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Federal Habeas Corpus: How to Raise an Actual Innocence Claim

by Dale Chappell

Believe it or not, someone proving they’re “actually innocent” of their criminal offense is not enough to win federal habeas corpus relief. That’s because actual innocence, by itself, is not a constitutional violation to allow for federal habeas relief. Instead, it’s only the first step toward relief, and there must also be an underlying constitutional claim. Here’s how to raise a successful actual-innocence habeas claim.

What Is Actual Innocence?

Typically, actual (or factual) innocence arises after the discovery of “new reliable evidence” that creates a “sufficient probability” that there’s reasonable doubt as to a habeas petitioner’s guilt. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has also made clear that actual innocence means “factual innocence,” as opposed to mere legal innocence. Bousley v. United States, 523 U.S. 614 (1998).

The difference between actual and legal innocence is subtle. In its broadest sense, actual innocence means that the petitioner is factually innocent of the crime for which he has been convicted because the factfinder erred in concluding what the petitioner did based on the fact he did not commit the crime or he could not have committed the crime. See McQuiggin v. Perkins, 569 U.S. 383 (2013); see also Nancy J. King & Joseph L. Hoffmann, Habeas for the Twenty-First Century: Uses, Abuses, and the future of the Great Writ 91 (2011). An example of the former variety of actual innocence is when a petitioner has been convicted of rape, but subsequent DNA test results prove that the petitioner’s DNA does not match the DNA found on the victim.  

Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), presents the latter type of actual innocence. The Court granted habeas relief because the petitioner’s conduct was purely intra-state and thus not a federal offense – that is, his conduct was not, in fact, a violation of RICO because his conduct did not affect interstate commerce, which is an element of a RICO violation, and thus he could not have committed a RICO violation. Because all the relevant elements of the offense could not be proven beyond a reasonable doubt, he had a valid factual innocence claim.

In contrast, legal innocence involves situations in which no valid criminal statute forbids the petitioner’s conduct or provides the basis for the petitioner’s sentence. See Montgomery v. Louisiana, 136 S. Ct. 718 (2016); Welch v. United States, 136 S. Ct. 1257 (2016). That is, there was an error regarding what the criminal law prohibits or could prohibit with respect to the petitioner. What petitioners need to know is that courts rarely grant habeas relief for legal innocence claims. 

The circuits are split over what exactly counts as “new reliable evidence” under Schlup. See Wright v. Quarterman, 470 F.3d 581 (5th Cir. 2006) (collecting cases on circuit split). “Admittedly, courts have struggled to define what qualifies as new evidence. Some courts treat all evidence as new so long as it was not presented at trial. Other courts maintain that evidence is new only if it was unavailable at the time of trial.” Lowery v. Parris, 819 Fed. Appx. 420 (6th Cir. 2020).

But the new evidence isn’t evaluated in a vacuum. The Supreme Court has instructed that “all the evidence” in a case must be considered, both old and new, when weighing an actual innocence claim. House v. Bell, 547 U.S. 518 (2006). And the habeas court isn’t “barred by the rules of admissibility that would govern at trial,” the Court has said. Schlup. However, once the actual innocence claim opens the habeas door for the underlying constitutional claim, any evidence subsequently considered by the court must be admissible under the rules of evidence. Bousley.

The Standard for Proving
Actual Innocence

There are two different standards for showing actual innocence in federal habeas corpus. The standard for a first-in-time motion, or one that’s not considered “second or successive” (“SOS”), is whether “it is more likely than not that no reasonable juror would have convicted” the petitioner. Bousley. This was referred to as the “probable innocence” standard in Schlup.

The actual innocence standard for SOS petitions, however, is much steeper. For a state petitioner, the law requires:

“(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 [habeas] applicant guilty of the underlying offense.” 28 U.S.C. sec 2244(b)(2)(B)

For a federal petitioner, the bar is just as high:

“Newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilt of the offense[.]” 28 U.S.C. sec 2255(h)(1)

The bar for SOS petitioners is high because a showing by “clear and convincing evidence” is more onerous than the more-likely-than-not standard for a first petition. Clear and convincing evidence is like a two-thirds majority in Congress; whereas, more-likely-than-not is like a simple majority or just over 50%. And the Supreme Court noted in Schlup that Congress’ use of the word ‘would,’ instead of ‘could,’ in determining that “no reasonable factfinder would have found the applicant guilty” points to the “likely behavior” of the factfinder (juror or judge), where the word ‘could’ points to the “power” of the factfinder to find someone is innocent. This is an important distinction, the Court said.

