No.
91-7328
Chief
Justice Rehnquist delivered the
opinion of the Court.
Petitioner
Leonel Torres Herrera was convicted of capital
murder and sentenced to death in January 1982.
He unsuccessfully challenged the conviction on
direct appeal and state collateral proceedings
in the Texas state courts, and in a federal
habeas petition. In February 1992--10 years
after his conviction--he urged in a second
federal habeas petition that he was "actually
innocent" of the murder for which he was
sentenced to death, and that the Eighth
Amendment's prohibition against cruel and
unusual punishment and the Fourteenth
Amendment's guarantee of due process of law
therefore forbid his execution. He supported
this claim with affidavits tending to show that
his now dead brother, rather than he, had been
the perpetrator of the crime. Petitioner urges
us to hold that this showing of innocence
entitles him to relief in this federal habeas
proceeding. We hold that it does not.
Shortly
before 11 p.m. on an evening in late September
1981, the body of Texas Department of Public
Safety Officer David Rucker was found by a
passerby on a stretch of highway about six miles
east of Los Fresnos,
Texas, a few
miles north of Brownsville in the Rio Grande
Valley. Rucker's body was lying beside his
patrol car. He had been shot in the head.
At about the
same time, Los Fresnos Police Officer Enrique
Carrisalez observed a speeding vehicle traveling
west towards Los Fresnos, away from the place
where Rucker's body had been found, along the
same road. Carrisalez, who was accompanied in
his patrol car by Enrique Hernandez, turned on
his flashing red lights and pursued the speeding
vehicle. After the car had stopped briefly at a
red light, it signaled that it would pull over
and did so. The patrol car pulled up behind it.
Carrisalez took a flashlight and walked toward
the car of the speeder. The driver opened his
door and exchanged a few words with Carrisalez
before firing at least one shot at Carrisalez'
chest. The officer died nine days later.
Petitioner
Herrera was arrested a few days after the
shootings and charged with the capital murder of
both Carrisalez and Rucker. He was tried and
found guilty of the capital murder of Carrisalez
in January 1982, and sentenced to death. In July
1982, petitioner pleaded guilty to the murder of
Rucker.
At
petitioner's trial for the murder of Carrisalez,
Hernandez, who had witnessed Carrisalez' slaying
from the officer's patrol car, identified
petitioner as the person who had wielded the gun.
A declaration by Officer Carrisalez to the same
effect, made while he was in the hospital, was
also admitted. Through a license plate check, it
was shown that the speeding car involved in
Carrisalez' murder was registered to
petitioner's "live in" girlfriend. Petitioner
was known to drive this car, and he had a set of
keys to the car in his pants pocket when he was
arrested. Hernandez identified the car as the
vehicle from which the murderer had emerged to
fire the fatal shot. He also testified that
there had been only one person in the car that
night.
The evidence
showed that Herrera's Social Security card had
been found alongside Rucker's patrol car on the
night he was killed. Splatters of blood on the
car identified as the vehicle involved in the
shootings, and on petitioner's blue jeans and
wallet were identified as type A blood--the same
type which Rucker had. (Herrera has type O blood.)
Similar evidence with respect to strands of hair
found in the car indicated that the hair was
Rucker's and not Herrera's. A handwritten letter
was also found on the person of petitioner when
he was arrested, which strongly implied that he
had killed Ru cker.
[n.1]
Petitioner
appealed his conviction and sentence, arguing,
among other things, that Hernandez' and
Carrisalez' identifications were unreliable and
improperly admitted. The Texas Court of Criminal
Appeals affirmed, Herrera v. State,
682 S. W. 2d 313 (1984), and we denied
certiorari, 471 U.S. 1131 (1985). Petitioner's
application for state habeas relief was denied.
Ex parte Herrera,No. 12,848-02 (Tex. Crim.
App., Aug. 2, 1985). Petitioner then filed a
federal habeas petition, again challenging the
identifications offered against him at trial.
This petition was denied, see 904 F. 2d 944
(CA5), and we again denied certiorari. 498 U.S.
925 (1990).
Petitioner
next returned to state court and filed a second
habeas petition, raising, among other things, a
claim of "actual innocence" based on newly
discovered evidence. In support of this claim
petitioner presented the affidavits of Hector
Villarreal, an attorney who had represented
petitioner's brother, Raul Herrera, Sr., and of
Juan Franco Palacious, one of Raul Sr.'s former
cellmates. Both individuals claimed that Raul
Sr., who died in 1984, had told them that he--and
not petitioner--had killed Officers Rucker and
Carrisalez.
[n.2] The
State District Courtdenied this application,
finding that "no evidence at trial remotely
suggest[ed] that anyone other than [petitioner]
committed the offense." Ex parte Herrera,
No. 81-CR 672-C (Tex. 197th Jud. Dist., Jan. 14,
1991), ¶35. The Texas Court of Criminal Appeals
affirmed, Ex parte Herrera, 819 S. W. 2d
528 (1991), and we denied certiorari, Herrera
v. Texas, 502 U.S. ___ (1992).
