1. I didn't say that H v C said you can get relief if you can show innocence plus a colorable constitutional claim, I said that it said you can't get relief despite innocence if you can't.
2. It is true that Herrera argued that executing an innocent person was per se unconstiutional. The S.Ct rejected that position. So the characterization that you can't get relief despite innocence if you can't show a colorable constitutional claim is correct, because H v C implies that mere innocence isn't one.
3. It is also true that H v C was narrowly about what is required to overcome procedural bars to hearing habeas claims, most particularly successive habeas petitions. But it remains true that if innocence alone won't get you over a procdedural bar, you won't get relief. Moreover courts have consistently held that H v C applies even in cases where therew is no procedural bar and the court considers a claim on the merits. I know of no court that has held on ther merit sthat actual innocence without a showing of a constitutional viuolation is sufficient for relief.
5. I wasn't describing the post 1996 habeas law, and in fact I expressly distinguished the rule in the old law from the rule established in the post 1996 law.
6. O'Connor did not say that there was such thing as no innocent person who had been convicted at a fair trial, you are ascribing to her Rehnquist's position (and the Court's). She did suggest that with truely convincing evidence of actual innocence there might be a basis for avoiding procedural bars and by implication granting relief.
At some point I shall have to examine your Wikipedia article; from your characterization of it there may be legal errors in it.
--- "J. Tyler" <jptyler at earthlink.net> wrote:
> andie nachgeborenen wrote:
>
> >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 *convicti!
> on* 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
>
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