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Does the Actual Innocence Exception Apply to Non-Capital Sentencing?

by Regina Cocco

Summer 2004, Vol. 67, No. 2

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." This window is known as the actual innocence exception. For a petitioner on death row challenging his or her sentence, the window is always open. For a petitioner in a non-capital case, the window is either open, closed or cracked, depending on the circuit in which the case arises.

Part One — Introduction

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.

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. 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. This has developed through case law as the "actual innocence" exception.

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. In other words, a prisoner can be unqualified for the death sentence or "innocent of death." While it readily applied the actual innocence exception to capital sentencing, 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. There are positions at the extremes that it does apply and that it does not, 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. 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 Effective Death Penalty Act (AEDPA).

This Comment proposes that the actual innocence exception should apply in the non-capital sentencing context. Part Three explores the rationale for this. It discusses how the two seminal Supreme Court cases that extended the actual innocence exception to the sentencing stage, Smith v. Murray and Sawyer v. Whitley, are ambiguous as to whether an application to non-capital sentencing was considered. It also 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. And it 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.

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. 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. For example, if a state requires a contemporaneous objection in order to preserve a review of a ruling on the admissibility of certain evidence, then a defendant who does not make a timely objection will not be allowed to challenge it on federal habeas corpus review. 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. 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." This "miscarriage of justice" exception became known as the "actual innocence" exception.

It should be noted that the actual innocence exception applies in another doctrine that is distinct from procedural default — the abuse of the writ doctrine. Until the enactment of the AEDPA in 1996, both procedural default and abuse of the writ could be excused by a showing of "cause" and "prejudice." Like procedural default, abuse of the writ prevents a federal court from hearing the claims of a federal habeas corpus petition. Both abuse of the writ and procedural default aim to protect the finality of litigation. For this and other reasons, the cause-and-prejudice standard developed in the procedural default context was transported to the abuse of the writ context. In addition, the actual innocence exception as it applies to sentencing has been developed in both procedural default and abuse of the writ contexts. As such, the cases cited herein have arisen in both contexts.

While the procedural default doctrine is based on considerations of comity and finality, the Supreme Court has said that "[i]n appropriate cases those principles must yield to the imperative of correcting a fundamentally unjust incarceration." Such procedural default can be excused and a conviction collaterally attacked by showing "cause" for the default and that "actual prejudice" has resulted from claimed errors. Although cause-and-prejudice was initially undefined, subsequent Supreme Court decisions have expanded on the standard. Murray v. Carrier set out to explain the first half of the standard: "cause" depends on whether a prisoner can show that an objective factor, external to the defense, impeded his efforts to comply with the state’s procedural rule. Prejudice has been defined as a showing that the prisoner was denied "fundamental fairness" at trial.

An Exception to the Exception: Actual Innocence
The cause-and-prejudice requirement is not the end of the story. Murray v. Carrier held that if a failure to hear the merits of a procedurally defaulted claim would result in a fundamental miscarriage of justice, the federal habeas court could hear the claim. The Carrier court asserted confidence that "fundamental fairness" would not be thwarted by the cause-and-prejudice standard. Despite its confidence in the standard, the court set out the actual innocence exception for the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." The actual innocence exception is not an independent basis for habeas relief — rather it is a gateway to federal review of the substantive claim that has been barred by procedural default. While the Supreme Court laid out the actual innocence exception in Carrier and Kuhlmann v. Wilson, it simultaneously extended the exception to capital sentencing in Smith v. Murray. In Carrier and Kuhlmann, "actual innocence" refers to innocence of a conviction. In the Smith context, however, actual innocence means "innocent of the death penalty." A prisoner who is "innocent of death" is one who would not have been eligible for the death penalty because the state would have failed to meet the criteria for its imposition. The court acknowledged the awkwardness of the concept of "innocence of death." Nevertheless, it established that a showing of either "innocence of the crime" or "innocence of the death penalty" was a gateway through which a habeas petitioner could pass to have his or her otherwise-barred claim heard. While the court extended the actual innocence exception to capital sentencing in Smith, it established the standard of proof for the exception in Sawyer v. Whitley. Sawyer held that in order "to show "actual innocence" one must show by clear and convincing evidence that, but-for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer emphasized that the focus of the exception is on factual, as opposed to legal, innocence.

Part Two – Overview of the Split

It has been said that the “very nature of the writ [of habeas corpus] demands that it be administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected.” But the Supreme Court’s emphasis on the narrowness of the actual innocence exception in its application to capital sentencing has left the federal courts unsure of just how much flexibility and reach it has.