In February
1992, petitioner lodged the instant habeas
petition--his second--in federal court, alleging,
among other things, that he is innocent of the
murders of Rucker and Carrisalez, and that his
execution would thus violate the Eighth and
Fourteenth Amendments. In addition to proffering
the above affidavits, petitioner presented the
affidavits of Raul Herrera, Jr., Raul Sr.'s son,
and Jose Ybarra, Jr., a schoolmate of the
Herrera brothers. Raul Jr. averred that he had
witnessed his father shoot Officers Rucker and
Carrisalez and petitioner was not present. Raul
Jr. was nine years old at the time of the
killings. Ybarra alleged that Raul Sr. told him
one summer night in 1983 that he had shot the
two police officers.
[n.3]
Petitioner alleged that law enforcement
officials were aware of this evidence, and had
withheld it in violation of Brady v.
Maryland, 373 U.S. 83 (1963).
The District
Court dismissed most of petitioner's claims as
an abuse of the writ. No. M 92-30 (SD Tex. Feb.
17, 1992). However, "in order to ensure that
Petitioner can assert his constitutional claims
and out of a sense of fairness and due process,"
the District Court granted petitioner's request
for a stay of execution so that he could present
his claim of actual innocence, along with the
Raul Jr. and Ybarra affidavits, in state court.
App.38-39. Although it initially dismissed
petitioner's Brady claim on the ground
that petitioner had failed to present "any
evidence of withholding exculpatory material by
the prosecution," App. 37, the District Court
also granted an evidentiary hearing on this
claim after reconsideration, id., at 54.
The Court of
Appeals vacated the stay of execution. 954 F. 2d
1029 (CA5 1992). It agreed with the District
Court's initial conclusion that there was no
evidentiary basis for petitioner's Brady
claim, and found disingenuous petitioner's
attempt to couch his claim of actual innocence
in Brady terms. 954 F. 2d, at 1032.
Absent an accom panying constitutional violation,
the Court of Appeals held that petitioner's
claim of actual innocence was not cognizable
because, under Townsend v. Sain,
372 U.S. 293, 317 (1963), "the existence merely
of newly discovered evidence relevant to the
guilt of a state prisoner is not a ground for
relief on federal habeas corpus." See 954 F. 2d
at 1034.
[n.4] We
granted certiorari, 502 U.S. ___ (1992), and the
Texas Court of Criminal Appeals stayed
petitioner's execution. We now affirm.
Petitioner
asserts that the Eighth and Fourteenth
Amendments to the United States Constitution
prohibit the execution of a person who is
innocent of the crime for which he was convicted.
This proposition has an elemental appeal, as
would the similar proposition that the
Constitution prohibits the imprisonment of one
who is innocent of the crime for which he was
convicted. After all, the central purpose of any
system of criminal justice is to convict the
guilty and free the innocent. See
UnitedStates v. Nobles, 422 U.S. 225,
230 (1975). But the evidence upon which
petitioner's claim of innocence rests was not
produced at his trial, but rather eight years
later. In any system of criminal justice, "innocence"
or "guilt" must be determined in some sort of a
judicial proceeding. Petitioner's showing of
innocence, and indeed his constitutional claim
for relief based upon that showing, must be
evaluated in the light of the previous
proceedings in this case, which have stretched
over a span of 10 years.
A person
when first charged with a crime is entitled to a
presumption of innocence, and may insist that
his guilt be established beyond a reasonable
doubt. In re Winship, 397 U.S. 358
(1970). Other constitutional provisions also
have the effect of ensuring against the risk of
convicting an innocent person. See, e. g.,
Coy v. Iowa, 487 U.S. 1012 (1988)
(right to confront adverse witnesses); Taylor
v. Illinois, 484 U.S. 400 (1988) (right
to compulsory process); Strickland v.
Washington, 466 U.S. 668 (1984) (right to
effective assistance of counsel); Winship,
supra (prosecution must prove guilt
beyond a reasonable doubt); Duncan v.
Louisiana, 391 U.S. 145 (1968) (right to
jury trial); Brady v. Maryland,
373 U.S. 83 (1963) (prosecution must disclose
exculpatory evidence); Gideon v.
Wainwright, 372 U.S. 335 (1963) (right to
assistance of counsel); In re Murchison,
349 U.S. 133, 136 (1955) (right to "fair trial
in a fair tribunal"). In capital cases, we have
required additional protections because of the
nature of the penalty at stake. See, e. g.,
Beck v. Alabama, 447 U.S. 625
(1980) (jury must be given option of convicting
the defendant of a lesser offense). All of these
constitutional safeguards, of course, make it
more difficult for the State to rebut and
finally overturn the presumption of innocence
which attaches to every criminal defendant. But
we have also observed that "[d]ue process does
not require that every conceivable step be taken,
at whatever cost, to eliminate the possibility
of convicting an innocent person." Patterson
v. New York, 432 U.S. 197,208 (1977). To
conclude otherwise would all but paralyze our
system for enforcement of the criminal law.
