1

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

By Regina Cocco I. Introduction

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.”1 This window is known as the actual innocence

exception. 2 For a petitioner on death row challenging his or her sentence, the window is always

open.3 For a petitioner in a non-capital case, the window is either open, 4 closed,5 or cracked,6

depending on the circuit in which the case arises.

1 See Wainwright v. Sykes, 433 U.S. 72, 97 (1977) (holding that in order to collaterally attack a conviction or

sentence based on errors that could have been but were not pursued on direct appeal, the petitioner must show cause

and actual prejudice resulting from the errors); Murray v. Carrier, 477 U.S. 486, 495-96 (1986) (holding that if a

petitioner cannot demonstrate cause-and-prejudice, his or her claim may still be heard if the failure to do so would

result in a fundamental miscarriage of justice).

2 Carrier, 477 U.S. at 496. Carrier noted that the conviction of one who is actually innocent is a fundamental

miscarriage of justice. Id. This miscarriage of justice exception is commonly called the actual innocence exception,

which is how this comment will hereinafter refer to it.

3 See Smith v. Murray, 477 U.S. 527, 537-38 (1986) (applying the actual innocence exception to capital sentencing);

Sawyer v. Whitley, 505 U.S. 333 (1992) (refining the concept).

4 See Spence v. Superintendent, 219 F.3d 162, 170-71 (2d Cir. 2000) (holding that the actual innocence exception

applies to all non-capital sentencing cases). See infra Part II.C for a detailed discussion of the Second Circuit’s

position.

5 See infra Parts II.A and II.B for detailed discussion of the positions of the Eighth and Tenth Circuits, which hold

that the actual innocence exception applies only to capital sentences.

6 See infra Part II.C for a discussion of the Fourth and Fifth Circuits, which both apply the actual innocence

exception to non-capital sentencing in one context: challenges to enhanced s entences resulting from career offender

classifications.

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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.7

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.8 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.9 This has developed through case

law as the “actual innocence” exception. 10

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.11 In other words, a

prisoner can be unqualified for the death sentence—or “innocent of death.”12

7 See Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002), vacated and remanded on other grounds, 124 S. Ct. 1847,

1848 (2004). The Supreme Court recently reviewed the subject of this circuit split when it heard a case that is

discussed in Part II.B. However, the Court ultimately declined to answer the question of whether the actual

innocence exception applies to non-capital sentencing, leaving the split intact. Id.

8 See Sykes, 433 U.S. at 96-97 (establishing the cause-and-prejudice requirement).

9 See Carrier, 477 U.S. at 495-96 (announcing that procedural default can be excused “where a constitutional

violation has probably resulted in the conviction of one who is actually innocent” so as to prevent a “miscarriage of

justice”).

10 Id.

11 Smith v. Murray, 477 U.S. 527, 537-38 (1986).

12 Smith, 477 U.S. at 537 (recognizing the awkwardness of the phrase “innocent of death” but defining it as not death

sentence-qualified).

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While it readily applied the actual innocence exception to capital sentencing, 13 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. 14 There are positions at the extremes—that it does

apply15 and that it does not16, 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. 17 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

13 See Carrier, 477 U.S. at 478, 495-96 (announcing the actual innocence exception to procedural default); Smith,

477 U.S. at 527 (applying the exception to capital sentencing). See also James J. Sticha, Note, To Be or Not to Be?

The Actual Innocence Exception in Non-capital Sentencing Cases. 80 MINN. L. REV. 1615, 1626 (1996) (noting that

both decisions came down on the same day).

14 See Sticha, supra note 13 at 1630-35 (1996) (noting the existence of the circuit split and reviewing it as it stood at

the time). See infra Part II for a detailed overview of the split as it currently stands.

15 See infra Part II.C for a discussion of the position that the actual innocence exception applies to non-capital

sentencing.

16 See Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997) (holding that the actual innocence exception does

not apply in the non-capital sentencing context); United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993)

(holding that “[a] person cannot be actually innocent of a non-capital sentence”). See infra Part II.A for a discussion

of the position that the exception applies only to capital sentencing.

17 See United States. v. Mikalajunas, 186 F.3d 490, 494-495 (4th Cir. 1999) (holding that actual innocence exception

applies to non-capital sentencing cases in the context of challenges to sentences based on career offender findings);

Haley v. Cockrell, 306 F.3d 257 (5th Cir. 2002) (deciding to align itself with the Fourth Circuit’s position). See

infra Part II.B for a discussion of the circuits that apply the actual innocence exception to non-capital sentencing

where a challenge to a career offender designation is being made.

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Effective Death Penalty Act (AEDPA).18

This Comment proposes that the actual innocence exception should apply in the non-

capital sentencing context.19 Section III explores the rationale for this. Section III.A discusses

how the two seminal Supreme Court cases that extended the actual innocence exception to the

sentencing stage, Smith v. Murray20 and Sawyer v. Whitley,21 are ambiguous as to whether an

application to non-capital sentencing was considered. Section III.B 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. Section III.C 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.