Actual Innocence Does Not Extend to Non-Capital Sentences
The most limited application of the actual innocence exception to sentencing is held by the Eighth and Tenth Circuits. Although these circuits now share identical positions on the application of the actual innocence exception to non-capital sentencing cases, the Eighth Circuit's approach is the result of a position change. The Tenth Circuit alone has flatly refused to extend the exception to non-capital sentences since first considering the issue in United States v. Richards.

In 1996, The Tenth Circuit re-affirmed its position that the actual innocence exception cannot apply to non-capital sentencing in another context — sentencing enhancements under career, or habitual, offender statutes. This decision was particularly stringent, since other circuits have carved out habitual offender statutes as an area where the actual innocence exception applies. Yet the Tenth Circuit found that a sentence enhancement was distinct from an independent criminal offense, and that the actual innocence exception did not apply to the former.

The Eighth Circuit relied on Richards' reasoning and likewise refused to extend the exception to non-capital cases in Embrey v. Hershberger. As in Richards, the petitioner argued that his enhanced sentence was the result of a mistake, and that he was therefore actually innocent of it.

Embrey characterized the defendant's claim as essentially legal, as opposed to factual, and held that this type of claim was not the sort miscarriage of justice that the Supreme Court had envisioned. Instead, the Eighth Circuit stressed, the actual innocence exception concerns factual, as opposed to legal, innocence. The court posited that a legal claim that a criminal statute had been misapplied to the facts could always be converted to a claim that the relevant facts did not support a conviction and the defendant was therefore actually innocent. In the court's view, this was problematic since then "any such claim can be said to be one of actual innocence, effectively undermining the barrier to post-conviction relief that the principle of actual innocence was meant to erect."

Notably, the Embrey majority did not mention the Eighth Circuit's pre-Sawyer treatment of the actual innocence exception and its struggle to harmonize its case law with the Supreme Court's 1992 decision. But in 1991, in Jones v. Arkansas, the Eighth Circuit found a petitioner actually innocent of the sentence he received in error when the state misapplied its habitual offender statutes. Following the Supreme Court’s decision in Sawyer, the Eighth Circuit questioned the validity of Jones but avoided overruling it. In Embrey, the Eighth Circuit effectively changed its position on the actual innocence exception's applicability to non-capital sentencing without mentioning Jones.

The Eighth Circuit's post-Sawyer struggle with its Jones holding was due to language in Sawyer that it viewed as indicating that the actual innocence exception was limited to capital sentencing. Both the Eighth and Tenth Circuits took Sawyer's declaration that, "in the context of a non-capital case, the concept of "actual innocence" is easy to grasp," to mean that the court was referring to the crime itself. Sawyer further noted that its task was to "strive to construct an analog to the simpler situation represented by the case of a non-capital defendant." The Eight and Tenth Circuits read this "simpler situation" to be the guilt phase of the non-capital trial. As such, Sawyer's perception that the "concept of actual innocence" as easier to understand in a non-capital context meant that it was only contemplating extending the actual innocence exception to capital cases, which, unlike non-capital cases, have a separate sentencing phase.

The Eight and Tenth Circuits rely heavily on their interpretation of key language in Sawyer to bar the use of the actual innocence exception in non-capital sentencing. The Embrey dissent characterized this as "exalt[ing] form over substance." It asserted that the majority misread Sawyer and saw no valid reason to restrict the Sawyer analysis to cases challenging capital sentences. The dissent boiled its argument down to the simple idea that one is either eligible or ineligible for his or her sentence.

Actual Innocence Exception Applies to Non-Capital Sentencing Only in the Context of Career Offender Guidelines
The Fourth Circuit applied the actual innocence exception in a non-capital sentencing case for the first time in the context of a "career offender" sentencing provision in United States v. Maybeck. Although Maybeck did not restrict the application of the actual innocence exception to only those cases where the application of a career offender/recidivist statute was being challenged, it did so five years later in United States v. Mikalajunas. In Maybeck, the Fourth Circuit heard a petitioner's procedurally defaulted habeas motion because it found that he was "actually innocent" of one of the requirements preceding classification as a career offender. Maybeck analogized the factors, set out in state sentencing guidelines, which lengthen a sentence in a non-capital case to the aggravating circumstances that result in a death sentence in a capital case. Following this logic, the defendant was actually innocent of the factors underlying his "career offender" status, and therefore did not qualify for his enhanced sentence in the same way a capital defendant would not have qualified for death if he or she were actually innocent of the aggravating factors underlying a death sentence.