Once a
defendant has been afforded a fair trial and
convicted of the offense for which he was
charged, the presumption of innocence disappears.
Cf. Ross v. Moffitt, 417 U.S. 600,
610 (1974) ("The purpose of the trial stage from
the State's point of view is to convert a
criminal defendant from a person presumed
innocent to one found guilty beyond a reasonable
doubt"). Here, it is not disputed that the State
met its burden of proving at trial that
petitioner was guilty of the capital murder of
Officer Carrisalez beyond a reasonable doubt.
Thus, in the eyes of the law, petitioner does
not come before the Court as one who is "innocent,"
but on the contrary as one who has been
convicted by due process of law of two brutal
murders.
Based on
affidavits here filed, petitioner claims that
evidence never presented to the trial court
proves him innocent notwithstanding the verdict
reached at his trial. Such a claim is not
cognizable in the state courts of Texas. For to
obtain a new trial based on newly dis covered
evidence, a defendant must file a motion within
30 days after imposition or suspension of
sentence. Tex. Rule App. Proc. 31(a)(1) (1992).
The Texas courts have construed this 30-day time
limit as jurisdictional. See Beathard v.
State, 767 S. W. 2d 423, 433 (Tex. Crim.
App. 1989); Drew v. State, 743 S.
W. 2d 207, 222-223 (Tex. Crim. App. 1987).
Claims of
actual innocence based on newly discovered
evidence have never been held to state a ground
for federal habeas relief absent an independent
constitutional violation occurring in the
underlying state criminal proceeding. Chief
Justice Warren made this clear in Townsend
v. Sain, 372 U.S. 293, 317 (1963) (emphasis
added):
"Where
newly discovered evidence is alleged in a
habeas application, evidence which could
notreasonably have been presented to the
state trier of facts, the federal court must
grant an evidentiary hearing. Of course,
such evidence must bear upon the
constitutionality of the applicant's
detention; the existence merely of newly
discovered evidence relevant to the guilt of
a state prisoner is not a ground for relief
on federal habeas corpus."
This rule is
grounded in the principle that federal habeas
courts sit to ensure that individuals are not
imprisoned in violation of the Constitution--not
to correct errors of fact. See, e. g.,
Moore v. Dempsey, 261 U.S. 86, 87-88
(1923) (Holmes, J.) ("[W]hat we have to deal
with [on habeas review] is not the petitioners'
innocence or guilt but solely the question
whether their constitutional rights have been
preserved"); Hyde v. Shine, 199
U.S. 62, 84 (1905) ("[I]t is well settled that
upon habeas corpus the court will not
weigh the evidence") (emphasis in original);
Ex parte Terry, 128 U.S. 289, 305 (1888)
("As the writ of habeas corpus does not
perform the office of a writ of error or an
appeal, [the facts establishing guilt] cannot be
re examined or reviewed in this collateral
proceeding") (emphasis in original).
More recent
authority construing federal habeas statutes
speaks in a similar vein. "Federal courts are
not forums in which to relitigate state trials."
Barefoot v. Estelle, 463 U.S. 880,
887 (1983). The guilt or innocence determination
in state criminal trials is "a decisive and
portentous event." Wainwright v. Sykes,
433 U.S. 72, 90 (1977). "Society's resources
have been concentrated at that time and place in
order to decide, within the limits of human
fallibility, the question of guilt or innocence
of one of its citizens." Ibid. Few
rulings would be more disruptive of our federal
system than to provide for federal habeas review
of free standing claims of actual innocence.
Our decision
in Jackson v. Virginia, 443 U.S.
307 (1979), comes as close to authorizing
evidentiary review of a state court conviction
on federal habeas as any of ourcases. There, we
held that a federal habeas court may review a
claim that the evidence adduced at a state trial
was not sufficient to convict a criminal
defendant beyond a reasonable doubt. But in so
holding, we emphasized:
"[T]his
inquiry does not require a court to `ask
itself whether it believes that the
evidence at the trial established guilt
beyond a reasonable doubt.' Instead, the
relevant question is whether, after viewing
the evidence in the light most favorable to
the prosecution, any rational trier
of fact could have found the essential
elements of the crime beyond a reasonable
doubt. This familiar standard gives full
play to the responsibility of the trier of
fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts
to ultimate facts." Id., at 318-319 (citations
omitted) (emphasis in original).
We
specifically noted that "the standard announced
. . . does not permit a court to make its own
subjective determination of guilt or innocence."
Id., at 320, n. 13.
