herrera collins argued october decided january basis proof included two eyewitness identifications numerous pieces circumstantial evidence petitioner herrera handwritten letter impliedly admitting guilt herrera convicted capital murder police officer carrisalez sentenced death january pleading guilty july related capital murder officer rucker herrera unsuccessfully challenged carrisalez conviction direct appeal two collateral proceedings texas state courts federal habeas petition ten years conviction urged second federal habeas proceeding newly discovered evidence demonstrated actually innocent murders carrisalez rucker eighth amendment prohibition cruel unusual punishment fourteenth amendment due process guarantee therefore forbid execution supported claim affidavits tending show brother committed murders district inter alia granted request stay execution present actual innocence claim supporting affidavits state vacating stay appeals held claim cognizable federal habeas absent accompanying federal constitutional violation held herrera claim actual innocence entitle federal habeas relief pp herrera constitutional claim relief based upon newly discovered evidence innocence must evaluated light previous years proceedings case criminal cases trial paramount event determining defendant guilt innocence defendant afforded fair trial convicted offense charged constitutional presumption innocence disappears federal habeas courts sit correct errors fact ensure individuals imprisoned violation constitution see moore dempsey thus claims actual innocence based newly discovered evidence never held state ground federal habeas relief absent independent constitutional violation occurring course underlying state criminal proceedings see townsend sain rule petitioner subject defenses abusive successive use habeas writ may federal constitutional claim considered merits makes proper showing actual innocence see sawyer whitley inapplicable case herrera seek relief procedural error may bring independent constitutional claim challenging conviction sentence rather argues entitled habeas relief new evidence shows conviction factually incorrect allow federal grant typical habeas relief conditional order releasing unless state elects retry vacating death sentence effect require new trial years first trial constitutional violation first trial simply belief light newfound evidence jury might find guilty second trial far clear produce reliable determination guilt innocence since passage time diminishes reliability criminal adjudications jackson virginia ford wainwright johnson mississippi distinguished pp herrera contention fourteenth amendment due process guarantee supports claim showing innocence entitles new trial least vacation death sentence unpersuasive state legislative judgments entitled substantial deference criminal procedure area criminal process found lacking offends principle justice rooted tradition conscience ranked fundamental see patterson new york said refusal texas requires new trial motion based newly discovered evidence made within days imposition suspension sentence entertain herrera new evidence eight years conviction transgresses principle fundamental fairness light constitution silence subject new trials historical availability new trials based newly discovered evidence amendments federal rule criminal procedure impose time limit filing new trial motions based newly discovered evidence contemporary practice nine time limits filing motions pp herrera left without forum raise actual innocence claim may file request clemency texas law contains specific guidelines pardons ground innocence history shows executive clemency traditional remedy claims innocence based new evidence discovered late day file new trial motion pp even assuming sake argument capital case truly persuasive demonstration actual innocence render defendant execution unconstitutional warrant federal habeas relief state avenue open process claim herrera showing innocence falls far short threshold showing made order trigger relief threshold necessarily extraordinarily high disruptive effect entertaining claims need finality capital cases enormous burden retry cases based often stale evidence place although without probative value herrera affidavits insufficient meet standard since obtained without benefit opportunity make credibility determinations consist one exception hearsay likely presented means delaying herrera sentence produced trial eight years later death alleged perpetrator without satisfactory explanation delay herrera pleaded guilty rucker murder contain inconsistencies therefore fail provide convincing account took place night murders overcome strong proof herrera guilt presented trial pp rehnquist delivered opinion scalia kennedy thomas joined filed concurring opinion kennedy joined post scalia filed concurring opinion thomas joined post white filed opinion concurring judgment post blackmun filed dissenting opinion parts ii iii iv stevens souter joined post talbot argued cause petitioner brief robert mcglasson phyllis crocker mark evan olive margaret portman griffey assistant attorney general texas argued cause respondent brief dan morales attorney general pryor first assistant attorney general mary keller deputy attorney general michael hodge dana parker joan barton assistant attorneys general paul larkin argued cause amicus curiae urging affirmance brief solicitor general starr assistant attorney general mueller deputy solicitor general roberts chief justice rehnquist delivered opinion petitioner leonel torres herrera convicted capital murder sentenced death january unsuccessfully challenged conviction direct appeal state collateral