>That is not quite what Herrera holds. It holds that
>"mere" innocence cannot be a basis for granting a
>habeas writ unless there is also a colorable claim of
>a constitutional violation, which btw, might occur at
>the appellate level for all Herrera says.
Herrera does not hold that if you show innocence plus some "colorable" constitutional violation, that you can gain relief. Herrera says innocence can only get you over procedural obstacles to have otherwise procedurally barred claims heard in federal court. It reduces it to a question of whether you are entitled to have defaulted claims heard on their merits.
What the Herrera court actually did was deny that the petitioner was raising a constitutional claim at all. The question presented was whether the Eighth and Fourteenth Amendments prohibit the execution of a person who can demonstrate his innocence. The Supreme Court refused to answer it, and pretended as if this were not a constitutional claim in itself, but that Herrera was merely claiming to be entitled to relief because he was innocent, which was not the case. By refusing to answer it, the court did of course answer it de facto. Herrera, by implication, actually holds that a death sentence obtained against a demonstrably innocent person is not cruel or unusual punishment. In other words, even if you can demonstrate, post-conviction, that you are innocent of the offense for which you were convicted (by any standard of proof), you are not thereby entitled to relief from your death sentence. (Note how extreme this is: Herrera was not even requesting that his *conviction* be overturned, merely his death sentence.) The Court did this by refusing to acknowledge that such a claim even exists, which means it can't be raised, which of course means relief from a death sentence cannot be obtained on the basis of it.
>That actually pretty much tracks the habeas statute,
>28 USC 2254, which said at the time roughly that to
>gety a new trial or other relief a habeas petitioner
>must show either unreasonable (meaning totally insane
>or completely unsupported) determination of the facts
>by the state court or misinterpretation or
>misapplication* of federal constitutional law by that
>court. (Federal courts won't review state law claims
>unless the state law or its apoplication violates
>federal law.) A merely innocent person who couldn't
>show those things wouldn't be eligible for habeas
>relief.
You are describing the AEDPA (Anti-terrorism and effective death penalty act), which was not passed until 1996. Herrera was decided in 1994. The statute tracks Herrera only procedurally with respect to the justiciability of "successive" habeas petitions, since Herrera was a procedural decision (having denied the existence of a substantive claim). Inmates may only file one unencumbered federal habeas petition. (Unencumbered in the sense that the federal court is obligated to determine its merits. Even still, all of the rules you describe with respect to deference to state court decisions unless "objectively unreasonable" apply, even in the first habeas petition.)
28 U.S.C. 2244:
"(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless...(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, **but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.**"
>That's a terrible position, and it made Justice
>O'Connor, for one, who concurred in the judgment, say
>that it might be unconstitutional, a violation of due
>process, to execute someone where therre was truly
>persuasive evidence of actual innocence even without a
>showing of a federal constitutional violation or
>unreasonable factual determination by the state courts.
That really wasn't what O'Connor said. She said, in effect, that there was no such thing as an innocent person who has been convicted of a crime at a "fair" trial. She, too, dodged the actual constitutional question raised. This is made even clearer because, although she concurred, she also joined the majority opinion. People believe she expressed opposition to the principle the majority espoused, because she did, in fact, say that it would be unconstitutional to execute an innocent person. But you have to examine her definition of what an "innocent person" is to understand what she means by that (i.e., that nobody convicted in a "fair" trial is "innocent").
See the wikipedia article on this case, which I mostly wrote.
http://en.wikipedia.org/wiki/Herrera_v._Collins