The type of
federal habeas review sought by petitioner here
is different in critical respects than that
authorized by Jackson. First, the
Jackson inquiry is aimed at determining
whether there has been an independent
constitutional violation--i.e., a
conviction based on evidence that fails to meet
the Winship standard. Thus, federal
habeas courts act in their historic capacity--to
assure that the habeas petitioner is not being
held in violation of his or her federal
constitutional rights. Second, the sufficiency
of the evidence review authorized by Jackson
is limited to "record evidence." 443 U. S., at
318. Jackson does not extend to nonrecord
evidence, including newly discovered evidence.
Finally, the Jackson inquiry does not
focus on whether the trier of fact made the
correct guilt or innocence determination,
but rather whether it made a rational
decision to convict or acquit.
Petitioner
is understandably imprecise in describing the
sort of federal relief to which a suitable
showing of actual innocence would entitle him.
In his brief he states that the federal habeas
court should have "an important initial
opportunity to hear the evidence and resolve the
merits of Petitioner's claim." Brief for
Petitioner 42. Acceptance of this view would
presumably require the habeas court to hear
testimony from the witnesses who testified at
trial as well as those who made the statements
in the affidavits which petitioner has presented,
and to determine anew whether or not petitioner
is guilty of the murder of Officer Carrisalez.
Indeed, the dissent's approach differs little
from that hypothesized here.
The dissent
would place the burden on petitioner to show
that he is "probably" innocent. Post, at
14-15. Although petitioner would not be entitled
to discovery "as a matter of right," the
District Court would retain its "discretion to
order discovery . . . when it would help the
court make a reliable determination with respect
to the prisoner's claim." Post, at 16.
And although the District Court would not be
required to hear testimony from the witnesses
who testified at trial or the affiants upon whom
petitioner relies, it would allow the District
Court to do so "if the petition warrants a
hearing." Post, at 16. At the end of the
day, the dissent would have the District Court "make
a case by case determination about the
reliability of newly discovered evidence under
the circumstances," and then "weigh the evidence
in favor of the prisoner against the evidence of
his guilt." Post, at15.
The dissent
fails to articulate the relief that would be
available if petitioner were to meets its
"probable innocence" standard. Would it be
commutation of petitioner's death sentence, new
trial, or unconditional release from
imprisonment? The typical relief granted in
federal habeas corpus is a conditional order of
release unless the State elects to retry the
successful habeaspetitioner, or in a capital
case a similar conditional order vacating the
death sentence. Were petitioner to satisfy the
dissent's "probable innocence" standard,
therefore, the District Court would presumably
be required to grant a conditional order of
relief, which would in effect require the State
to retry petitioner 10 years after his first
trial, not because of any constitutional
violation which had occurred at the first trial,
but simply because of a belief that in light of
petitioner's new found evidence a jury might
find him not guilty at a second trial.
Yet there is
no guarantee that the guilt or innocence
determination would be any more exact. To the
contrary, the passage of time only diminishes
the reliability of criminal adjudications. See
McCleskey v. Zant, 499 U.S. ___
(1991) (slip op., at 22) ("[W]hen a habeas
petitioner succeeds in obtaining a new trial,
the `erosion of memory and dispersion of
witnesses that occur with the passage of time'
prejudice the government and diminish the
chances of a reliable criminal adjudication") (quoting
Kuhlmann v. Wilson, 477 U.S. 436,
453 (1986) (plurality opinion) (internal
quotation marks omitted; citation omitted));
United States v. Smith, 331 U.S. 469,
476 (1947). Under the dissent's approach, the
District Court would be placed in the even more
difficult position of having to weigh the
probative value of "hot" and "cold" evidence on
petitioner's guilt or innocence.
This is not
to say that our habeas jurisprudence casts a
blind eye towards innocence. In a series of
cases culminating with Sawyer v.
Whitley, 505 U.S. ___ (1992), decided last
Term, we have held that a petitioner otherwise
subject to defenses of abusive or successive use
of the writ may have his federal constitutional
claim considered on the merits if he makes a
proper showing of actual innocence. This rule,
or fundamental miscarriage of justice exception,
is grounded in the "equitablediscretion" of
habeas courts to see that federalconstitutional
errors do not result in the incarceration of
innocent
persons. See McCleskey, supra, at
___ (slip op., at 33). But this body of our
habeas jurisprudence makes clear that a claim of
"actual innocence" is not itself a
constitutional claim, but instead a gateway
through which a habeas petitioner must pass to
have his otherwise barred constitutional claim
considered on the merits.
Petitioner
in this case is simply not entitled to habeas
relief based on the reasoning of this line of
cases. For he does not seek excusal of a
procedural error so that he may bring an
independent constitutional claim challenging his
conviction or sentence, but rather argues that
he is entitled to habeas relief because newly
discovered evidence shows that his conviction is
factually incorrect. The fundamental miscarriage
of justice exception is available "only where
the prisoner supplements his
constitutional claim with a colorable showing of
factual innocence." Kuhlmann, supra,
at 454 (emphasis added). We have never held that
it extends to free standing claims of actual
innocence. Therefore, the exception is
inapplicable here.
