Federal Habeas and Actual Innocence Standard

As the reader of this article may already know or suspect, a federal petition for a writ of habeas corpus is limited to one such petition per person.  In other words, one cannot file a second or successive petition.  

“(2) A claim presented in a second or successive habeas corpus application under § 2254 that was not presented in a prior application shall be dismissed unless -  (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (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 applicant guilty of the underlying offense.”

Subsection (ii) is referred to as the “actual innocence” exception.  In Schlup v. Delo (1995) 513 U.S. 298, the Supreme Court explained that such an exception must fall “within the narrow class of cases implicating a fundamental miscarriage of justice” and that such a case must be “extraordinary” and “rare.”

To exemplify how this standard is applied, one need look no further than the recent (December 4, 2023) ruling from the United States Court of Appeal for the Ninth Circuit in Jaime Dean Charboneau v. Tyrell Davis, Warden of the Idaho State Correctional Institution.  While the case concerned a case arising out of Idaho, it was within the Ninth Circuit, so the ruling applies to matters arising in California, which is also within the Ninth Circuit.

Mr. Charboneau was convicted in Idaho state court of the 1984 shooting murder of his ex-wife after a trial that included inculpatory testimony from both of his ex-wife’s daughters.  Mr. Charboneau was then sentenced to death, although this was later vacated on appeal and then sentenced to life in prison.  

He thereafter filed a petition for a writ of habeas corpus in federal court, alleging ineffective assistance of counsel.  That first petition was denied.

In 2011, Mr. Charboneau received a mysterious envelope from a correctional officer.  The contents included a photocopy of a letter written by one of his ex-wife’s daughters to the judge who presided over Mr. Charboneau’s murder trial.  The letter was accompanied by an envelope addressed to the judge and postmarked September 7, 1989.  The letter told the judge that police and prosecutors pressured her to give false testimony regarding the circumstances of her mother’s death and that “some of the things in [her] statements to the police were not all true.”

Mr. Charboneau then filed a second petition for a writ of habeas corpus in federal court, alleging that the new evidence was, under 28 U.S.C. § 2244(b)(2), proof of actual innocence.

The district court denied the motion, finding that Mr. Charboneau failed to show actual innocence.

Mr. Charboneau then appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the district court.  The Ninth Circuit explained that demonstrating innocence means that the new facts “if proven and viewed in the 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 could have found the applicant guilty.” Cooper v. Woodford (2004) 358 F. 3d 1117.

Here, the contents of the letter from the daughter of the victim were contradicted by other evidence in the record including forensic evidence, the testimony of the daughter’s husband, the testimony of the other daughter and, most importantly, Mr. Charboneau’s own version of events.  Moreover, there was other evidence suggesting Mr. Charboneau was guilty, including a prior conviction for kidnapping and a prior rifle purchase was, the Ninth Circuit explained, “overwhelming.”  In other words, a reasonable fact finder still could have convicted Mr. Charboneau of first degree murder even with consideration of the letter.