Posted by Orin Kerr:
New Way to Resolve Actual Innocence Claims in Capital Cases?:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250531700
Today the Supreme Court took a step I don't think I have ever seen
before: When faced with an actual innocence claim in a capital case
that was filed as a result or an original habeas corpus case, the
court [1]transferred the case to the relevant district court and order
the trial court to figure out the merits:
The petition for a writ of habeas corpus is transferred to the
United States District Court for the Southern District of Georgia
for hearing and determination. The District Court should receive
testimony and make findings of fact as to whether evidence that
could not have been obtained at the time of trial clearly
establishes petitioner�s innocence. JUSTICE SOTOMAYOR took no part
in the constion or decision of these motions and this petition.
Justice Scalia and Thomas [2]dissented. The dissent begins:
Today this Court takes the extraordinary step�one not taken in
nearly 50 years�of instructing a district court to adjudicate a
state prisoner�s petition for an original writ of habeas corpus.
The Court proceeds down this path even though every judicial and
executive body that has examined petitioner�s stale claim of
innocence has been unpersuaded, and (to make matters worst) even
though it would be impossible for the District Court to grant any
relief. Far from demonstrating, as this Court�s Rule 20.4(a)
requires, �exceptional circumstances� that �warrant the exercise of
the Court�s discretionary powers,� petitioner�s claim is a sure
loser. Transferring his petition to the District Court is a
confusing exercise that can serve no purpose except to delay the
State�s execution of its lawful criminal judgment. I respectfully
dissent.
Justice Stevens, joined by Breyer and Ginsburg, respond to Scalia and
Thomas in a concurring opinion:
The substantial risk of putting an innocent man to death clearly
provides an adequate justification for holding an evidentiary
hearing. Simply put, the case is sufficiently �exceptional� to
warrant utilization of this Court�s Rule 20.4(a), 28 U. S. C.
§2241(b), and our original habeas jurisdiction. See Byrnes v.
Walker, 371 U. S. 937 (1962); Chaapel v. Cochran, 369 U. S. 869
(1962).
Over at [3]Crime & Consequences, Kent Scheidegger offers some
perspective. It's worth reading the whole thing, but here is a taste:
And now, for something completely different...
The U.S. Supreme Court and its individual Justices have the
jurisdiction to issue "original" writs of habeas corpus --
"original" in the sense that the petitioner applies directly to the
Supreme Court for relief, as opposed to applying to a lower court
and then appealing the denial.
It was settled early, in a case related to the Aaron Burr plot,
that the Supreme Court can issue such writs despite the Marbury
limitation if the writ is appellate in practice even though
original in form. That is, if the petitioner seeks a de facto
review of a decision of a court, as opposed to the unilateral
decision of the executive to lock him up, then he doesn't have to
fit within the very limited category of cases where the
Constitution gives the Court original jurisdiction.
The Court used this jurisdiction in the nineteenth century to
review cases it had no other way to review, but the power pretty
much gathered dust in the twentieth century and, until today, in
the twenty-first. Term after term, every Monday orders list has had
one-liner denials of original habeas petitions.
Only once in the time I have been doing Supreme Court work (since
1987) has the Court seriously considered an original habeas
petition and written an opinion. That was in Felker v. Turpin, 518
U.S. 651 (1996), the first case on the constitutionality of the
then-brand-new Antiterrorism and Effective Death Penalty Act of
1996. The Court did not resolve whether original writs in the
Supreme Court would be subject to the same restrictions Congress
placed on the usual district-court application, but it said it
would be guided by them nonetheless. It denied Felker's petition,
and he was executed shortly thereafter.
Another issue the Court has never resolved is whether a
free-standing claim of actual innocence, unconnected to any
constitutional violation at the trial, states a claim for relief in
federal habeas corpus. The Court considered the question in Herrera
v. Collins, 506 U.S. 390 (1993), but once it took a good, hard look
at the facts, it realized that Herrera's innocence claim was such
complete garbage that it would have been denied under any
conceivable standard.
And now comes Troy Davis.
It's interesting to note that eight Justices were on this, and two
voiced a dissent. I wonder if the three liberal Justices who were on
the case persuaded Kennedy to join them, setting up an awkward 4-4
showdown. If the court had split evenly, that would have set up an
interesting question: What happens when a petitioner files an original
case in the Supreme Court and the Court divides evenly? It's not like
there is a lower court to affirm. Roberts and Alito went along,
though, making this a 6-2 vote in favor of the transfer.
References
1.
http://www.scotusblog.com/wp/wp-content/uploads/2009/08/court-order-Davis.pdf
2.
http://www.scotusblog.com/wp/wp-content/uploads/2009/08/Scalia-opin-Davis.pdf
3.
http://www.crimeandconsequences.com/crimblog/2009/08/the-davis-original-habeas-peti.html
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