Supreme Court Preview: Justice and Equity for Criminal Defendants

The Supreme Court will hear two cases next week that raise important questions of justice and equity for criminal defendants.

February 19, 2013

We preview below two cases to be argued before the Supreme Court on February 25 and 26 that raise important questions of justice and equity for criminal defendants.

McQuiggin v. Perkins[1], to be argued on February 25, 2013, raises the question whether a habeas petitioner can avoid application of the statute of limitations by presenting credible evidence that he is innocent of the crime for which he was convicted.

Peugh v. United States,[2] to be argued on February 26, 2013, raises the question whether a criminal defendant may be sentenced under federal sentencing guidelines enacted after his offense if application of the post-offense guidelines likely will result in a longer sentence than application of the guidelines in place at the time of his offense.

McQuiggin v. Perkins

McQuiggin v. Perkins presents the question whether, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”

Background

Respondent Floyd Perkins was convicted of first degree murder based largely on the testimony of an alleged eyewitness, Damarr Jones. Following exhaustion of his appeals, Perkins’ conviction became final on May 5, 1997. Under AEDPA’s one-year statute of limitations, Perkins had until May 5, 1998 to file a petition for a writ of habeas corpus in the district court for Western District of Michigan. He failed to do so.

On June 13, 2008, more than a decade after the expiration of AEDPA’s statute of limitation, Perkins filed a habeas petition challenging his conviction on several different grounds, including insufficient evidence, an improper jury instruction, prosecutorial misconduct, and ineffective assistance of counsel. A magistrate judge recommended that that the petition be denied as time-barred under AEDPA. Perkins objected. In his objections, Perkins introduced for the first time three affidavits suggesting that he was innocent and that Jones, the supposed eyewitness, actually committed the murder.

Based on these affidavits, Perkins argued first that AEDPA’s statute of limitations for claims based on newly discovered evidence—which begins running when the evidence is discovered—should apply. That statute would have expired on June 16, 2003, a year after the last affidavit was signed. Perkins also argued that the statute should be equitably tolled because he is actually innocent. The Supreme Court has held that AEDPA’s statutes of limitations are not jurisdictional.[3] The Sixth Circuit had previously established in Souter v. Jones that “where an otherwise time-barred habeas petitioner can demonstrate that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying constitutional claims.”[4]

The district court overruled Perkins’ objection and adopted the magistrate judge’s report and recommendation. The court held that Perkins’s new evidence was not of the sort supporting an actual innocence claim because “his alleged newly discovered evidence was substantially available to him at trial.”[5] Moreover, the court determined that even if Perkins had adduced the type of evidence that would satisfy the actual innocence standard, his claims would still be barred because he had not pursued them with reasonable diligence.[6] Relying on the Supreme Court’s decision in Pace v. DiGuglielmo,[7] the district court determined that a petitioner seeking equitable tolling of AEDPA’s statute of limitations must show that he has diligently pursued his rights. Perkins sought a certificate of appealability from the Sixth Circuit, which certified appeal of the question whether reasonable diligence is a precondition to relying on actual innocence to toll the statute of limitations.

On appeal, the Petitioner-Warden asked the Sixth Circuit to overrule its decision in Souter as inconsistent with recent Supreme Court precedent in Holland v. Florida[8]. In Holland, the Supreme Court held that the AEDPA statute of limitations was not equitably tolled by a petitioner’s attorney’s professional negligence in failing to timely file a habeas petition.[9] In ruling on Mr. Perkins’ appeal, the Sixth Circuit in held that “nothing in Holland calls our analysis in Souter into question.”[10] In so holding, the court noted that “actual innocence as a basis for equitable tolling of a statute of limitation was firmly part of the post-conviction relief jurisprudence when Congress enacted AEDPA, and there is a presumption that Congress legislates against the background of existing jurisprudence.”[11] In addition, the court noted that the majority of Courts of Appeals that have considered the question held that equitable tolling for actual innocence survived Holland.[12]