Maybeck noted the lack of guidance from the Supreme Court on the issue of whether the actual innocence exception applied to non-capital cases. It saw little difference between, on one hand, holding that one could be innocent of the acts required to find a death sentence in a capital case, and on the other hand, that one could be innocent of the acts required to find an enhanced sentence in non-capital cases. The court further noted that although the Supreme Court had not applied the actual innocence exception to non-capital cases, the Seventh and Eighth Circuit at that time had done so. Maybeck acknowledged that, by contrast, the Tenth Circuit had flatly decided that the actual innocence exception should not extend to non-capital cases.

Although the circumstances under which Maybeck applied the actual innocence exception in a non-capital context were that of a challenge to a career offender classification, there was no language in the decision limiting the exception to factually identical situations. Rather, Maybeck took as a basic premise that the Supreme Court has recognized that it is antithetical to our sense of justice to prevent a defendant from asserting his actual innocence simply because that defendant has not followed the correct procedural route. By not restricting its holding to career offender cases, the court left open the question of where else the actual innocence exception could be applied in non-capital cases. That question was answered in Mikalajunas.

Five years after Maybeck, the Fourth Circuit held that the actual innocence exception applies in non-capital sentencing only in the context of erroneous application of career offender guidelines. Although the petitioners in Mikalajunas read Maybeck as allowing the application of actual innocence exception whenever a defendant is "innocent" of a sentencing adjustment, the court insisted that this broader reading of Maybeck was incorrect. The court believed such a reading would swallow the rule that issues not raised on direct appeal cannot be heard in a habeas petition absent a showing of cause-and-prejudice to excuse the procedural default.

At issue in Mikalajunas were not career offender guidelines (as in Maybeck) but "enhancement of sentence" guidelines. Although the Fourth Circuit agreed that the petitioners' sentences had been improperly adjusted upwards, since it held that the actual innocence exception did not apply outside the context of career offender provisions (in non-capital cases), procedural default barred the court from considering the merits of the habeas petition.

While Maybeck had been a unanimous panel decision, one of the judges on the Mikalajunas three-judge panel wrote a vigorous dissent. Judge Murnaghan pointed out the absence of language in Maybeck limiting the application of the actual innocence exception to the exact situation that arose in Maybeck — career offender enhancements. He did not share the majority's concern that applying the actual innocence exception more broadly would equivocate the "cause" prong of the cause-and-prejudice standard. Instead, he argued, the Supreme Court developed the actual innocence exception for cases where prejudice is so severe that a conviction or sentence is fundamentally unjust. He noted the Supreme Court’s trend of narrowing the availability of habeas corpus relief in order to stress the finality of decisions, rather than the correction of errors, but points out that the court had been simultaneously expanding the miscarriage of justice standard. Finally, Judge Murnaghan pointed out the practical implications of the majority's narrow reading of Maybeck in this case: the petitioners would remain in prison for one year and four years, respectively, longer than they should by law.

In Haley v. Cockrell, the Fifth Circuit recently joined the Fourth in its limited application of the actual innocence exception to non-capital sentencing. Haley pointed out that the Supreme Court never specifically foreclosed the application of the actual innocence exception to non-capital sentencing cases. Haley held that the actual innocence exception applies to non-capital sentencing procedures involving a career or habitual felony offender for two reasons. The first was in order to give formal recognition to its own dicta from two previous Fifth Circuit cases, Smith v. Collins and Sones v. Hargett, in which it assumed (without holding) that the actual innocence exception was available in a non-capital sentencing context. The second reason was to maintain the actual innocence exception's "fundamental purpose." The Haley court noted that being condemned to serve a sentence for which one is ineligible was a "classic example of a fundamental miscarriage of justice."

Haley did not expand on its decision to restrict the actual innocence exception to only those non-capital cases where a career offender challenge was at stake. The court subsequently denied a petition for rehearing en banc. Six judges dissented and wrote an opinion that stressed the need for full consideration of the issue. The Haley dissent pointed out conflicting language in Sawyer. On the one hand, the dissent recognized that language cited by the Eight and Tenth Circuits did seem to foreclose the extension of the exception to non-capital sentencing. On the other hand, the dissent pointed to two instances where the Supreme Court had specified that it was working in the context of capital sentencing as indicative of its willingness to extend the exception. The first was in Sawyer, where “the Court stated that "[i]n Smith [v. Murray], [it] found no miscarriage of justice in the failure to examine the merits of procedurally defaulted claims in the capital sentencing context."" The second, also in Sawyer, was where the court stated that "[t]he present case requires us to further amplify the meaning of "actual innocence" in the setting of capital punishment." The dissent posited that the court added the qualifying phrases because it saw the possibility for the exception to be used in a non-capital sentencing context.

