'But I Still Haven’t Found What I’m Looking For': The Supreme Court’s Struggle to Understand Factual Investigations in Federal Habeas Corpus

Abstract

The Supreme Court’s decision in McQuiggin v. Perkins found that a defendant’s actual innocence of his conviction may trump the 28 USC § 2244(d)(1)(D) one year statute of limitations for filing a habeas corpus petition. However, a federal court must take into account the delay in bringing the case when considering whether a miscarriage of justice occurred. In other words, the longer the delay after the one year trigger to bring the evidence to federal court, the less likely an inmate will be able to prove his innocence. The problem with application of a sliding scale is the Court’s failure to appreciate the difficulties in gathering the hard evidence necessary to establish actual innocence. For a pro se inmate, this task is near insurmountable because of the investigation needed to locate witnesses, find records, and obtain expert analysis of physical evidence required to substantiate an innocence claim. Even those agencies tasked with proving innocence take years to gather evidence that establishes innocence regardless of whether the case involves DNA testing.What makes the Court’s reasoning on innocence issues more troubling is the leniency that is extended to a much broader range of constitutional violations. Inmates who argue a Sixth Amendment ineffective assistance of counsel claim may have an easier time obtaining relief than an innocent inmate, even though both face the same obstacles concerning factual evidence to support their arguments. The Court’s recent decisions for Martinez v. Ryan and Trevino v. Thaler, which permits raising improperly pled ineffective assistance of counsel claims either on direct appeal or state post-conviction, to satisfy the cause and prejudice standard for not bringing a viable claim of failure to investigate within the proper procedural mechanism. The Court’s disconnect in recognizing that the same difficulties exist between the innocent and the wider pool of inmates challenging convictions must be remedied to permit those wrongfully convicted an easier path to freedom.