by Stephen Fox, Associate Member, University of Cincinnati Law Review Vol. 91
Habeas corpus directly translates from Latin to “you have the body.”1Habeas Corpus, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/habeas_corpus [https://perma.cc/9N5P-VEPE]. Habeas corpus is predominantly used in the criminal justice system as a post-conviction remedy, where individuals may file a petition for a writ of habeas corpus when the petitioner believes they are being illegally held and requesting release.2Id. Habeas petitions are civil actions against a state agent holding the petitioner in custody.3Id. These petitions are reviewed by federal courts to determine whether the custody is lawful.4Id. These petitions are not bound by traditional means of res judicata,5Res judicata refers to the principle that causes of action cannot be relitigated once it receives judgement on its merits. See Res Judicata, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/res_judicata [https://perma.cc/S7TX-NWNC]. allowing courts to review claims that would normally be procedurally barred, but only if the petitioner can provide new evidence of actual innocence in their subsequent filings.6Schlup v. Delo, 513 U.S. 298, 327 (1995). However, circuits are currently split on the requirements of what constitutes new evidence.7Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005); see also Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003).
This article explores the current circuit split. Part II provides a brief description of habeas corpus and a procedural path to bypass the “cause and prejudice” requirement by providing evidence of actual innocence, as laid out in Schlup v. Delo.8Schlup, 513 U.S at 322. Next, the article explains a circuit split between the Seventh and Eighth Circuits regarding what constitutes new evidence in this context. Lastly, Part III argues that the Seventh Circuit’s less stringent requirements more closely align with Supreme Court precedent.
To set the framework for a discussion on the current circuit split, Section A will first provide a brief overview of federal habeas law. Next, Section B explains the Supreme Court precedent for analyzing new evidence in actual innocence claims. Finally, Section C illustrates two cases to highlight the differing approaches between the Eighth and Seventh Circuits for defining “new” evidence.
A. Habeas Corpus: A Brief Description
28 U.S.C. § 2254 grants state prisoners the right to file an application for writ of habeas corpus in federal court when they believe their custody violates the U.S. Constitution or federal law.928 U.S.C. § 2254. However, the prisoner must have first exhausted all state remedies before filing, or their state must lack a proper process to correct the constitutional wrongdoing.10Id. Federal courts may only grant the writ of habeas corpus when a state court decision unreasonably applied or is contrary to federal law, or when the decision “was based on an unreasonable determination of the facts in light of the evidence.”11Id. § 2254(d).
When filing federal habeas petitions, petitioners often find their claims are procedurally barred due to the complexity of habeas law.12Schlup, 513 U.S. at 315. For example, a petitioner who does not raise an ineffective assistance of counsel claim in state court may not then raise the claim in a federal habeas petition.13Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005). Additionally, individuals are barred from bringing a second habeas petition alleging new evidence on a constitutional claim when they failed to supply that evidence in their initial petition.14Schlup, 513 U.S. at 314.
However, in 1995 the Supreme Court formally recognized a bypass for prisoners who find themselves facing procedural roadblocks.15Id. at 315. The Court held that petitions for writs of habeas corpus that would otherwise be procedurally barred may still be reviewed if the petitioner can show actual prejudice from a violation of federal law.16Osborne, 411 F.3d at 919. Or, if the petitioner is unable to show prejudice, their claim may still be reviewed if their case implicates a fundamental miscarriage of justice, which is satisfied if the petitioner provides new evidence of actual innocence.17Schlup, 513 U.S. at 315.
B. Schlup v. Delo: A Procedural Bypass
In Schlup v. Delo, the defendant Lloyd Schlup, was charged with stabbing another inmate, Arthur Dade, at the Missouri State Penitentiary.18Id. at 302. At trial, the State’s main evidence was the testimony of two prison guards, who allegedly witnessed Schlup jump on Dade’s back as he was attacked and killed by two other inmates.19Id. After deliberating, the jury returned a guilty verdict and Schlup was subsequently sentenced to death.20Id.
After trial, and after exhausting all his available state post-conviction remedies, Schlup filed a pro se petition21A pro se petition is one filed by the litigant without legal counsel. Pro Se, Cornell L. Sch. Legal Info. Inst. https://www.law.cornell.edu/wex/pro_se [https://perma.cc/A9D6-NHXT]. for writ of habeas corpus, claiming his trial counsel provided ineffective assistance in violation of the constitution.22Schlup, 513 at 306. The federal district court denied relief, and the appellate court affirmed.23Id. Schlup later hired new counsel, and filed a second habeas petition, this time including claims of actual innocence and ineffective assistance of counsel.24Id. at 307. However, Schlup’s second habeas petition faced procedural obstacles.25Id. at 314. Schlup wished to present new evidence in the form of affidavits and witness interviews from other prisoners explaining that Schlup was misidentified by the guards.26Id. at 308-09. However, Supreme Court precedent dictated that district courts may only review subsequent habeas petitions if the petitioner can establish “cause and prejudice” to show why they did not raise the current issues in their previous claims.27Id. at 318 (citing Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). Schlup was unable to establish “cause and prejudice,” and his claim would have been barred, if not for the narrow “fundamental miscarriage of justice” exception.28Id. at 315. One method which a petitioner may satisfy this miscarriage of justice exception is through providing evidence of actual innocence.29Id. The Court rationalized this procedural bypass by noting that habeas corpus is intended to be an equitable remedy, not strictly bound by the rules of res judicata.30Id. at 319.
To sufficiently provide evidence of actual innocence for the “fundamental miscarriage of justice exception,” the Court determined that the petitioner must satisfy the requirements of the Carrier standard.31Id. at 326-27. Under this standard, the petitioner must show a “constitutional violation has probably resulted in the conviction of one who is innocent.”32Id. (Quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). To surpass the “probably” threshold, the petitioner must establish that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”33Id. The Supreme Court’s decision to analyze these actual innocence claims under the Carrier standard enables a wider range of habeas petitions to be reviewed, but has also led circuit courts to interpret their own definition of new evidence.34Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005); see also Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003).
C. The Circuit Split
Circuits are currently split over what exactly is considered “new” evidence under the Schlup ruling.35Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006). The Eighth Circuit asserts that “new” evidence must have not been “available at trial and could not have been discovered earlier through the exercise of due diligence.”36Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997). In contrast, the Seventh Circuit merely requires that the “new evidence is reliable and was not presented at trial.”37Gomez, 350 F.3d at 679. The Eighth Circuit’s interpretation creates a higher bar for petitioners to surpass, leaving state prisoners in its jurisdiction at a constitutional disadvantage compared to the Seventh Circuit.38Osborne, 411 F.3d at 920; see also Gomez, 350 F.3d at 679.
1. Eighth Circuit’s “New” Evidence Requirements
The Eighth Circuit has denied review of habeas petitions where the new evidence supplied by the petitioner could have been discovered earlier if diligently pursued.39Osborne, 411 F.3d at 920. In Osborne v. Purkett, Robert Osborne was convicted of rape after a jury trial in state court.40Id. at 913. The jury reached their conclusion after hearing testimony from the victim, which identified Osborne as the perpetrator, and findings of a forensic examiner, who after performing an examination, determined that the victim had sexual intercourse.41Id. at 914.
After exhausting appeals in state court, Osborne petitioned for a writ of habeas corpus, alleging four separate claims.42Id. at 915. In one claim, Osborne argued that his trial attorney was ineffective because they did not investigate other circumstances that would lead to the medical examiner’s findings.43Id. at 919. The Eight Circuit agreed with Osborne that his counsel may have been ineffective in this regard, because if they had done their due diligence, Osborne’s trial counsel would have discovered that the victim had intercourse with her boyfriend before the medical examination, which could have explained the examiner’s findings.44Id.
However, the Eighth Circuit denied review of the merits of Osborne’s claim because it was procedurally barred.45Id. at 920. The court noted that Osborne failed to raise this specific ineffectiveness claim in the state appellate court, and subsequently was unable to demonstrate actual prejudice, effectively barring his claim for federal review.46Id. at 919. Osborne attempted to bypass this procedural bar by producing new evidence in the form of an affidavit from the victim’s boyfriend stating that the victim had intercourse with her boyfriend before her medical examination.47Id. at 920. The court established that evidence was only “new” if it was “not available at trial and could not have been discovered earlier through the exercise of due diligence.”48Id. (citing Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)). The judges noted that although this information had not been presented before, it was discoverable at the time of trial if Osborne or his attorney had diligently investigated.49Id. Therefore, having failed to produce new evidence of innocence, Osborne’s case was procedurally barred and ineligible for review.50Id.
2. Seventh Circuit’s “New” Evidence Approach
Differentiating from Osborne, the Seventh Circuit elects to view the new evidence standard to simply require that new evidence must not have been presented at trial and must be reliable.51Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2001). In Gomez v. Jaimet, Ariel Gomez was convicted of first-degree murder arising from an incident where Gomez, after arguing with a group of bystanders, shot and killed the victim.52Id. at 675. Gomez filed a habeas petition in federal court alleging ineffective assistance of counsel at the trial level.53Id. at 677. However, similar to Osborne, Gomez failed to properly raise this claim in state court.54Id. In Illinois, where Gomez was convicted, a defendant waives a claim of ineffective assistance on counsel if the defendant does not raise the claim in his motion for a new trial. Since Gomez did not raise the ineffective assistance claim until the state appellate level, the claim was waived on appeal and procedurally barred. Id. To work around this procedural bar, Gomez argued his actual innocence removed the obstacle to his ineffective assistance of counsel claim.55Id. at 678. When viewing the new evidence, statements from Gomez’s co-defendants and Gomez’s own testimony supporting his innocence, the Seventh Circuit noted that the Schlup decision did not identify any strict limits on what constitutes new evidence.56Id. at 679. Rather, the court interpreted Schlup to only require that evidence be reliable and not previously presented at trial.57Id. However, even though Gomez did provide additional testimony from his co-defendants not heard at trial, the Seventh Circuit found that this new evidence was not convincing enough to prove that a reasonable juror would not convict him in light of the unheard testimony.58Id. at 680.
The approach taken by the Seventh Circuit in Gomez properly interprets the Schlup decision and its requirements for new evidence.59Id. at 679. Schlup explicitly states that petitioners may support their actual innocence claim with “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”60Schlup v. Delo, 513 U.S. 298, 324 (1995). The Seventh Circuit correctly reads this phrase and analyzes evidence provided by the petitioner in Gomez under the assumption that it only needed to be newly presented.61Gomez, 350 F.3d at 680. Contrarily, the Eighth Circuit’s standard, requires that evidence be newly discovered.62See Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005). This heightened standard seeks to avoid petitioners taking evidence presented at their initial trial and simply putting a new “spin” on it.63Bannister v. Delo, 100 F.3d 610, 618 (8th Cir. 1996) (citing Bannister v. Delo, 904 F. Supp. 998, 1004 (W.D. Mo. 1995)). However, this fear is unwarranted. Under the Gomez standard of newly presented evidence, courts should be able to easily distinguish between evidence that was not presented at trial and evidence that was previously presented.64Gomez, 350 F.3d at 680. The Seventh Circuit agreed that it did not wish to allow petitioners to “spin” evidence in their habeas petitions, but also saw the newly presented standard would not let petitioners bypass procedural bars by merely portraying evidence from an alternative view.65Id.
The Eighth Circuit’s assertion that new evidence may not have been discoverable earlier is an unnecessary stipulation never stated in Schlup.66Osborne, 411 F.3d at 920. The Eighth Circuit seemingly fails to acknowledge the language used in the Supreme Court decision.67Schlup v. Delo, 513 U.S. 298, 330 (1995). By ignoring the plain language of “newly presented” and incorporating its own, elevated standard that evidence may not have been previously discoverable, the Eighth Circuit fails to consider Supreme Court precedent.68Id. To review writs of habeas corpus petitions under this lens in an injustice to those wrongfully imprisoned.69Osborne, 411 F.3d at 920; see also Gomez, 350 F.3d at 679.
