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, 495-96 (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, 537-38 (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, 170-71 (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 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.”12 7 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 96-97 (establishing the cause-and-prejudice requirement). 9 See Carrier, 477 U.S. at 495-96 (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, 537-38 (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 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 apply15 and that it does not16, 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, 495-96 (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 1630-35 (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, 494-495 (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 Effective Death Penalty Act (AEDPA).18 This Comment proposes that the actual innocence exception should apply in the non- capital 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. Murray20 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. 20 477 U.S. 527 (1986). 21 505 U.S. 333 (1992). 22 Sykes, 433 U.S. at 97. 23 David A. Dow, The Third Dimension of Death Penalty Jurisprudence, 22 AM. J. CRIM. L. 151, 176 (1994). 4 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.