Petitioner
asserts that this case is different because he
has been sentenced to death. But we have "refused
to hold that the fact that a death sentence has
been imposed requires a different standard of
review on federal habeas corpus." Murray
v. Giarratano, 492 U.S. 1, 9 (1989) (plurality
opinion). We have, of course, held that the
Eighth Amendment requires increased reliability
of the process by which capital punishment may
be imposed. See, e. g., McKoy v.
North Carolina, 494 U.S. 433 (1990) (unanimity
requirement impermissibly limits jurors'
consideration of mitigating evidence);
Eddings v. Oklahoma, 455 U.S. 105
(1982) (jury must be allowed to consider all of
a capital defendant's mitigating character
evidence); Lockett v. Ohio, 438
U.S. 586, 604 (1978) (plurality opinion) (same).
But petitioner's claim does not fit well into
the doctrine of these cases, since, as we have
pointed out, it is far from clear that a second
trial 10
years after
the first trial would produce a more reliable
result.
Perhaps
mindful of this, petitioner urges not that he
necessarily receive a new trial, but that his
death sentence simply be vacated if a federal
habeas court deems that a satisfactory showing
of "actual innocence" has been made. Tr. of Oral
Arg. 19-20. But such a result is scarcely
logical; petitioner's claim is not that some
error was made in imposing a capital sentence
upon him, but that a fundamental error was made
in finding him guilty of the underlying murder
in the first place. It would be a rather strange
jurisprudence, in these circumstances, which
held that under our Constitution he could not be
executed, but that he could spend the rest of
his life in prison.
Petitioner
argues that our decision in Ford v.
Wainwright, 477 U.S. 399 (1986), supports
his position. The plurality in Ford held
that, because the Eighth Amendment prohibits the
execution of insane persons, certain procedural
protections inhere in the sanity determination.
"[I]f the Constitution renders the fact or
timing of his execution contingent upon
establishment of a further fact," Justice
Marshall wrote, "then that fact must be
determined with the high regard for truth that
befits a decision affecting the life or death of
a human being." Id., at 411. Because the
Florida scheme for determining the sanity of
persons sentenced to death failed "to achieve
even the minimal degree of reliability," id.,
at 413, the plurality concluded that Ford was
entitled to an evidentiary hearing on his sanity
before the District Court.
Unlike
petitioner here, Ford did not challenge the
validity of his conviction. Rather, he
challenged the constitutionality of his death
sentence in view of his claim of insanity.
Because Ford's claim went to a matter of
punishment--not guilt--it was properly examined
within the purview of the Eighth Amendment.
Moreover, unlike
the question
of guilt or innocence, which becomes more
uncertain with time for evidentiary reasons, the
issue of sanity is properly considered in
proximity to the execution. Finally, unlike the
sanity determination under the Florida scheme at
issue in Ford, the guilt or innocence
determination in our system of criminal justice
is made "with the high regard for truth that
befits a decision affecting the life or death of
a human being." Id., at 411.
Petitioner
also relies on Johnson v. Mississippi,
486 U.S. 578 (1988), where we held that the
Eighth Amendment requires reexamination of a
death sentence based in part on a prior felony
conviction which was set aside in the rendering
State after the capital sentence was imposed.
There, the State insisted that it was too late
in the day to raise this point. But we pointed
out that the Mississippi Supreme Court had
previously considered similar claims by writ of
error coram nobis. Thus, there was no
need to override state law relating to newly
discovered evidence in order to consider
Johnson's claim on the merits. Here, there is no
doubt that petitioner seeks additional process--an
evidentiary hearing on his claim of "actual
innocence" based on newly discovered evidence--which
is not available under Texas law more than 30
days after imposition or suspension of sentence.
Tex. Rule App. Proc. 31(a)(1) (1992).
[n.5]
Alternatively, petitioner invokes the Fourteenth
Amendment's guarantee of due process of law in
supportof his claim that his showing of actual
innocence entitles him to a new trial, or at
least to a vacation of his death sentence.
[n.6] "[B]ecause
the States have considerable expertise in
matters of criminal procedure and the criminal
process is grounded in centuries of common law
tradition," we have "exercis[ed] substantial
deference to legislative judgments in this area."
Medina v. California, 505 U.S. ___
(1992) (slip op., at 7-8). Thus, we have found
criminal process lacking only where it " `offends
some principle of justice so rooted in the
traditions and conscience of our people as to be
ranked as fundamental.' " Ibid. (quoting
Patterson v. New York, 432 U.S.
