there are “extraordinary circumstances” warranting such tolling. Instead the Fifth Circuit confined its restricted equitable tolling analysis to its own 2000 decision in Felder v. Johnson which held there is no per se “actual innocence” exception to § 2244; that a “claim” rather than a “showing” of actual is not a rare and extraordinary circumstance warranting equitable tolling. Thus, the Felder court did not categorically hold that “credible actual innocence claims” may never be equitably tolled under § 2244, but may be considered when there is a real “credible” showing of actual innocence from a criminal conviction itself.
This explains why the Fifth Circuit remanded the Henderson case to the district court for a determination of whether there was “clear and convincing” evidence of Henderson’s mental retardation, and if so, whether such a determination (factual innocence of the death penalty, meaning he was not eligible for the death punishment) meets the “extraordinary circumstances” expressed in Holland.
Thus, it is abundantly clear that Holland’s prerequisites for equitable tolling (“extraordinary circumstances”) run against the grain of a series of other Supreme Court cases which held that a “procedural default” can be overcome with a “credible claim of actual innocence”: House v. Bell, In re Davis, and Dretke v. Haley. Therein, as the Sixth Circuit so clearly pointed out in Perkins, lies the tension in Supreme Court habeas jurisprudence between the Schlup-type cases (“credible” claims) and Holland (“extraordinary circumstances”) which, in turn, creates conflict among the circuits as exampled by the Sixth Circuit’s Souter and the Fifth Circuit’s Henderson cases
The State Attorney in the Perkins case is essentially asking the Supreme Court to follow the more restrictive Holland decision which is unfriendly to actual innocence claims. Clearly, if the circuit courts cannot understand the tension created by Holland and Schlup, forcing them to craft their own “actual innocence claims” jurisprudence, then it long past time for the Supreme Court to resolve this issue: when, how, and under what circumstances can an “actual innocence” claim be made without statutory inference from § 2244. And exactly what role does “reasonable diligence” play in determining how actual innocence claims should be resolved. There is no way to measure how many innocent people are in state prisons today—worst yet, how many have been executed—because the Supreme Court has failed miserably to clearly and concisely spell out binding “actual innocence” jurisprudence.
Of course, we agree with the Sixth Circuit’s more receptive Souter reasoning than the Fifth Circuit’s more restrictive Henderson reasoning. While we understand the Supreme Court’s reluctance to create a federal habeas review process that would permit re-litigating the issue of guilt/innocence in state cases, we strongly feel that the federal district courts have the evidentiary means to separate the wheat from the chaff in actual innocence claims. Federal courts should not have a statutory command to casually time-bar actual innocence cases solely because a state prisoner did not act with “reasonable diligence” to discover reliable evidence of innocence.
Given our Country’s strong belief and reliance on justice and the rule of law, there should be no procedural bars to claims of actual innocence. Innocent people should not be in prison, regardless of the strain this might place on the courts.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization