In McQuiggin v. Perkins the Supreme Court, last month, made a small hole in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), passed in the wake of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which practically abolished the writ of habeas corpus. In 2004 the Federal courts granted writs of habeas corpus in only 4 per cent of the writs filed in death penalty cases and in only 0.45 per cent of all petitions for the writ filed according to Cornell law professor John Blume.

The AEDPA sets a one year statute of limitations for the bringing of a writ of habeas corpus from either the date that a conviction becomes final after the direct appeal or from the date that newly discovered evidence could have been found if it is not discovered until after the conviction becomes final.

In Perkins, the Court ruled that the one year statute of limitations does not apply if the defendant claims actual innocence. But it set severe limits on the exception. The petitioner will have to show “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Apparently it will become a two step process. First a judge will have to hold a hearing on whether the defendant has strong evidence of innocence. If the defendant passes this barrier then the court will hold a second hearing on the writ of habeas corpus. While the one year statute of limitations will not be an absolute bar to the granting of the writ, the judge may take into consideration the length of time between the finding of new evidence and the filing of the petition.

The court held that it would be a “fundamental miscarriage of justice” to hold one in custody who could make a significant showing of innocence. It pointed out that a “fundamental miscarriage of justice exception” had previously been approved to overcome state procedural defaults. Despite Justice Scalia’s strenuous objection in dissent that the plain language of the AEDPA sets a one year statute of limitation limitation, Justice Ginsberg, writing for the majority pointed to the Supreme Court decision in Coleman v. Thompson that a failure to comply with a statute of limitations can be overcome in a writ of habeas corpus if to do otherwise would create a fundamental miscarriage of justice. This does not mean that Perkins’ conviction will be reversed. While the Supreme Court remanded the case to the District Court for further consideration it is unlikely to reverse the conviction in light of it’s prior ruling that Perkins did not meet the actual innocence standard.

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