197, 202 (1977)). "Historical practice is
probative of whether a procedural rule can be
characterized as fundamental." 505 U. S., at
*****
The
Constitution itself, of course, makes no mention
of new trials. New trials in criminal cases were
not granted in England until the end of the 17th
century. And even then, they were available only
in misdemeanor cases, though the writ of error
coram nobis was available for some errors
of fact in felony cases. Orfield, New Trial in
Federal
Criminal Cases, 2 Vill. L. Rev. 293, 304 (1957).
The First Congress provided for new trials for "reasons
for which new trials have usually been granted
in courts of law." Act of Sept. 24, 1789, ch.
20, §17, 1 Stat. 83. This rule was early held to
extend to criminal cases. See Sparf and
Hansen v. United States, 156 U.S. 51,
175 (1895) (Gray, J., dissenting) (citing
cases). One of the grounds upon which new trials
were granted was newly discovered evidence. See
F. Wharton, Criminal Pleading and Practice
§§854-874, pp. 584-592 (8th ed. 1880).
The early
federal cases adhere to the common law rule that
a new trial may be granted only during the term
of court in which the final judgment was entered.
See, e. g., United States v.
Mayer, 235 U.S. 55, 67 (1914); United
States v. Simmons, 27 F. Cas. 1080,
(No. 16,289) (CCEDNY 1878). Otherwise, "the
court at a subsequent term has power to correct
inaccuracies in mere matters of form, or
clerical errors." 235 U. S., at 67. In 1934,
this Court departed from the common law rule and
adopted a time limit--60 days after final
judgment--for filing new trial motions based on
newly discovered evidence. Rule II(3), Criminal
Rules of Practice and Procedure, 292 U.S. 659,
662. Four years later, we amended Rule II(3) to
allow such motions in capital cases "at any
time" before the execution took place. 304 U.S.
592, 592 (1938) (codified at 18 U.S.C. § 688
(1940)).
There ensued
a debate as to whether this Court should abolish
the time limit for filing new trial motions
based on newly discovered evidence to prevent a
miscarriage of justice, or retain a time limit
even in capital cases to promote finality. See
Orfield, supra, at 299-304. In 1945, we
set a two-year time limit for filing new trial
motions based on newly discovered evidence and
abolished the exception for capital cases. Rule
33, Federal Rules of Criminal Procedure, 327
U.S. 821, 855-856 ("A motion for new trial based
on the ground of newly discovered evidence may
be made only before or within two yearsafter
final judgment").
[n.7] We
have strictly construed the Rule 33 time limits.
Cf. United States v. Smith, 331
U.S. 469, 473 (1947). And the Rule's treatment
of new trials based on newly discovered evidence
has not changed since its adoption.
The American
Colonies adopted the English common law on new
trials. Riddell, New Trial in Present Practice,
27 Yale L. J. 353, 360 (1917). Thus, where new
trials were available, motions for such relief
typically had to be filed before the expiration
of the term during which the trial was held. H.
Underhill, Criminal Evidence 579, n. 1 (1898);
J. Bassett, Criminal Pleading and Practice 313
(1885). Over time, many States enacted statutes
providing for new trials in all types of cases.
Some States also extended the time period for
filing new trial motions beyond the term of
court, but most States required that such
motions be made within a few days after the
verdict was rendered or before the judgment was
entered. See American Law Institute Code of
Criminal Procedure 1040-1042 (Official Draft
1931) (reviewing contemporary new trials rules).
The practice
in the States today, while of limited relevance
to our historical inquiry, is divergent. Texas
isone of 17 States that requires a new trial
motion based on newly discovered evidence to be
made within 60 days of judgment.
[n.8] One
State adheres to the common law rule and
requires that such a motion be filed during the
term in which judgment was rendered.
[n.9]
Eighteen jurisdictions have time limits ranging
between 1 and 3 years, with 10 States and the
District of Columbia following the 2-year
federal time limit.
[n.10] Only
15 States allow a new trial motion based on
newly discovered evidence to be filed more than
3 years after conviction. Of these States, 4
have waivable time limits of less than 120 days,
2 havewaivable time limits of more than 120 days,
and 9 States have no time limits.
[n.11]
In light of
the historical availability of new trials, our
own amendments to Rule 33, and the contemporary
practice in the States, we cannot say that
Texas' refusal to entertain petitioner's newly
discovered evidence eight years after his
conviction transgresses a principle of
fundamental fairness "rooted in the traditions
and conscience of our people." Patterson
v. New York, 432 U. S., at 202 (internal
quotation marks and citations omitted). This is
not to say, however, that petitioner is left
without a forum to raise his actual innocence
claim. For under Texas law, petitioner may file
a request for executive clemency. See Tex.
Const., Art. IV., §11; Tex. Code Crim. Proc.
Ann., Art. 48.01 (Vernon 1979). Clemency
[n.12] is
deeply rooted in our Anglo American tradition of
law, and is the historic remedy for preventing
miscarriages of justice where judicial process
has been exhausted.
[n.13]
In England,
the clemency power was vested in the Crown and
can be traced back to the 700's. W. Humbert, The
Pardoning Power of the President 9 (1941).