A. 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.22

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. 23 For example, if a state requires a

contemporaneous objection in order to preserve a review of a ruling on the admissibility of

18 See Hope v. United States, 108 F.3d 119 (7th Cir. 1997) (holding that the actual innocence exception does not

survive the AEDPA). This Comment will not explore only whether the actual innocence exception should be

applied to non-capital sentencing and not the effect of the AEDPA.

19 See infra Part III.

20 477 U.S. 527 (1986).

21 505 U.S. 333 (1992).

22 Sykes, 433 U.S. at 97.

23 David A. Dow, The Third Dimension of Death Penalty Jurisprudence, 22 AM. J. CRIM. L. 151, 176 (1994).

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certain evidence, then a defendant who does not make a timely objection will not be allowed to

challenge it on federal habeas corpus review. 24 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. 25 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.”26 This “miscarriage of justice”

exception became known as the “actual innocence” exception. 27

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.28 Until the enactment of the

24 Id.

25 See generally RANDY HERTZ & JAMES S. LIEBMAN, 2 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE §§

26.1 (discussing procedural default).

26 Carrier, 477 U.S. at 496.

27 See Kuhlmann v. Wilson, 477 U.S. 436, 448 (1986) (explaining how the actual innocence exception arose from

federal habeas corpus statutory language). The actual innocence exception was derived from the language of the

federal habeas statute which, prior to 1966, allowed successive claims to be denied without hearing if the judge were

"satisfied that the ends of justice will not be served by such inquiry.” Id. Kuhlmann held that the miscarriage of

justice exception survived the removal of that language from the statute, 28 U.S.C. § 2244(a) in 1966. Id. See

Schlup v. Delo, 513 U.S. 298, 321-23 (1995) (discussing how a colorable claim of factual innocence fits into

fundamental miscarriage of justice claim).

28 See e.g., Limin Zheng, Comment, Actual Innocence as a Gateway Through the Statute of Limitations on the Filing

of Federal Habeas Corpus Petitions, 90 CAL. L. REV. 2101, 2121 (2002). Bringing either a successive or second

petition constitutes what is known as abuse of the writ. Id. A successive petition is one where a petitioner raises

grounds identical to those raised and dismissed on their merits in previous habeas petitions. Id. Second petitions

raise grounds that were previously available to a petitioner but which he did not rely upon in prior habeas petitions.

Id. See generally Bryan A. Stevenson, The Politics of Fear and Death: Successive Petitions in Capital Federal

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AEDPA in 1996, both procedural default and abuse of the writ could be excused by a showing of

“cause” and “prejudice.”29 Like procedural default, abuse of the writ prevents a federal court

from hearing the claims of a federal habeas corpus petition. 30 Both abuse of the writ and

procedural default aim to protect the finality of litigation. 31 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.32 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 Cour t has said that “[i]n appropriate cases those principles must yield to the

imperative of correcting a fundamentally unjust incarceration.”33 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.34 Although cause-and-prejudice was

Habeas Corpus Cases. 77 N.Y.U. L.REV. 699, 706-710, 2002 (discussing evolution of rules governing review of

successive habeas petitions, ending with the AEDPA’s new standard).

29 See Sykes, 433 U.S. at 97 (instituting the cause-and-prejudice standard for procedurally defaulted cases);

McCleskey v. Zant, 499 U.S. 467, 490-94 (1991) (extending the standard to abuse of the writ cases). See generally

Thirty-Second Annual Review of Criminal Procedure: Habeas Relief for State Prisoners, 91 GEO.L.J. 817, 844

(2003) (explaining gatekeeping stage).

30 Charles F. Baird, The Habeas Corpus Revolution: A New Role for State Courts? 27 ST . MARY’S L. J. 297, 318

(1996).

31 McCleskey, 499 U.S. at 490-94 (analyzing the similar purposes of state procedural default and federal abuse of the

writ and concluding that the cause-and-prejudice standard should be extended to abuse of the writ).

32 Id.

33 Engle v. Isaac, 456 U.S. 107, 135 (1982).

34 Wainwright v. Skyes, 433 U.S. 72, 97 (1977).

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initially undefined,35 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.36 Prejudice has been defined as a showing that the prisoner was

denied “fundamental fairness” at trial. 37

B. 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. 38 The Carrier court

asserted confidence that “fundamental fairness” would not be thwarted by the cause-and-

prejudice standard.39 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.”40 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.41

35 See Sykes, 433 U.S. at 97 (declining to define “cause” and “actual prejudice”).

36 Murray v. Carrier, 477 U.S. 486, 495-96 (1986). See generally James A. Strazzella, Ineffective Assistance of

Counsel Claims: New uses, Old problems. 19 ARIZ. L. REV. 443, 478-79 (1978) (finding that what often qualifies as

“cause” is ineffective assistance of counsel).

37 See United States v. Frady, 456 U.S. 152, 170 (1982) (stressing that to be prejudicial errors must have worked to

prisoner’s substantial disadvantage at trial).

38 Carrier, 477 U.S. at 496.

39 Id.

40 Id. at 479-80 (emphasis added).

41 Herrera v. Collins, 506 U.S. 390, 405 (1993).

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While the Supreme Court laid out the actual innocence exception in Carrier and

Kuhlmann v. Wilson,42 it simultaneously extended the exception to capital sentenc ing in Smith v.

Murray.43 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.”44 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. 45 The Court

acknowledged the awkwardness of the concept of “innocence of death.”46 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.47

While the Court extended the actual innocence exception to capital sentencing n Smith, it

established the standard of proof for the exception in Sawyer v. Whitley.48 Sawyer held that in

42 See Kuhlmann, 477 U.S. at 454-55 & n.17 (applying the actual innocence exception to abuse of the writ doctrine).

43 477 U.S. 527 (1986). The Carrier, Kuhlmann and Smith decisions all came down from the Court on the same

day.

44 Sawyer, 505 U.S. at 347.

45 The Court in Sawyer agreed with the Eleventh Circuit’s test for determining actual innocence, where “but for the

alleged constitutional error, the sentencing body could not have found any aggravating factors and thus the petitioner

was ineligible for the death penalty.” Id. at 347 n.15 citing Johnson v. Singletary, 938 F.2d 1166, 1183 (1991). Id.

at 345.

46 Id. at 537 (“We acknowledge that the concept of ‘actual,’ as distinct from ‘legal’ innocence does not translate

easily into the context of an alleged error at the sentencing phase of a trial on a capital offense.”).

47 Herrera v. Collins, 506 U.S. 390, 404 (1993) (holding that actual innocence is a gateway to habeas review, not an

independent constitutional claim).

48 505 U.S. 333. The petitioner in Sawyer had been convicted of murder and sentenced to death in 1979. Id. at 336.

He filed a successive petition, to which the Fifth Circuit responded by granting a certificate of probable cause to

determine whether the petition’s merits could be heard on the grounds that he was “actually innocent” of the death

9

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.”49 Sawyer emphasized that the focus of the exception is

on factual, as opposed to legal, innocence.50

II. 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.”51 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.52

A. 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.53 Although these circuits now share identical positions on the

application of the actual innocence exception to non-capital sentencing cases, the Eighth

penalty. Sawyer v. Whitley, 945 F.2d 812, 814 (5th Cir. 1991), aff’d. 505 U.S. 333 (1992). The Fifth Circuit

determined that the actual innocence exception has not been satisfied by the evidence the petitioner claimed was

unconstitutionally withheld from the jury. Id. The Supreme Court affirmed, and set out the standard of proof for

actual innocence of a capital sentence. Sawyer, 505 U.S. at 337.

49 Sawyer, 505 U.S. at 337. See also Calderon v. Thompson, 523 U.S. 538, 559-560 (1998) (noting that the “clear

and convincing” standard of proof applies to actual innocence is the sentencing context only, as a lower standard is

required for actual innocence of the crime).

50 Id. at 339.

51 Harris v. Nelson, 394 U.S. 286, 291 (1969).

52 Sawyer, 505 U.S 333, 341 (1992) (noting that actual innocence is a very narrow exception).

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Circuit’s approach is the result of a position change. 54 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.55

In 1996, The Tenth Circuit reaffirmed its position that the actual innocence exception

cannot apply to non-capital sentencing in another context—sentencing enhancements under

career, or habitual, offender statutes.56 This decision was particularly stringent, since other

circuits have carved out habitual offender statutes as an area where the actual innocence

exception applies.57 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

53 Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir. 1997) (joining the Tenth Circuit in holding that the actual

innocence exception does not apply in the non-capital sentencing context).

54 See id. (concluding that Sawyer applies only to the sentencing phase of death cases); United States v. Richards, 5

F.3d 1369, 1371 (10th Cir. 1993) (holding that “[a] person cannot be actually innocent of a non-capital sentence”).

Cf. Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991) (holding that the actual innocence exception applies where a

petitioner was innocent of facts underlying a finding that he was a habitual offender, which had resulted in a longer

prison sentence).

55 Richards, 5F.3d at 1371.

56 See Reid v. Oklahomah, 101 F.3d 628, 630 (1996) (finding that, because a person cannot be innocent of a non-

capital sentence per Richards, the petitioner’s challenge to his recidivist enhancement did fall within the scope of the

miscarriage of justice exception).

57 See United States. v. Mikalajunas, 186 F.3d 490, 494-95 (4th Cir. 1999) (exception applies to non-capital

sentencing cases in the context of challenges to sentences based on career offender findings); Haley v. Cockrell, 306

F.3d 257 (5th Cir. 2002) (deciding to align itself with the Fourth Circuit’s position). See infra Part II.B for a

discussion of the circuits that apply the actual innocence exception to non-capital sentencing where a challenge to a

career offender designation is being made.

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former.58

The Eighth Circuit relied on Richards’ reasoning and likewise refused to extend the

exception to non-capital cases in Embrey v. Hershberger.59 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.60

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.61 Instead, the Eighth Circuit stressed, the actual innocence exception concerns

factual, as opposed to legal, innocence.62 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.63 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.”64

58 See Reid, 101 F.3d at 630 (noting that the Oklahoma habitual offender statute merely adds a non-capital

enhancement to a sentence rather than setting out elements of an independent criminal offense).