The Actual Innocence Exception Applies to Non-Capital Sentencing
Substance over form is the approach taken by the Second Circuit, which alone has held that the "actual innocence" exception extends to all non-capital cases. In Spence v. Superintendent, the court stressed that the Supreme Court held that the availability of the actual innocence exception depends on whether the asserted constitutional error undermined the accuracy of the sentencing determination, and not the nature of the penalty imposed. Applying the actual innocence exception to non-capital cases makes sense in light of what the court called the "critical function" of habeas review "correcting a fundamentally unjust incarceration." Finally, Spence pointed out that since the nature of the sentence has no effect on either the habeas analysis or the issue of whether the sentence is just, there is no reason to restrict the exception to only capital sentencing.

In September 1992, Donovan Spence, standing before a New York trial judge, was given the chance to avoid incarceration for a robbery charge to which he pled guilty, and instead receive youthful offender treatment. There was one condition — that Spence stay out of trouble for two months. Failure to do so would mean a revocation of the judge's offer and a sentence of eight and one-third to 25 years.

Spence was re-arrested within the two months and charged with another robbery. Before waiting to find out whether the arrest was legitimate, the court found that Spence had broken his promise and sentenced him accordingly. However, he was later acquitted of the re-arrest charge at trial. Although Spence had been acquitted of that robbery, the heavier sentence was imposed before the charge was adjudicated.

While Sawyer set a high bar for the actual innocence exception in sentencing, the Second Circuit found that the petitioner reached it. As required by the Supreme Court, there must be "clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty." Replacing "death penalty" with "harsher sentence" the court found that Spence met this standard and was actually innocent of the prison term he was serving.

The Third Circuit faced an opportunity to apply the actual innocence exception to non-capital sentencing in Cristin v. Brennan, but ultimately skirted the issue. The court had not previously addressed the issue directly, but assumed arguendo in Glass v. Vaughn that the actual innocence exception could extend to the degree of guilt determination. Since a lesser degree of guilt necessarily denotes a lesser sentence, Cristin noted that its use of the actual innocence exception in Glass could be analogous to an application of the exception to non-capital sentencing.

Part Three — Discussion

The federal circuits are treating capital and non-capital cases differently with respect to actual innocence jurisprudence. This is inconsistent with the principle that the death penalty does not mandate a higher standard of review for federal habeas corpus. After Smith recognized that the exception applies to capital sentencing, Sawyer set the standard of proof. Whether language in these two Supreme Court opinions reveals a contemplation of applying the exception to non-capital sentencing is not the definitive inquiry. Instead, other factors support that view that the actual innocence exception applies to non-capital sentencing.

Did Smith and Sawyer Foreclose an Extension of the Actual Innocence Exception to Non-Capital Cases?
Courts have generally focused on a few relevant sentences from Sawyer in deciding whether it contemplated non-capital sentencing. While discussing the concept of actual innocence, the Supreme Court asserted that in the non-capital context, the concept of actual innocence is "easy to grasp," and that the court "must strive to construct an analog to the simpler situation represented by the case of a non-capital defendant." This implies that what the court had in mind in the context of non-capital cases was only the guilt stage.

On the other hand, the court implied in Smith that the actual innocence exception does apply to non-capital sentencing. First, Smith rejected the idea that a capital case should command a lower threshold for overcoming procedural default. Smith instead suggested that capital and non-capital cases are on equal footing with regard to procedural default jurisprudence. Second, Smith discussed applying procedural default rules in the context of a "guilt or sentencing determination," implying that the death sentence is not the only sentence to which the principle of default and therefore its exception, actual innocence, applies. Smith and Sawyer thus do not clearly indicate either way an opinion about the exception's applicability to non-capital sentencing.