proceedings texas state courts federal habeas petition february years conviction urged second federal habeas petition actually innocent murder sentenced death eighth amendment prohibition cruel unusual punishment fourteenth amendment guarantee due process law therefore forbid execution supported claim affidavits tending show brother rather perpetrator crime petitioner urges us hold showing innocence entitles relief federal habeas proceeding hold shortly evening late september body texas department public safety officer david rucker found passerby stretch highway six miles east los fresnos texas miles north brownsville rio grande valley rucker body lying beside patrol car shot head time los fresnos police officer enrique carrisalez observed speeding vehicle traveling west towards los fresnos away place rucker body found along road carrisalez accompanied patrol car enrique hernandez turned flashing red lights pursued speeding vehicle car stopped briefly red light signaled pull patrol car pulled behind carrisalez took flashlight walked toward car speeder driver opened door exchanged words carrisalez firing least one shot carrisalez chest officer died nine days later petitioner herrera arrested days shootings charged capital murder carrisalez rucker tried found guilty capital murder carrisalez january sentenced death july petitioner pleaded guilty murder rucker petitioner trial murder carrisalez hernandez witnessed carrisalez slaying officer patrol car identified petitioner person wielded gun declaration officer carrisalez effect made hospital also admitted license plate check shown speeding car involved carrisalez murder registered petitioner girlfriend petitioner known drive car set keys car pants pocket arrested hernandez identified car vehicle murderer emerged fire fatal shot also testified one person car night evidence showed herrera social security card found alongside rucker patrol car night killed splatters blood car identified vehicle involved shootings petitioner blue jeans wallet identified type blood type rucker herrera type blood similar evidence respect strands hair found car indicated hair rucker herrera handwritten letter also found person petitioner arrested strongly implied killed rucker petitioner appealed conviction sentence arguing among things hernandez carrisalez identifications unreliable improperly admitted texas criminal appeals affirmed herrera state denied certiorari petitioner application state habeas relief denied ex parte herrera petitioner filed federal habeas petition challenging identifications offered trial petition denied see denied certiorari petitioner next returned state filed second habeas petition raising among things claim actual innocence based newly discovered evidence support claim petitioner presented affidavits hector villarreal attorney represented petitioner brother raul herrera juan franco palacious one raul senior former cellmates individuals claimed raul senior died told petitioner killed officers rucker carrisalez state district denied application finding evidence trial remotely suggest ed anyone petitioner committed offense ex parte herrera tex texas criminal appeals affirmed ex parte herrera denied certiorari herrera texas february petitioner lodged instant habeas petition second federal alleging among things innocent murders rucker carrisalez execution thus violate eighth fourteenth amendments addition proffering affidavits petitioner presented affidavits raul herrera raul senior son jose ybarra schoolmate herrera brothers raul junior averred witnessed father shoot officers rucker carrisalez petitioner present raul junior nine years old time killings ybarra alleged raul senior told one summer night shot two police officers petitioner alleged law enforcement officials aware evidence withheld violation brady maryland district dismissed petitioner claims abuse writ sd however order ensure petitioner assert constitutional claims sense fairness due process district granted petitioner request stay execution present claim actual innocence along raul junior ybarra affidavits state app although initially dismissed petitioner brady claim ground petitioner failed present evidence withholding exculpatory material prosecution app district also granted evidentiary hearing claim reconsideration appeals vacated stay execution agreed district initial conclusion evidentiary basis petitioner brady claim found disingenuous petitioner attempt couch claim actual innocence brady terms absent accompanying constitutional violation appeals held petitioner claim actual innocence cognizable townsend sain existence merely newly discovered evidence relevant guilt state prisoner ground relief federal habeas corpus see granted certiorari texas criminal appeals stayed petitioner execution affirm petitioner asserts eighth fourteenth amendments constitution prohibit execution person innocent crime convicted proposition elemental appeal similar proposition constitution prohibits imprisonment one innocent crime convicted central purpose system criminal justice convict guilty free innocent see nobles evidence upon petitioner claim innocence rests produced trial rather eight years later system criminal justice innocence guilt must determined sort judicial proceeding petitioner showing innocence indeed constitutional claim relief based upon showing must evaluated light previous proceedings case stretched span years person first charged crime entitled presumption innocence may insist guilt established beyond reasonable doubt winship constitutional provisions also effect ensuring risk convicting innocent person see coy iowa right confront adverse witnesses taylor illinois right compulsory