59 Embrey, 131 F.3d at 740-41 (holding that Sawyer applies only to the sentencing phase of death cases and noting

its agreement with the Tenth Circuit).

60 Id. In Embrey, the petitioner argued that he was not eligible for his sentence under the Federal Kidnapping Act,

18 U.S.C. §1201 (2000).

61 Embrey, 31 F.3d at 741.

62 See id. at 741 (noting importance of maintaining focus on legal innocence); Sawyer, 505 U.S. at 339 (stressing

that the exception concerns factual, not legal, innocence).

63 Embrey, 131 F.3d at 741.

64 Cf. Smith, 477 U.S. at 537 (characterizing the actual innocence exception as a way around the barrier of

procedural default).

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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,65 the Eighth Circuit had found a

petitioner actually innocent of the sentence he had received in error when the state misapplied its

habitual offender statutes.66 Following the Supreme Court’s decision in Sawyer, the Eighth

Circuit questioned the validity of Jones but avoided overruling it.67 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. 68 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

65 929 F.2d 375, 377-81 (8th Cir. 1991).

66 Id. Jones was convicted under a habitual offender statute that was erroneously applied retroactively to him, as the

statute contained language restricting when it could be applied. Id . at 377-78. The court applied the actual

innocence exception to the petitioner’s procedurally defaulted habeas claim and noted that “[I]t would be difficult to

think of one who is more ‘innocent’ of a sentence than a defendant sentenced under a statute that by its very terms

does not even apply to the defendant.” Id. at 381.

67 See Sticha, supra note 13 at 1632 (discussing how, post-Sawyer, the Eighth Circuit considered Jones to still be

good law although language in Sawyer indicated that the actual innocence exception did not apply to non-capital

sentencing cases).

68 See Waring v. Delo, 7 F.3d 753, 757 (8th Cir. 1993) (discussing how the language in Sawyer that the concept of

actual innocence is easy to grasp in non-capital cases, implies that the Court was referring to the guilt or innocence

phase and was not intending to extend the exception to the sentencing phase of non-capital cases).

13

was referring to the crime itself. 69 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.”70 The

Eight and Tenth Circuits read this “simpler situation” to be the guilt phase of the non-capital

trial.71 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.72

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.”73 It asserted that the majority had

misread Sawyer74 and saw no valid reason to restrict the Sawyer analysis to cases challenging

capital sentences.75 The dissent boiled its argument down to the simple idea that one is either

69 See 740-741 (agreeing with the Tenth Circuit’s conclusion in Richards that the most natural inference to draw

from the Supreme Court’s language is that in non-capital cases the concept of actual innocence is ‘easy to grasp’

because it means the more commonly understood “innocence of the crime”).

70 Sawyer, 505 U.S. at 341.

71 Embrey, 131 F.3d at 740-41; Richards, 5 F.3d at 1371.

72 Richards, 5 F.3d at 1371; see Sticha, supra note 13 at 1634 (discussing the Tenth Circuit’s analysis of this Sawyer

language).

73 Embrey 131 F. 3d at 742 (Lay, J., dissenting). The dissent also pointed out that the court could have addressed the

merits of Embrey’s habeas motion regardless of the procedural default because doing so would serve the “ends of

justice.” Id. at 743. See supra note 52 for an explanation of how the actual innocence exception arose from the

statute’s “ends of justice” language.

74 See id. at 743 (emphasizing that the Supreme Court had never spoken directly on the subject by ruling that the

actual innocence exception did not extend to non-capital sentences and that Sawyer’s analysis did not expressly

restrict itself to cases involving capital sentences).

75 Id. at 743.

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eligible or ineligible for his or her sentence.76

B. 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.77 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.78 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.79 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.80 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

76 Id. at 744. (stating, “If an individual receives a sentence for which he or she is not eligible, the eligibility test

allows a court to reach the sentence and to correct or vacate that sentence.”) .

77 23 F.3d 888, 893 (4th Cir. 1994).

78 186 F.3d 490, 494-95 (4th Cir. 1999).

79 A probation officer had listed a conviction for a non-violent burglary conviction as one involving violence, since

Mayback himself had erroneously listed it this way. Maybeck , 23 F.3d at 890. This led to an erroneous finding by

the district court that Maybeck was a career offender, with no objection from Maybeck’s attorney. Id. at 891.

80 Id. at 893 (noting that 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).

15

actually innocent of the aggravating factors underlying a death sentence.81

Maybeck noted the lack of guidance from the Supreme Court on the issue of whether the

actual innocence exception applied to non-capital cases.82 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.83 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.84 Maybeck acknowledged that, by contrast, the Tenth

Circuit had flatly decided that the actual innocence exception should not extend to non-capital

cases.85

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.86 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

81 Id.

82 Id.

83 Id.

84 Maybeck , 23 F.3d at 893 (noting that in Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir. 1992), the Seventh Circuit

had applied the exception to habitual offender proceedings, and in Jones v. Arkansas, 929 F.2d 375, 381 (8th Cir.

1991), the Eighth Circuit had done the same).