Blackstone thought this "one of the great
advantages of monarchy in general, above any
other form of government; that there is a
magistrate, who has it in his power to extend
mercy, wherever he thinks it is deserved:
holding a court of equity in his own breast, to
soften the rigour of the general law, in such
criminal cases as merit an exemption from
punishment." 4 W. Blackstone, Commentaries *397.
Clemency provided the principal avenue of relief
for individuals convicted of criminal offenses--most
of which were capital--because there was no
right of appeal until 1907. 1 L. Radzinowicz, A
History of English Criminal Law 122 (1948). It
was the only means by which one could challenge
his conviction on the ground of innocence.
United States Dept. of Justice, 3 Attorney
General's Survey of Release Procedures 73
(1939).
Our
Constitution adopts the British model and gives
to the President the "Power to grant Reprieves
and Pardons for Offences against the United
States." Art. II, §2, cl. 1. In United States
v. Wilson, 7 Pet. 150, 160-161 (1833),
Chief Justice Marshall expounded on the
President's pardon power:
"As
this power had been exercised from time
immemorial by the executive of that nation
whose language is our language, and to whose
judicial institutions ours bears a close
resemblance; we adopt their principles
respecting the operation and effect of a
pardon, and look into their books for the
rules prescribing the manner in which it is
to be used by the person who would avail
himself of it.
"A
pardon is an act of grace, proceeding from
the power entrusted with the execution of
the laws, which exempts the individual, on
whom it is bestowed, from the punishment the
law inflicts for a crime he has committed.
It is the private, though official act of
the executive magistrate, delivered to the
individual for whose benefit it is intended,
and not communicated officially to the court.
It is a constituent part of the judicial
system, that the judge sees only with
judicial eyes, and knows nothing respecting
any particular case, of which he is not
informed judicially. A private deed, not
communicated to him, whatever may be its
character, whether a pardon or release, is
totally unknown and cannot be acted on. The
looseness which would be introduced into
judicial proceedings, would prove fatal to
the great principles of justice, if the
judge might notice and act upon facts not
brought regularly into the cause. Such a
proceeding, in ordinary cases, would subvert
the best established principles, and
overturn those rules which have been settled
by the wisdom of ages."
See also
Ex parte Garland, 4 Wall. 333, 380-381
(1867); The Federalist No. 74, pp. 447-449 (C.
Rossiter ed. 1961) (A. Hamilton) ("The criminal
code of every country partakes so much of
necessary severity that without an easy access
to exceptions in favor of unfortunate guilt,
justice
would wear a countenance too sanguinary and
cruel").
Of course,
although the Constitution vests in the President
a pardon power, it does not require the States
to enact a clemency mechanism. Yet since the
British Colonies were founded, clemency has been
available in America. C. Jensen, The Pardoning
Power in the American States 3-4 (1922). The
original States were reluctant to vest the
clemency power in the executive. And although
this power has gravitated toward the executive
over time, several States have split the
clemency power between the Governor and an
advisory board selected by the legislature. See
Survey of Release Procedures, supra, at
91-98. Today, all 36 States that authorize
capital punishment have constitutional or
statutory provisions for clemency.
[n.14]
Executive
clemency has provided the "fail safe" in our
criminal justice system. K. Moore, Pardons:
Justice, Mercy, and the Public Interest 131
(1989). It is an unalterable fact that our
judicial system, like the human beings who
administer it, is fallible. But history is
replete with examples of wrongfully convicted
persons who have been pardoned in the wake of
after discovered evidence establishing their
innocence. In his classic work, Professor Edwin
Borchard compiled 65 cases in which it was later
determined that individuals had been wrongfully
convicted of crimes. Clemency provided the
relief mechanism in 47 of these cases; the
remaining cases ended in judgments of acquittals
after new trials. E. Borchard, Convicting the
Innocent (1932). Recent authority confirms that
over the past century clemency has been
exercised frequently in capital cases in which
demonstrations of "actual innocence" have been
made. See M. Radelet, H. Bedau, & C. Putnam, In
Spite of Innocence 282-356 (1992).
[n.15]
In Texas,
the Governor has the power, upon the
recommendation of a majority of the Board of
Pardons and Paroles, to grant clemency. Tex.
Const., Art. IV, §11; Tex. Code Crim. Proc.
Ann.; Art. 48.01 (Vernon 1979). The board's
consideration is triggered upon request of the
individual sentenced to death, his or her
representative, or the Governor herself. In
capital cases, a request may be made for a full
pardon, Tex. Admin. Code, Tit. 37, §143.1 (West
Supp. 1992), a commutation of death sentence to
life imprisonment or appropriate maximum
penalty, §143.57, or a reprieve of execution,
§143.43. The Governor has the sole authority to
grant one reprieve in any capital case not
exceeding 30 days. §143.41(a).