In the alternative, the Petitioner argued before the Sixth Circuit that even if Souter remained good law, it should be modified to include a reasonable diligence requirement. In Holland, the Supreme Court held that “a petitioner is entitled to equitable tolling only if he shows . . . that he has been pursuing his rights diligently.”[13] The Sixth Circuit noted the tension between Holland and the Supreme Court’s jurisprudence considering actual innocence as a gateway to pursue otherwise defaulted claims. Based on the Supreme Court’s “rich jurisprudence protecting those that may be wrongfully imprisoned,” the Sixth Circuit determined that Holland did not apply to actual innocence cases and that equitable tolling for actual innocence does not require a showing of reasonable diligence.[14] Accordingly, the Sixth Circuit reversed the district court’s ruling to the extent that it required reasonable diligence and remanded for the district court to determine whether Perkins asserted a credible claim of actual innocence. The Warden sought Supreme Court review, which was granted.

Before the Supreme Court, the Petitioner argues both that AEDPA does not permit equitable tolling based on actual innocence and that, if such tolling is permitted, it should include a reasonable diligence requirement.

First, the Petitioner argues that AEDPA directly addresses Perkins’ case, providing a one year limitation period for newly discovered evidence running from the time of discovery of the new evidence.[15] While the Petitioner recognizes that AEDPA does not “displace courts’ traditional equitable tolling authority absent the clearest command,”[16] the Petitioner argues that no traditional equitable tolling doctrine provided for indefinite tolling of habeas claims based on new evidence. Moreover, the Petitioner argues that indefinite equitable tolling in connection with habeas petitions challenging state court convictions would improperly impinge on federal-state relations.

Second, the Petitioner argues that any equitable tolling must include a reasonable diligence requirement. The Petitioner argues that courts have traditionally required convicted defendants to present new evidence in a diligent manner and notes that in every case in which the Supreme Court has permitted a petitioner to use an actual innocence claims as a gateway to review of a federal constitutional violation, the petitioner had raised the claim in a diligent manner.

Finally, Petitioner argues that there is no need to create a federal remedy for Perkin here because he has alternate state-law remedies available. For example, Petitioner notes that Michigan state law permits a convicted defendant to file successive motions seeking relief from judgment based on new evidence, and to do so without any time limitation. And Petitioner also notes the availability of executive clemency in the absence of a judicial remedy.

Perkins responds that habeas corpus jurisprudence has always included a miscarriage of justice exception to any procedural rules or limitations on habeas relief and that AEDPA incorporated that exception. Perkins argues that this conclusion is supported by both Holland and the structure and purpose of AEDPA. First, Perkins notes that Holland recognized the presumption that non-jurisdictional limitations periods, like AEDPA’s, are subject to equitable tolling absent the clearest congressional command. And Perkins argues that AEDPA does not evidence any Congressional intent to abrogate the pre-existing rule allowing for equitable tolling in the case of miscarriages of justice. Indeed, Perkins argues, the structure of the AEDPA is to the contrary. AEDPA expressly required both clear-and-convincing proof of innocence and reasonable diligence in the case of successive petitions and evidentiary hearings. Perkins argues that Congress’s decision to modify the actual innocence or miscarriage of justice exception in those two contexts evidences an intent to leave it unchanged in other contexts.

In addition, Perkins argues that the miscarriage of justice exception has never included a reasonable diligence requirement and that reading one into the exception would conflict with its purpose, which was to provide a safeguard for victims of such miscarriages who could not otherwise show cause and prejudice. Finally, Perkins rightly rejects Petitioner’s arguments based on alternate state remedies. Perkins notes that the availability of federal habeas relief has never rested on the availability of parallel state relief. Moreover, while certain alternate remedies may be available to Perkins in Michigan, Petitioner argues for a general rule applicable to all habeas petitioners. Such a rule plainly cannot be grounded on remedies available to a particular petitioner in one state.

The writ of habeas corpus is at its heart an equitable remedy and the greatest tool for correcting constitutional error in criminal proceedings. While AEDPA certainly narrowed the availability of habeas relief, the Court should not read the law to prevent courts from considering the merits of petitions brought by defendants claiming to be innocent of the crimes for which they were convicted. Neither the text of AEDPA nor the Supreme Court’s jurisprudence dictates such an unjust result.