85 Id. (citing Richards, 5 F.3d at 1371).

86 Id. at 893; see also Mary M. French, The Fourth Circuit: Adding to the Inter-Circuit Conflict, 7 FED. SENT . R.

237, 1-2 (noting that the scope of Maybeck was undefined).

16

that defendant has not followed the correct procedural route.87 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.88

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.89 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.90 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.91

At issue in Mikalajunas were not career offender guidelines (as in Maybeck) but

“enhancement of sentence” guidelines.92 Although the Fourth Circuit agreed that the petitioners’

87 See Maybeck , 23 F.3d at 892 (citing Engle v. Isaac, 456 U.S. 107, 135 (1982)) (stating that “[i]n a different

context, the United States Supreme Court has recognized that it is an unacceptable deviation from our fundamental

system of justice to automatically prevent the assertion of actual innocence simply because a defendant has not

observed procedural avenues available to him.”).

88 Mikalajunas, 186 F.3d at 494-95.

89 Id. at 495.

90 Id.

91 See id. at 495 (finding that a broader interpretation of Maybeck would conflict with Supreme Court authority

indicating that more than prejudice is needed to excuse a procedural default).

92 Id. at 496. The sentences had been enhanced because of a finding that they physically restrained the victim.

Mikalajunas’ brother, who was not a party to the habeas petition, pled guilty as an accessory to the murder

committed by the two petitioners. Id. He challenged the increase of his offense level based on a finding that he had

physically restrained of the victim. Id. The Fourth Circuit had agreed with him that the level of restraint used on the

victim did not meet the predicate for sentence enhancement because it did not add anything to the basic crime. Id.

17

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. 93

While Maybeck had been a unanimous panel decision, one of the judges on the

Mikalajunas three-judge panel wrote a vigorous dissent.94 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.95 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.96 Instead, he argued, the Supreme Court

developed the actual innocence exception for cases where prejudice is so severe that a

conviction97 or sentence98 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.99 Finally, Judge Murnaghan pointed out the

practical implications of the majority’s narrow reading of Maybeck in this case: the petitioners

93 Mikalajunas, 186 F.3d 490 at 492-93 (noting that the habeas petition was procedurally defaulted because the

petitioners failed to raise the issue of the imp roper sentence enhancement on direct appeal.).

94 Id. at 497 (Murnaghan, J., dissenting).

95 Id. at 498 (noting that the majority balked at applying Maybeck despite the absence of limiting language in

Maybeck that would prevent the application of the actual innocence exception to situations such as petitioners’

(situations other than career offender provision errors)).

96 Id. at 498.

97 Id. at 498 (citing Murray v. Carrier, 477 U.S. 486, 496 (1986)).

98 Id. (citing Sawyer, 505 U.S. at 336).

99 Id. at 499.

18

would remain in prison for one year and four years, respectively, longer than they should by

law.100

In Haley v. Cockrell,101 the Fifth Circuit recently joined the Fourth in its limited

application of the actual innocence exception to non-capital sentencing. 102 Haley pointed out

that the Supreme Court had never specifically foreclosed the application of the actual innocence

exception to non-capital sentencing cases.103 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. Collins104 and Sones v. Hargett,105 in which it had assumed (without

holding) that the actual innocence exception was available in a non-capital sentencing context.106

The second reason was to maintain the actual innocence exception’s “fundamental purpose.”107

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.108

Haley did not expand on its decision to restrict the actual innocence exception to only

100 Id. at 497 (Murnaghan, J., dissenting).

101 306 F.3d 257, 264 (5th Cir. 2002), rehearing denied 325 F.3d 569 (5th Cir. 2003), cert. granted sub nom Dretke

v. Haley, 124 S.Ct. 385 (U.S. Oct 14, 2003) (No. 02-1824).

102 Haley, 306 F.3d at 267.

103 Id. at 265.

104 977 F.2d 951, 959 (5th Cir. 1992).

105 61 F.3d 410, 413 (5th Cir. 1995).

106 See id. at 264 (noting that the Fifth Circuit had assumed in Smith and Sones that the actual innocence exception

was available in a non-capital sentencing context ) but had not yet specifically addressed the issue).

107 See id. at 264 (citing Herrera v. Collins, 506 U.S. 390, 404 (1993)) (stressing that the purpose of the exception is

“grounded in the equitable discretion” of the federal habeas courts to prevent the incarceration of innocent people”).

108 Id. at 267-68.

19

those non-capital cases where a career offender challenge was at stake.109 The court

subsequently denied a petition for rehearing en banc.110 Six judges dissented and wrote an

opinion that stressed the need for full consideration of the issue.111 The Haley dissent pointed

out conflicting language in Sawyer.112 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. 113 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. 114 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.’”115 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.”116 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.117

109 See id. at 264 (failing to explain why it chose to align itself with the Fourth Circuit’s restrictive view that the

exception applies to non-capital cases only in the context of habitual offender statutes).

110 325 F.3d 569 (5th Cir. 2003).