process strickland washington right effective assistance counsel winship supra prosecution must prove guilt beyond reasonable doubt duncan louisiana right jury trial brady maryland supra prosecution must disclose exculpatory evidence gideon wainwright right assistance counsel murchison right fair trial fair tribunal capital cases required additional protections nature penalty stake see beck alabama jury must given option convicting defendant lesser offense constitutional safeguards course make difficult state rebut finally overturn presumption innocence attaches every criminal defendant also observed ue process require every conceivable step taken whatever cost eliminate possibility convicting innocent person patterson new york conclude otherwise paralyze system enforcement criminal law defendant afforded fair trial convicted offense charged presumption innocence disappears cf ross moffitt purpose trial stage state point view convert criminal defendant person presumed innocent one found guilty beyond reasonable doubt disputed state met burden proving trial petitioner guilty capital murder officer carrisalez beyond reasonable doubt thus eyes law petitioner come one innocent contrary one convicted due process law two brutal murders based affidavits filed petitioner claims evidence never presented trial proves innocent notwithstanding verdict reached trial claim cognizable state courts texas obtain new trial based newly discovered evidence defendant must file motion within days imposition suspension sentence tex rule app proc texas courts construed time limit jurisdictional see beathard state drew state app claims actual innocence based newly discovered evidence never held state ground federal habeas relief absent independent constitutional violation occurring underlying state criminal proceeding chief justice warren made clear townsend sain supra emphasis added newly discovered evidence alleged habeas application evidence reasonably presented state trier facts federal must grant evidentiary hearing course evidence must bear upon constitutionality applicant detention existence merely newly discovered evidence relevant guilt state prisoner ground relief federal habeas corpus recent authority construing federal habeas statutes speaks similar vein federal courts forums relitigate state trials barefoot estelle guilt innocence determination state criminal trials decisive portentous event wainwright sykes society resources concentrated time place order decide within limits human fallibility question guilt innocence one citizens ibid rulings disruptive federal system provide federal habeas review freestanding claims actual innocence decision jackson virginia comes close authorizing evidentiary review conviction federal habeas cases held federal habeas may review claim evidence adduced state trial sufficient convict criminal defendant beyond reasonable doubt holding emphasized inquiry require ask whether believes evidence trial established guilt beyond reasonable doubt instead relevant question whether viewing evidence light favorable prosecution rational trier fact found essential elements crime beyond reasonable doubt familiar standard gives full play responsibility trier fact fairly resolve conflicts testimony weigh evidence draw reasonable inferences basic facts ultimate facts citations omitted emphasis original type federal habeas review sought petitioner different critical respects authorized jackson first jackson inquiry aimed determining whether independent constitutional violation conviction based evidence fails meet winship standard thus federal habeas courts act historic capacity assure habeas petitioner held violation federal constitutional rights second sufficiency evidence review authorized jackson limited record evidence jackson extend nonrecord evidence including newly discovered evidence finally jackson inquiry focus whether trier fact made correct guilt innocence determination rather whether made rational decision convict acquit petitioner understandably imprecise describing sort federal relief suitable showing actual innocence entitle brief federal habeas important initial opportunity hear evidence resolve merits petitioner claim brief petitioner acceptance view presumably require habeas hear testimony witnesses testified trial well made statements affidavits petitioner presented determine anew whether petitioner guilty murder officer carrisalez indeed dissent approach differs little hypothesized dissent place burden petitioner show probably innocent post although petitioner entitled discovery matter right district retain discretion order discovery help make reliable determination respect prisoner claim post although district required hear testimony witnesses testified trial affiants upon petitioner relies dissent allow district petition warrants hearing ibid end day dissent district make determination reliability newly discovered evidence circumstances weigh evidence favor prisoner evidence guilt post dissent fails articulate relief available petitioner meets probable innocence standard commutation petitioner death sentence new trial unconditional release imprisonment typical relief granted federal habeas corpus conditional order release unless state elects retry successful habeas petitioner capital case similar conditional order vacating death sentence petitioner satisfy dissent probable innocence standard therefore district presumably required grant conditional order relief effect require state retry petitioner years first trial constitutional violation occurred first trial simply belief light petitioner newfound evidence jury might find guilty second trial yet guarantee guilt innocence determination