Peugh v. United States

In Peugh v. United States, the Court will consider whether a sentencing court violates the Ex Post Facto Clause by relying on the Sentencing Guidelines in effect at the time of sentencing rather than at the time of the offense, if doing so creates a significant risk that the defendant will receive a longer sentence.

Petitioner Marvin Peugh was convicted after a jury trial of five counts of bank fraud, sentenced to 70 months imprisonment, and ordered to pay nearly two million dollars in restitution. He was sentenced under the 2009 U.S. Sentencing Guidelines rather than the 1999 Guidelines in effect at the time of his offenses. Under the 2009 Guidelines, the advisory sentencing range for Peugh’s offenses was 20 months longer than it had been under the 1999 Guidelines. Peugh objected to the district court’s reliance on the 2009 Guidelines. That objection was overruled. Peugh then appealed his sentence to the Seventh Circuit on the ground that his sentence violated the ex post facto clause of the Constitution. Relying on its previous holding in United States v. Demaree[17], the Seventh Circuit ruled that the fact that the Guidelines are advisory “vitiates any ex post facto problem.”[18]

Before the Supreme Court, Peugh now argues that the Ex Post Facto Clause forbids retroactive application of any law going into effect after the commission of a crime if such application would create a significant risk of increasing the punishment for an offense. Peugh argues that the application of the Clause rests on the practical operation of the new law in the context of the sentencing system as a whole. While the Supreme Court in Booker[19] made the Guidelines advisory, Peugh argues that the practical effect of the post-Booker Guidelines is that actual sentences tend to be within or very near the Guidelines sentencing range. Indeed, district courts must seriously consider the applicable Guidelines range and provide reasons for deviating from them. Accordingly, Peugh argues, the application of the 2009 Guidelines in his case almost certainly resulted in a longer sentence and, as a result, violated the Ex Post Facto Clause.

The United States responds that the Ex Post Facto clause only prohibits application of post-offense laws that “increase the penalty by which a crime is punishable.”[20] The Sentencing Guidelines do not increase the penalty because they are only advisory, representing “the Sentencing Commission’s most up-to-date, non-binding advice about best practices in federal sentencing.”[21] In considering post-offense Guidelines, a sentencing court is simply considering “post-offense penological data and sentencing-policy perspectives.”[22]

The government’s overly formalistic arguments ignore the practical reality of federal sentencing practices. Federal district courts still rely heavily on the Guidelines in crafting appropriate sentences. As the Petitioner demonstrated in his brief, the vast majority of federal sentences are within the applicable Guidelines range. It seems clear that the Petitioner’s own sentence is significantly longer than it would have been had the earlier Guidelines been approved. The Ex Post Facto Clause should properly be understood to bar such a result.


[1] No. 12-126.

[2] No. 12-62

[3] Day v. McDonough, 547 U.S. 198 (2006).

[4] Souter v. Jones, 395 F.3d 577, 602 (6th Cir. 2005).

[5] Perkins v. McQuiggin, No. 2:08–CV–139, 2009 WL 1788377, at *3 (W.D. Mich. June 18, 2009).

[6] Id.

[7] 544 U.S. 408 (2005).

[8] __ U.S. __. 130 S.Ct. 2549 (2010).

[9] Id.

[10] Perkins v. McQuiggin, 670 F.3d 665, 671 (6th Cir. 2011).

[11] Id. (internal citation and quotation marks omitted).

[12] Id.

[13] 130 S.Ct. at 2562.

[14] 670 F.3d at 674.

[15] 28 U.S.C. §2244(d)(1)(D).

[16] See Holland, 130 S.Ct. at 2560-61.

[17] 459 F.3d 791, 795 (7th Cir. 2006).

[18] United States v. Peugh, 675 F.3d 736 (7th Cir. 2012).

[19] United States v. Booker, 543 U.S. 220 (2005).

[20] Cal. Dep’t Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995).

[21] Resp. Br. at 9.

[22] Id. at 10.