111 Id. at 569-72 ( Smith, J., dissenting).

112 Id. at 571-72 ( Smith, J., dissenting).

113 See supra notes 113-17 and accompanying text for a discussion of the relevant language in Sawyer.

114 Haley, 325 F.3d 569 at 572 (Smith, J., dissenting).

115 Id. (Smith, J., dissenting) (quoting Sawyer, 505 U.S. at 339).

116 Id. (Smith, J., dissenting) (quoting Sawyer, 505 U.S. at 340).

117 Id. at 572 (Smith, J., dissenting) (suggesting that, arguably, the Supreme Court would not have added the

qualifying phrases “in the capital sentencing context” or “in the setting of capital punishment” had it meant for the

exception to extend only to capital sentences).

20

C. 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.118 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.119

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.”120 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. 121

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 had pled guilty, and instead

receive youthful offender treatment.122 There was one condition—that Spence stay out of trouble

for two months.123 Failure to do so would mean a revocation of the judge’s offer and a sentence

of eight and one-third to 25 years.124

118 See Spence v. Superintendent, 219 F.3d 162 (2d. Cir. 2000) (emphasizing the function of habeas review in

correcting unjust incarcerations).

119 Id. at 170-71 (citing Smith v. Murray, 477 U.S. 527, 537-538 (1986)).

120 Id. (citing Schlup v. Delo, 513 U.S. 298, 320-321 (1992)).

121 Id.

122 Id. at 165.

123 Id.

124 Id. at 165-66.

21

Spence was re-arrested within the two months and charged with another robbery. 125

Before waiting to find out whether the arrest was legitimate, the court found that Spence had

broken his promise and sentenced him accordingly.126 However, he was later acquitted of the re-

arrest charge at trial.127 Although Spence had been acquitted of that robbery, the heavier

sentence was imposed before the charge was adjudicated.128

While Sawyer had set a high bar for the actual innocence exception in sentencing, the

Second Circuit found that the petitioner had reached it. 129 As required by the Supreme Court,

there must be “clear and convincing evidence that, but for a constitutional error, no reasonable

125 Spence, 219 F.3d at 165-66.

126 Id.

127 Id. at 166.

128 Id. at 165-66. (noting how since Spence was acquitted of the second robbery, he was in essence serving a

sentence for which he had not qualified).

129 Id. at 172 (holding that, based on the evidence of Spence’s guilt of the second robbery, no reasonable factfinder

could have found Spence guilty). In Spence, the Second Circuit transported this standard of proof into the non-

capital arena so that the standard was “clear and convincing evidence that no reasonable factfinder” would have

found the petitioner “guilty of the act on which his harsher sentence was based.” Spence, 219 F.3d at 172. At first

glance, the result makes it appear that the Second Circuit has conflated factual and legal innocence, that is, that the

court was equating the acquittal with actual innocence. But Spence was not just using the petitioner’s acquittal of

the second charge to find him “actually innocent.” Id. For his actual innocence, the Second Circuit points to his

acquittal at trial as well as his denial to the grand jury of the second crime, his alibi witnesses, the fact that one of the

two victims could not identify him in a lineup, the unreliability of the other witness, and the fact that the arresting

officer knew of his promise to the judge. Id. The totality of this evidence led to the conclusion that no reasonable

factfinder could have found Spence guilty of the acts underlying his harsher sentence. Id. The issue that ultimately

concerns this Comment is whether the defendant would have access to the actual innocence exception, since he was

challenging the grounds for a non-capital sentence, and not whether it was correctly applied in his case.

22

juror would have found the petitioner eligible for the death penalty.”130 Replacing “death

penalty” with “harsher sentence” the court found that Spence had met this standard and was

actually innocent of the prison term he was serving. 131

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.132 The court had not

previously addressed the issue directly, but had assumed arguendo in Glass v. Vaughn that the

actual innocence exception could extend to the degree of guilt determination. 133 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.134

III. Discussion

The federal circuits are treating capital and non-capital cases differently with respect to

actual innocence jurisprudence.135 This is inconsistent with the principle that the death penalty

130 Id. at 172 (citing language from Sawyer, 505 U.S. at 337).

131 Id. at 172 (concluding that no reasonable factfinder could have found that Spence committed a crime in violation

of his plea agreement that would have made him eligible for the prison sentence).

132 See Cristin v. Brennan, 281 F.3d 404, 421-22 (3d Cir. 2002) (summarizing the other circuits’ treatment of the

issue but retreating from making a decision on the basis that the petitioner was not actually arguing that he was

innocent of his sentence but was instead claiming to be innocent of the crime).

133 See Glass v. Vaughn, 65 F.3d 13, 16 (3d Cir. 1995) (considering whether the petitioner was actually innocent of

first degree murder and instead guilty of third degree murder).

134 See Cristin, 281 F.3d at 421 n.17 (noting that being actually innocent of a degree of guilt was arguably analogous

to being actually innocent of the sentence).

135 Compare Spence v. Superintendent, 219 F.3d 162 (2d Cir. 2000) (holding that the actual innocence exception

applies to non-capital sentencing with United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993) (holding that

one cannot be actually innocent of a non-capital sentence).