Imprisoning the innocent is one of the greatest injustices seen in our modern government. Federal habeas law only allows a limited range of remedies, without the judicial system furthering those limitations.70See discussion supra Part III. Requiring the wrongfully incarcerated to provide new evidence that is not only newly presented but could not have been previously discovered is a grave disservice.71Id. The proper reading of Schlup allows habeas petitioners to bring newly presented evidence to satisfy the fundamental miscarriage of justice exception.72Id By allowing individuals to bring a broader range of evidence to back their constitutional claims, the justice system promotes equity, and fairness, ensuring those who are wrongfully incarcerated have a higher chance of securing their freedom.73Id.
- 1Habeas Corpus, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/habeas_corpus [https://perma.cc/9N5P-VEPE].
- 5Res judicata refers to the principle that causes of action cannot be relitigated once it receives judgement on its merits. See Res Judicata, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/res_judicata [https://perma.cc/S7TX-NWNC].
- 6Schlup v. Delo, 513 U.S. 298, 327 (1995).
- 7Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005); see also Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003).
- 8Schlup, 513 U.S at 322.
- 928 U.S.C. § 2254.
- 11Id. § 2254(d).
- 12Schlup, 513 U.S. at 315.
- 13Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005).
- 14Schlup, 513 U.S. at 314.
- 15Id. at 315.
- 16Osborne, 411 F.3d at 919.
- 17Schlup, 513 U.S. at 315.
- 18Id. at 302.
- 21A pro se petition is one filed by the litigant without legal counsel. Pro Se, Cornell L. Sch. Legal Info. Inst. https://www.law.cornell.edu/wex/pro_se [https://perma.cc/A9D6-NHXT].
- 22Schlup, 513 at 306.
- 24Id. at 307.
- 25Id. at 314.
- 26Id. at 308-09.
- 27Id. at 318 (citing Wainwright v. Sykes, 433 U.S. 72, 84 (1977)).
- 28Id. at 315.
- 30Id. at 319.
- 31Id. at 326-27.
- 32Id. (Quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
- 34Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005); see also Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003).
- 35Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006).
- 36Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997).
- 37Gomez, 350 F.3d at 679.
- 38Osborne, 411 F.3d at 920; see also Gomez, 350 F.3d at 679.
- 39Osborne, 411 F.3d at 920.
- 40Id. at 913.
- 41Id. at 914.
- 42Id. at 915.
- 43Id. at 919.
- 45Id. at 920.
- 46Id. at 919.
- 47Id. at 920.
- 48Id. (citing Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)).
- 51Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2001).
- 52Id. at 675.
- 53Id. at 677.
- 54Id. In Illinois, where Gomez was convicted, a defendant waives a claim of ineffective assistance on counsel if the defendant does not raise the claim in his motion for a new trial. Since Gomez did not raise the ineffective assistance claim until the state appellate level, the claim was waived on appeal and procedurally barred. Id.
- 55Id. at 678.
- 56Id. at 679.
- 58Id. at 680.
- 59Id. at 679.
- 60Schlup v. Delo, 513 U.S. 298, 324 (1995).
- 61Gomez, 350 F.3d at 680.
- 62See Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005).
- 63Bannister v. Delo, 100 F.3d 610, 618 (8th Cir. 1996) (citing Bannister v. Delo, 904 F. Supp. 998, 1004 (W.D. Mo. 1995)).
- 64Gomez, 350 F.3d at 680.
- 66Osborne, 411 F.3d at 920.
- 67Schlup v. Delo, 513 U.S. 298, 330 (1995).
- 69Osborne, 411 F.3d at 920; see also Gomez, 350 F.3d at 679.
- 70See discussion supra Part III.