Courts Have Been Missing the Bigger Picture When Interpreting Sawyer
Focusing on the text surrounding the discussion of the actual innocence exception in Sawyer and Smith ignores the bigger picture. The Supreme Court's chief concern was that the actual innocence exception center on objective factors and not be a simple substitute for "cause." In Sawyer, the court was focused on keeping the actual innocence exception from "amount[ing] to little more than what is already required to show "prejudice." "To this end, Sawyer specifically did not want federal habeas courts to engage in an analysis of mitigating evidence that was not introduced in the penalty phase in order to determine actual innocence of the death penalty. This is because the examination of un-introduced mitigating factors would require a far more subjective approach" the federal courts would have to decide whether the factfinder(s) would have found differently had mitigating factors been introduced. Rather, Sawyer made clear that the inquiry of the federal judge confronted with the actual innocence claim should focus only on objective factors. As such, the court confined the inquiry to the elements of the offense and the aggravating circumstances. In this way, the court accomplished its goal of keeping the exception a narrow one.

In characterizing the exception as "narrow," Sawyer focused on the need to use objective standards to determine whether a petitioner met the exception, rather than how broadly the exception was to be applied. It is possible to maintain this focus on objectiveness while extending the actual innocence exception to non-capital sentencing, a fact that those circuits that have extended the exception in the context of career offender guidelines inherently realized. Allowing a defendant to challenge whether the facts of his case support his career offender status satisfies Sawyer's concern that the federal courts evaluate only those potentially incorrect applications of sentencing statutes that are objective and technical in nature. While the concept of actual innocence is easier to understand in the context of career offender statutes, there is no reason to confine the actual innocence exception to only those cases involving challenges to career offender guidelines. Common sense dictates that the exception apply in any instance where the court can objectively evaluate whether or not a prisoner is eligible for the sentence he is serving.

Extending the Exception in Some Cases But Not Others Is Inconsistent With the Purpose for Which it Was Created
The concept of miscarriage of justice, from which the actual innocence exception arose, has applied with equal force to both capital and non-capital cases. While a death sentence is for obvious reasons uniquely dire, requiring a prisoner to serve a longer sentence than he is legally required to should constitute a miscarriage of justice. Courts have allowed the awkwardness of applying the exception to sentencing to obliterate the practical unfairness inherent in serving an illegal sentence. At bottom, the desire for finality must "yield to the imperative of correcting a fundamentally unjust incarceration." Judge Murnaghan, dissenting in Mikalajunas, pointed out that the court's fear that the actual innocence exception would swallow the cause-and-prejudice rule is not the primary issue. The actual innocence exception was created to avoid unjust incarcerations; Judge Murnaghan pointed out that it is unjust to allow someone to serve a longer sentence than is warranted under the sentencing guidelines.

Courts are forgetting the roots of the actual innocence doctrine, which was heavily influenced by Judge Friendly's 1970 article. The article proposed the actual innocence doctrine as a way to refocus the federal habeas courts and limit the reach of the writ. Friendly argued that postconviction collateral attack should be available only when the prisoner pairs his constitutional claim with a "colorable claim of innocence." To this end, Friendly proposed a probability standard.

The Supreme Court adopted Friendly's probability standard for actual innocence claims, noting that allowing the guilty to collaterally attack their sentences would frustrate the states' interest in finality of litigation and crime deterrence. The actual innocence exception was meant to narrow the availability of the writ. Its original purpose stands in stark contrast to subsequent fear that it will expand availability of the writ.

Part Four — Conclusion

Language from the two key Supreme Court decisions that applied the actual innocence exception to capital sentencing is ambiguous about whether the court considered its application to non-capital sentencing as well. As such, a look at the court's bigger message is warranted. Sawyer stressed that the exception remain a narrow one. Sawyer refined the actual innocence exception in the context of capital sentencing by confining the inquiry to aggravating circumstances and elements of the offense. It specifically excluded mitigating factors from the equation because this would force the habeas courts to review subjective factors. Thus, when the Sawyer court said "narrow," it meant “objective.” It did not specifically speak to the breadth of the exception's applicability.

Extending the actual innocence exception to non-capital sentencing is in keeping with the origins of the exception’s jurisprudence. The actual innocence exception was proposed as a way to narrow the availability of the writ by focusing on a prisoner’s innocence. This was motivated by the notion that the states' interest in the finality of outcomes must give way to the "imperative of correcting a fundamentally unjust incarceration." The nature of the sentencing should not change the imperative. Instead, defendants in capital and non-capital cases, if not granted an exception to cause-and-prejudice, would suffer the same consequence of an enhanced sentence based on acts of which they were actually innocent. To remedy this, Judge Lay's eligibility test makes sense; the key inquiry for determining whether the "ends of justice" were met would be whether or not a prisoner is eligible for the sentence he or she is serving.