23

does not mandate a higher standard of review fo r federal habeas corpus.136 After Smith

recognized that the exception applies to capital sentencing, Sawyer set the standard of proof.137

Whether language in these two Supreme Court opinions reveals a contemplation of applying the

exception to non-capital sentencing is not the definitive inquiry. 138 Instead, other factors support

that view that the actual innocence exception applies to non-capital sentencing. 139

A. 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. 140 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.” 141 This implies that what the

136 See, e.g. Herrera v. Collins, 506 U.S. 390, 405 (1993) (rejecting petitioner’s contention that his case is different

because he has been sentenced to death); Murray v. Giarratano, 492 U.S. 1, 9 (1989) (plurality opinion) (insisting

that a death sentence does not require a different standard of review on federal habeas corpus); Sticha, supra note 13

at 1648 n.74 (suggesting that the application of the actual innocence exception to capital cases only does not make

sense in light of the notion that capital and non-capital cases do not warrant different standards of review).

137 See Smith v. Murray, 477 U.S. 527, 537-38 (1986) (applying the actual innocence exception to capital

sentencing); Sawyer v. Whitley, 505 U.S. 333 (1992) (defining the standard of proof as clear and convincing

evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the

death penalty).

138 See infra Part III.A for a discussion of the ambiguity of whether language in Smith and Sawyer contemplated

non-capital sentencing.

139 See infra Parts III.B and C for a discussion of the policy behind why the actual innocence exception should apply

to non-capital sentencing.

140 See supra notes 113-17 and accompanying text for an overview of the relevant Sawyer language.

141 Sawyer, 505 U.S. at 341.

24

Court had in mind in the context of non-capital cases was only the guilt stage.142

On the other hand, the Court implied in Smith that the actual innocence exception does

apply to non-capital sentencing. 143 First, Smith rejected the idea that a capital case should

command a lower threshold for overcoming procedural default.144 Smith instead suggested that

capital and non-capital cases are on equal footing with regard to procedural default

jurisprudence.145 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. 146 Smith

and Sawyer thus do not clearly indicate either way an opinion about the exception’s applicability

to non-capital sentencing.

B. 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.”147 In Sawyer, the Court was focused on keeping the actual innocence exception from

142 See supra notes 113-17 for a discussion of the relevant Sawyer language.

143 See Sticha, supra note 13 at 1635 (discussing how Smith may have implied that the actual innocence exception

applies to non-capital sentencing).

144 Smith, 477 U.S. at 538; see Sticha, supra note 13 at 1635 (noting Smith’s refusal to distinguish between capital

and non-capital cases for procedural default test).

145 See id. (rejecting the suggestion that miscarriage of justice principle applies differently depending on the nature

of the penalty the State imposes).

146 Id. at 539.

147 See Sawyer, 505 U.S. at 346-47 (explaining that the actual innocence exception be narrow by focusing on review

of objective factors like aggravating circumstances).

25

“amount[ing] to little more than what is already required to show ‘prejudice.’”148 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. 149 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.150 Rather,

Sawyer made clear that the inquiry of the federal judge confronted with the actual innocence

claim should focus only on objective factors.151 As such, the Court confined the inquiry to the

elements of the offense and the aggravating circumstances.152 In this way, the Court

accomplished its goal of keeping the exception a narrow one.153

In characterizing the exception as “narrow,” Sawyer focused on the need to use objective

standards to determine whether a petitioner had met the exception, rather than how broadly the

exception was to be applied.154 It is possible to maintain this focus on objectiveness while

148 See id. at 345 n.13 (concluding that were a showing of actual innocence reduced to actual prejudice, it would

evade the cause-and-prejudice standard altogether).

149 See id. at 343-46 (worrying that extending the inquiry to all three factors would reduce the actual innocence

exception to a showing of prejudice showing).

150 See id. at 346. (stressing its opposition to the idea of a federal judge “assess[ing] how jurors would have reacted

to additional showings of mitigating circumstances”).

151 Id.

152 See Sawyer, 505 U.S. at 346-347 (rejecting the petitioner’s suggestion that the relevant inquiry include the

elements of the crime, and both the aggravating and mitigating circumstances and instead confining it to the

elements of the offense and the aggravating circumstances).

153 Id. at 345.

154 Id. at 341 (explaining that the actual innocence exception is “very narrow” such that “to make it workable it must

be subject to determination by relatively objective standards.”).

26

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.155

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.156 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.157 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. 158

C. 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.159 While a death sentence is

for obvious reasons uniquely dire, requiring a prisoner to serve a longer sentence than he is

155 See supra notes 184-87 and accompanying text for a discussion of how career offender determinations are

analogous to death eligibility determinations.

156 See Maybeck , 23 F.3d at 894 (noting that an examination of a defendant’s past criminal history to determine

whether he fits the statutory definition of career offender is an objective guideline inquiry).

157 See Embrey v. Hershberger, 131 F.3d 739, 742 (8th Cir. 1997) (Lay, J., dissenting) (arguing that the actual

innocence exception be applied to non-capital sentencing cases because one is at bottom either eligible or not

eligible for the sentence he has received).

