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Subject: Help. Factual innocence in federal habeas defaults

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              What does “factual innocence” actually mean in the context of federal habeas corpus for a Nevada state prisoner facing successive and timeliness defaults when challenging the constitutionality of the criminal stature that their conviction is based on?

To establish a colorable claim of “actual innocence,” one must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Bousley v. United Stated, 523 U.S. 614, 623 (1998); Kuhlman v. Wilson, 477 U.S. 436, 454 n. 17 (1986). “Actual innocence” means factual innocence, not mere legal insufficiency. Bousley, supra.

              So what good is any evidence at all if the prisoner discovers a substantive defect in the part of the criminal statute that distorts deciding guilt from innocence based on the evidence used to convict? Can’t you just make an actual innocence claim on the constitutionality of the part of the statute that placed the evidence/facts in the wrong light causing the conviction? What good is any evidence (new, old, or otherwise) when it is measured through the unconstitutional lens of a suspect criminal statute? Does anyone see this paradox? How does one get through defaults in these circumstances?

              The Bousley case is the only opinion and resource I can find that remotely comes close to addressing this question. While Bousley’s habeas was pending before the Circuit Court of Appeals, the U.S. Supreme Court in Baily v. United States clarified the term “use” in 18 U.S.C. § 924©(1)

which placed the evidence and facts of Bousley’s conduct beyond the reach of prohibited conduct for his conviction under that statute.

              On certiorari, the U.S. Supreme Court applied the legal rational of the Baily case to Bousley without the introduction of any new evidence or facts about his crime. In other words, the case was decided in Bousley’s favor purely on questions of law. Interestingly this was considered “factual innocence” rather than “legal innocence” by the Bousley Court.

 In Baily v. United States, there was no habeas corpus implicated with procedural bars or defects. What if Baily v. United State was never decided and Bousley simply made the same legal argument as made in Baily to demonstrate “factual innocence?” Would that also overcome his procedural defaults? It would appear that such a claim would be consistent with the doctrinal underpinning of habeas corpus where refusing to consider such a claim would carry a “significant risk that a defendant stands convicted of an act that the law does not make criminal.” Bousley, 523 U.S. at 620-21. See also Wilson, 477 U.S. at 455 (observing that a colorable claim of factual innocence is meritorious if it will “raise any question as to his quilt or innocence.”) (emphasis added); Murray v. Carrier, 477 U.S. 478. 495-96 (1986) (“the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration” especially when the claim “call into question the reliability of an adjudication of legal guilt.”) (emphasis added).

To simply wait around until another case is eventually decided, if ever, by another prisoner’s procedurally sound habeas corpus or timely direct appeal addressing the same issue so that other prisoners sitting in default for needless decades can take advantage of the new ruling seems fundamentally unjust.

              I cannot find any opinions, law articles, or treatises on point with this issue anywhere. The Bousley case is the closest I have found. Everything I have read discuss the discovery of new, overlooked, or wrongly excluded evidence/facts. Does anyone out there have any references they can share with me that squarely and possibly authoritatively address this topic?

              If you need additional details, then read the Bousley opinion and put yourself in his place. How would you overcome his procedural defaults if the Baily opinion did not exist? Procedural defaults should not be used as tools to convert an unlawful restriction of liberty into a lawful one. You can’t just let a manifestly unjust conviction ride out when the Court acted in excess of its jurisdiction to convict.


Thank you

Edited by FindLaw_Kevin
This post has been edited to remove personal or identifying information. - Moderator

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We are looking for the same case I think. An unconstitutional statute of conviction should equal factual innocence, like eating a cheeseburger at McDonald's should not be a death sentence.

Please let me know if you find it. Prolly have to come out of the u.s. supreme court to force Nevada to comply.

A new case says that constitutional challenge is not waived by a guilty plea. I think it was class v. us (2018).

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3 hours ago, Larry said:

Thought I said I was looking for the same case. Why, you didn't like it?


Huh?  If you're talking about Class v. U.S., you can read it here.



15 hours ago, Larry said:

An unconstitutional statute of conviction should equal factual innocence


That makes no sense.



15 hours ago, Larry said:

eating a cheeseburger at McDonald's should not be a death sentence.


It isn't.



15 hours ago, Larry said:

Please let me know if you find it.


Who?  The OP who started this thread four and a half years ago, and who didn't get any responses at the time?  If you click on the OP's screen name, you'll see that he/she posted at this site as recently as April 2018.  Perhaps you ought to send him/her a private message.

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Found a recent Virginia law review that details the subject quite well. 

If this too complicated or stale for you I suggest you don't respond and yes I was hoping to contact the original poster.

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