exact contrary passage time diminishes reliability criminal adjudications see mccleskey zant hen habeas petitioner succeeds obtaining new trial erosion memory dispersion witnesses occur passage time prejudice government diminish chances reliable criminal adjudication quoting kuhlmann wilson plurality opinion internal quotation marks omitted citation omitted smith dissent approach district placed even difficult position weigh probative value hot cold evidence petitioner guilt innocence say habeas jurisprudence casts blind eye toward innocence series cases culminating sawyer whitley decided last term held petitioner otherwise subject defenses abusive successive use writ may federal constitutional claim considered merits makes proper showing actual innocence rule fundamental miscarriage justice exception grounded equitable discretion habeas courts see federal constitutional errors result incarceration innocent persons see mccleskey supra body habeas jurisprudence makes clear claim actual innocence constitutional claim instead gateway habeas petitioner must pass otherwise barred constitutional claim considered merits petitioner case simply entitled habeas relief based reasoning line cases seek excusal procedural error may bring independent constitutional claim challenging conviction sentence rather argues entitled habeas relief newly discovered evidence shows conviction factually incorrect fundamental miscarriage justice exception available prisoner supplements constitutional claim colorable showing factual innocence kuhlmann supra emphasis added never held extends freestanding claims actual innocence therefore exception inapplicable petitioner asserts case different sentenced death refused hold fact death sentence imposed requires different standard review federal habeas corpus murray giarratano plurality opinion course held eighth amendment requires increased reliability process capital punishment may imposed see mckoy north carolina unanimity requirement impermissibly limits jurors consideration mitigating evidence eddings oklahoma jury must allowed consider capital defendant mitigating character evidence lockett ohio plurality opinion petitioner claim fit well doctrine cases since pointed far clear second trial years first trial produce reliable result perhaps mindful petitioner urges necessarily receive new trial death sentence simply vacated federal habeas deems satisfactory showing actual innocence made tr oral arg result scarcely logical petitioner claim error made imposing capital sentence upon fundamental error made finding guilty underlying murder first place rather strange jurisprudence circumstances held constitution executed spend rest life prison petitioner argues decision ford wainwright supports position plurality ford held eighth amendment prohibits execution insane persons certain procedural protections inhere sanity determination constitution renders fact timing execution contingent upon establishment fact justice marshall wrote fact must determined high regard truth befits decision affecting life death human florida scheme determining sanity persons sentenced death failed achieve even minimal degree reliability plurality concluded ford entitled evidentiary hearing sanity district unlike petitioner ford challenge validity conviction rather challenged constitutionality death sentence view claim insanity ford claim went matter punishment guilt properly examined within purview eighth amendment moreover unlike question guilt innocence becomes uncertain time evidentiary reasons issue sanity properly considered proximity execution finally unlike sanity determination florida scheme issue ford guilt innocence determination system criminal justice made high regard truth befits decision affecting life death human petitioner also relies johnson mississippi held eighth amendment requires reexamination death sentence based part prior felony conviction set aside rendering state capital sentence imposed state insisted late day raise point pointed mississippi previously considered similar claims writ error coram nobis thus need override state law relating newly discovered evidence order consider johnson claim merits doubt petitioner seeks additional process evidentiary hearing claim actual innocence based newly discovered evidence available texas law days imposition suspension sentence app proc alternatively petitioner invokes fourteenth amendment guarantee due process law support claim showing actual innocence entitles new trial least vacation death sentence ecause considerable expertise matters criminal procedure criminal process grounded centuries common law tradition exercis ed substantial deference legislative judgments area medina california thus found criminal process lacking offends principle justice rooted traditions conscience people ranked fundamental ibid quoting patterson new york historical practice probative whether procedural rule characterized fundamental constitution course makes mention new trials new trials criminal cases granted england end century even available misdemeanor cases though writ error coram nobis available errors fact felony cases orfield new trial federal criminal cases first congress provided new trials reasons new trials usually granted courts law act ch stat rule early held extend criminal cases see sparf gray dissenting citing cases one grounds upon new trials granted newly discovered evidence see wharton criminal pleading practice pp ed early federal cases adhere common law rule new trial may granted term final judgment entered see mayer simmons cc edny otherwise subsequent term power correct inaccuracies mere matters form clerical errors departed common law