158 Common sense does have a significant place in the law. See Mapp v. Ohio, 367 U.S. 643, 657 (1961) (stating

that the common sense is not at odds with the Constitution).

159 See Embrey, 131 F.3d at 744, (Lay, J., dissenting,) (comp aring case law applying the statutory ends of justice

inquiry, and the common law miscarriage of justice test, to both capital and non-capital cases).

27

legally required to should constitute a miscarriage of justice.160 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.”161 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.162 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.163

Courts are forgetting the roots of the actual innocence doctrine, which was heavily

influenced by Judge Friendly’s 1970 article.164 The article proposed the actual innocence

doctrine as a way to refocus the federal habeas courts and limit the reach of the writ.165 Friendly

160 Id. at 745.

161 Engle v. Isaac, 456 U.S. 107, 135 (1982).

162 See United States. v. Mikalajunas, 186 F.3d 490, 494 (4th Cir. 1999) (describing how the actual innocence

exception would swallow the cause-and-prejudice rule).Id. at 499 (Murnaghan, J., dissenting).

163 Id. at 497 (Murnaghan, J., dissenting).

I want to make clear what results from the majority opinion. The Appellees, the government, the

lower court, and the majority all agree that because of a misapplication of the sentencing

guidelines, one of the Appellees will be in jail for over one year longer than the sentence provided

by law, the other Appellee will be in jail for over four years longer than the sentence provided by

law… I do not believe that the state’s interest in finality outweighs even one year of a man’s life.

Id. at 497 (Murnaghan, J., dissenting).

164 See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (adopting Judge Friendly's proposed innocence standard).

Friendly, supra note 67.

165 See Friendly, supra note 67 at 142-45 (arguing that the then broad availability of habeas corpus procedure should

be reined in by focusing more on the issue of whether the petitioner may be innocent, an issue Friendly found

inappropriately absent from habeas petitions).

28

argued that postconviction collateral attack should be available only when the prisoner pairs his

constitutional claim with a “colorable claim of innocence.”166 To this end, Friendly proposed a

probability standard.167

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.168 The actual innocence exception was

meant to narrow the availability of the writ.169 Its original purpose stands in stark contrast to

subsequent fear that it will expand availability of the writ.170

IV. 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.171 As such, a look at the Court’s bigger message is warranted.

166 Friendly, supra note 67 at 142.

167 See Friendly, supra note 67 at 160 (summarizing the probability standard as “a fair probability that, in light of all

the evidence, including that alleged to have been illegally admitted (but with due regard to an unreliability of it) and

evidence untenably claimed to have been wrongly excluded or to have become available only after the trial, the trier

of facts would have entertained a reasonable doubt of his guilt.”).

168 See Kuhlmann, 477 U.S. at 454 & n.17 (proposing a focus on innocence as a way to cut the costs to the state that

liberal allowance of the writ causes); but see Zheng, supra note 53 at 2119 (criticizing Friendly’s proposal as out of

sorts with the idea that since habeas corpus protects the constitutionality of the criminal process, guilt or innocence

should be irrelevant).

169 See Kuhlmann, 477 U.S. at 454 (adopting actual innocence as a way to limit availability to those habeas

petitioners justified in again seeking relief from their incarceration).

170 See, e.g. Mikalajunas, 186 F.3d at 494 (fearing that allowing the actual innocence exception to apply to non-

capital sentencing would swallow the cause-and-prejudice rule).

171 See supra Part III.A for a discussion of Smith and Sawyer’s ambiguity. See supra notes 113-18 and

accompanying text for a discussion of the relevant language.

29

Sawyer stressed that the exception remain a narrow one. 172 Sawyer refined the actual innocence

exception in the context of capital sentencing by confining the inquiry to aggravating

circumstances and elements of the offense. 173 It specifically excluded mitigating factors from

the equation because this would force the habeas courts to review subjective factors.174 Thus,

when the Sawyer court said “narrow,” it meant “objective.”175 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.176 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.”177 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.178 To remedy this, Judge Lay’s

172 Id. at 341 (characterizing the actual innocence exception is “very narrow”).

173 See Sawyer, 505 U.S. at 346-347 (rejecting the petitioner’s suggestion that the relevant inquiry include the

elements of the crime, and both the aggravating and mitigating circumstances and instead confining it to the

elements of the offense and the aggravating circumstances).

174 See id. at 346. (stressing its opposition to the idea of a federal judge “assess[ing] how jurors would have reacted

to additional showings of mitigating circumstances”).

175 Id. at 341 (explaining that the actual innocence exception is “very narrow” such that “to make it workable it must

be subject to determination by relatively objective standards.”).

176 See Kuhlmann, 477 U.S. at 454 (adopting actual innocence as a way to restrict availability to those habeas

petitioners justified in seeking relief from their incarceration).

177 Engle v. Isaac, 456 U.S. 107, 135 (1982).

178 Maybeck , 23 F.3d at 893.

30

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.179

179 See Embrey 131 F. 3d at 742 (Lay, J., dissenting) (advocating eligibility test). See supra notes 120-21 for a

discussion of this approach.