The Texas
clemency procedures contain specific guidelines
for pardons on the ground of innocence. The
board will entertain applications for a
recommendation of full pardon because of
innocence upon receipt of the following: "(1) a
written unanimous recommendation of the current
trial officials of the court of conviction; and/or
(2) a certified order or judgment of a court
having jurisdiction accompanied by certified
copy of the findings of fact (if any); and (3)
affidavits of witnesses upon which the finding
of innocence is based." §143.2. In this case,
petitioner has apparently sought a 30-day
reprieve from the Governor, but has yet to apply
for a pardon, or even a commutation, on the
ground of innocence or otherwise. Tr. of Oral
Arg. 7, 34.
As the
foregoing discussion illustrates, in state
criminal proceedings the trial is the paramount
event for determining the guilt or innocence of
the defendant. Federal habeas review of state
convictions has traditionally been limited to
claims of constitutionalviolations occurring in
the course of the underlying state criminal
proceedings. Our federal habeas cases have
treated claims of "actual innocence," not as an
independent constitutional claim, but as a basis
upon which a habeas petitioner may have an
independent constitutional claim considered on
the merits, even though his habeas petition
would otherwise be regarded as successive or
abusive. History shows that the traditional
remedy for claims of innocence based on new
evidence, discovered too late in the day to file
a new trial motion, has been executive clemency.
We may
assume, for the sake of argument in deciding
this case, that in a capital case a truly
persuasive demonstration of "actual innocence"
made after trial would render the execution of a
defendant unconstitutional, and warrant federal
habeas relief if there were no state avenue open
to process such a claim. But because of the very
disruptive effect that entertaining claims of
actual innocence would have on the need for
finality in capital cases, and the enormous
burden that having to retry cases based on often
stale evidence would place on the States, the
threshold showing for such an assumed right
would necessarily be extraordinarily high. The
showing made by petitioner in this case falls
far short of any such threshold.
Petitioner's
newly discovered evidence consists of affidavits.
In the new trial context, motions based solely
upon affidavits are disfavored because the
affiants' statements are obtained without the
benefit of cross examination and an opportunity
to make credibility determinations. See Orfield,
2 Vill. L. Rev., at 333. Petitioner's affidavits
are particularly suspect in this regard because,
with the exception of Raul Herrera, Jr.'s,
affidavit, they consist of hearsay. Likewise, in
reviewing petitioner's new evidence, we are
mindful that defendants often abuse new trial
motions "as a method of delaying enforcement of
just sentences." United States v.
Johnson,327 U.S. 106, 112 (1946). Although
we are not presented with a new trial motion
per se, we believe the likelihood of abuse
is as great--or greater--here.
The
affidavits filed in this habeas proceeding were
given over eight years after petitioner's trial.
No satisfactory explanation has been given as to
why the affiants waited until the 11th hour--and,
indeed, until after the alleged perpetrator of
the murders himself was dead--to make their
statements. Cf. Taylor v. Illinois,
484 U.S. 400, 414 (1988) ("[I]t is . . .
reasonable to presume that there is something
suspect about a defense witness who is not
identified until after the 11th hour has passed").
Equally troubling, no explanation has been
offered as to why petitioner, by hypothesis an
innocent man, pleaded guilty to the murder of
Rucker.
Moreover,
the affidavits themselves contain
inconsistencies, and therefore fail to provide a
convincing account of what took place on the
night Officers Rucker and Carrisalez were killed.
For instance, the affidavit of Raul Jr., who was
nine years old at the time, indicates that there
were three people in the speeding car from which
the murderer emerged, whereas Hector Villarreal
attested that Raul Sr. told him that there were
two people in the car that night. Of course,
Hernandez testified at petitioner's trial that
the murderer was the only occupant of the car.
The affidavits also conflict as to the direction
in which the vehicle was heading when the
murders took place, and petitioner's whereabouts
on the night of the killings.
Finally, the
affidavits must be considered in light of the
proof of petitioner's guilt at trial--proof
which included two eyewitness identifications,
numerous pieces of circumstantial evidence, and
a handwritten letter in which petitioner
apologized for killing the officers and offered
to turn himself in under certain conditions. See
supra, at 2-3, and n. 1. That proof, even
when considered alongside petitioner's belated
affidavits, points strongly to petitioner's
guilt.
This is not
to say that petitioner's affidavits are without
probative value. Had this sort of testimony been
offered at trial, it could have been weighed by
the jury, along with the evidence offered by the
State and petitioner, in deliberating upon its
verdict. Since the statements in the affidavits
contradict the evidence received at trial, the
jury would have had to decide important issues
of credibility. But coming 10 years after
petitioner's trial, this showing of innocence
falls far short of that which would have to be
made in order to trigger the sort of
constitutional claim which we have assumed,
arguendo, to exist.
The judgment
of the Court of Appeals is
Affirmed.
Notes
