> 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.
But what you described (granting habeas relief only on a showing of either unreasonable determination of the facts by the state court or misinterpretation or misapplication of federal constitutional law by that court) only became law with AEDPA. Before AEDPA, that was not the law, and federal review of habeas claims was de novo (in the sense that it did not have to defer to the State's court's application of federal law, and only to its findings of facts if "fairly supported by the record"). A habeas petitioner did not need to prove that the state court was unreasonable to get relief until 1996.
> 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.
Here is O'Connor's first three paragraphs:
"I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed - [] - the execution of a legally and factually innocent person would be a constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: petitioner is not innocent in any sense of the word.
"As the Court [majority] explains, ante, at 398-400, petitioner is not innocent in the eyes of the law because, in our system of justice, 'the trial is the paramount event for determining the guilt or innocence of the defendant.' In petitioner's case, that paramount event occurred 10 years ago. He was tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that trial, the jury found petitioner guilty beyond a reasonable doubt. Petitioner therefore does not appear before us as an innocent man on the verge of execution. He is instead a legally guilty one who, refusing to accept the jury's verdict, demands a hearing in which to have his culpability determined once again. Ante, at 399-400.
"Consequently, the issue before us is not whether a State can execute the innocent. ..."
The logic is straightforward:
Premise (1): Executing the innocent is unconstitutional. Premise (2): Herrera is not innocent because he was tried before a jury of his peers at a constitutional trial. Conclusion: Whether the State can execute the innocent is not before us.
She goes on in her concurrence (and affirmed by her joining in the majority opinion) to deny that petitioners are entitled to attempt to prove their innocence in federal post-conviction proceedings. Hence, if you are convicted at a constitutionally fair trial, you are not innocent by definition, and you are not entitled to attempt to prove your innocence. That makes her first paragraph, in which she explicitly accepts the principle that executing innocent people is unconstitutional, hollow.
Like the majority, she refused to answer the question asked (and for which certiorari was accepted): whether the Eighth Amendment prohibits the state from executing a person who can demonstrate his innocence. These "categorical exemption" questions are addressed all the time in federal habeas proceedings, e.g., Ford v. Wainwright (Eighth Amendment prohibits executing incompetent), Atkins v. Virginia (Eighth Amendment prohibits executing mentally retarded), Roper v. Simmons (Eighth Amendment prohibits executing juvenile offenders). Those questions, like the one in Herrera, have nothing to do with the fairness of the original proceedings; they had to do with characteristics of the defendant. But when it came to determining whether the Eighth Amendment prohibits executing a factually innocent person, the majority balked and refused to even acknowledge the question asked. (Really, it was only O'Connor and Kennedy who balked, because the Justices in the majority were no surprise...Scalia, Thomas, and Rehnquist dissented in both Atkins and Simmons.)
The wikipedia article does not go into much depth, but I think it offers a concise summary of the opinions of Rehnquist, O'Connor, and Blackmun.