It’s also not just the offense of conviction that matters for actual innocence but also any charges that were dropped as part of the plea deal. “In cases where the government has forgone more serious charges in the course of the plea bargaining, petitioner’s showing of actual innocence must also extend to those charges,” the Court said in Bousley. Congress has since codified this requirement in 18 U.S.C. § 3296.

What Constitutes an Actual Innocence Habeas Claim?

As alluded to at the beginning of this column, actual innocence is not a valid habeas claim — at least not by itself. There must be some underlying constitutional violation related to the actual innocence claim that would allow for federal habeas relief. As the Supreme Court said in Schlup “Schlup’s claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims.”

But that was dicta, and the Supreme Court has avoided directly addressing the question of whether a “freestanding” actual-innocence claim could ever form the basis for habeas relief. One case, again in language that was not the holding of the Court, provided a clear suggestion that it would not. In Herrera v. Collins, 506 U.S. 390 (1993), the Court agreed that a petitioner’s actual innocence claim is enough to avoid a procedural bar to habeas relief for his underlying constitutional claim, but it rejected any notion that it could be a valid claim itself, stating: “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. [That is because] this rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact.”

The Herrera Court further reasoned that a federal habeas court deciding a factual issue, such as an actual innocence claim, and undoing a state-court decision “would be more disruptive to our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” The Court’s reasoning has not gone without much criticism by scholars and advocates of those wrongfully imprisoned, however. See, e.g., Berg, Nicholas. “Turning a Blind Eye to Innocence: The Legacy of Herrera v. Collins.” 42 Am. Crim L. Rev. 121 (2005). Instead of habeas relief, the Court said that the “traditional remedy” for actual innocence claims has been “executive clemency.”

Actual Innocence Is a Gateway Through a Procedural Bar

The way an actual innocence claim works in federal habeas corpus is that it “serves as a gateway through which a petitioner may pass” to have his otherwise-barred constitutional claims heard. Perkins. The Court cited several habeas procedural bars that it has excused because of actual innocence, including procedural-default for failing to raise a claim earlier, the bar on SOS petitions, the bar on federal evidentiary hearings, and state procedural bars.

The Perkins Court established the standard required to avoid a procedural bar with an actual innocence claim, viz.: “A petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” The Court also added that an “unjustified delay” is a factor the habeas court must consider with an actual innocence claim but didn’t define what that meant.

Where to File an
Actual Innocence Claim

As with most habeas claims, the starting point is almost always in the federal district court. See §§ 2255(a) and 2254(a). However, an actual innocence claim in a SOS petition must be authorized by the court of appeals and must meet the more demanding “clear and convincing” standard. §§ 2244(b)(2)(B) and 2255(h)(1). But don’t forget about the Supreme Court. Both state and federal petitioners may file an original petition for habeas relief in the Supreme Court. For example, in In re Davis, 557 U.S. 952 (2009), the Court agreed that the petitioner’s claim of actual innocence was compelling enough that it “transferred” the habeas petition to the district court for a hearing on the actual innocence claim based on newly discovered evidence.

While the opinion was just one short paragraph, the Court reaffirmed what it said in Schlup: “Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of the criminal justice system.”


The bar for actual innocence habeas claims is high. The key is to understand that an actual innocence claim is the trailblazer for the underlying constitutional claim. Put the proper emphasis on each claim, and you’ll succeed with an actual innocence habeas claim in federal court.

Editor’s note: For an informative and in-depth examination of legal innocence, see Litman, Leah. “Legal Innocence and Federal Habeas.” Virginia Law Review 104, no. 3 (2018): 417-495. The Abstract explains: “The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. This Article highlights how the doctrine has started to treat these ‘legal innocence’ cases as cases in which defendants are innocent, as well as the reasons why it has done so. As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate. These cases raise similar concerns and implicate many of the same features of our criminal law system. By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.” 

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