rule adopted time limit days final judgment filing new trial motions based newly discovered evidence rule ii criminal rules practice procedure four years later amended rule ii allow motions capital cases time execution took place codified ensued debate whether abolish time limit filing new trial motions based newly discovered evidence prevent miscarriage justice retain time limit even capital cases promote finality see orfield supra set time limit filing new trial motions based newly discovered evidence abolished exception capital cases rule federal rules criminal procedure motion new trial based ground newly discovered evidence may made within two years final judgment strictly construed rule time limits cf smith rule treatment new trials based newly discovered evidence changed since adoption american colonies adopted english common law new trials riddell new trial present practice yale thus new trials available motions relief typically filed expiration term trial held underhill criminal evidence bassett criminal pleading practice time many enacted statutes providing new trials types cases also extended time period filing new trial motions beyond term required motions made within days verdict rendered judgment entered see american law institute code criminal procedure official draft reviewing contemporary new trials rules practice today limited relevance historical inquiry divergent texas one requires new trial motion based newly discovered evidence made within days judgment one state adheres common law rule requires motion filed term judgment rendered eighteen jurisdictions time limits ranging one three years district columbia following year federal time limit allow new trial motion based newly discovered evidence filed three years conviction four waivable time limits less days two waivable time limits days nine time limits light historical availability new trials amendments rule contemporary practice say texas refusal entertain petitioner newly discovered evidence eight years conviction transgresses principle fundamental fairness rooted traditions conscience people patterson new york internal quotation marks citations omitted say however petitioner left without forum raise actual innocence claim texas law petitioner may file request executive clemency see tex art tex code art vernon clemency deeply rooted tradition law historic remedy preventing miscarriages justice judicial process exhausted england clemency power vested crown traced back humbert pardoning power president blackstone thought one great advantages monarchy general form government magistrate power extend mercy wherever thinks deserved holding equity breast soften rigor general law criminal cases merit exemption punishment blackstone commentaries clemency provided principal avenue relief individuals convicted criminal offenses capital right appeal radzinowicz history english criminal law means one challenge conviction ground innocence dept justice attorney general survey release procedures constitution adopts british model gives president power grant reprieves pardons offences art ii cl wilson pet chief justice marshall expounded president pardon power power exercised time immemorial executive nation whose language language whose judicial institutions bear close resemblance adopt principles respecting operation effect pardon look books rules prescribing manner used person avail pardon act grace proceeding power entrusted execution laws exempts individual bestowed punishment law inflicts crime committed private though official act executive magistrate delivered individual whose benefit intended communicated officially constituent part judicial system judge sees judicial eyes knows nothing respecting particular case informed judicially private deed communicated whatever may character whether pardon release totally unknown acted looseness introduced judicial proceedings prove fatal great principles justice judge might notice act upon facts brought regularly cause proceeding ordinary cases subvert best established principles overturn rules settled wisdom ages course although constitution vests president pardon power require enact clemency mechanism yet since british colonies founded clemency available america jensen pardoning power american original reluctant vest clemency power executive although power gravitated toward executive time several split clemency power governor advisory board selected legislature see survey release procedures supra today authorize capital punishment constitutional statutory provisions clemency executive clemency provided criminal justice system moore pardons justice mercy public interest unalterable fact judicial system like human beings administer fallible history replete examples wrongfully convicted persons pardoned wake evidence establishing innocence classic work professor edwin borchard compiled cases later determined individuals wrongfully convicted crimes clemency provided relief mechanism cases remaining cases ended judgments acquittals new trials borchard convicting innocent recent authority confirms past century clemency exercised frequently capital cases demonstrations actual innocence made see radelet bedau putnam spite innocence texas governor power upon recommendation majority board pardons paroles grant clemency tex art iv tex code crim proc art vernon board consideration triggered upon request individual sentenced death representative governor capital cases request may made full pardon tex admin code tit west supp commutation death sentence life imprisonment appropriate maximum penalty reprieve execution governor sole authority grant one reprieve capital case exceeding days texas clemency procedures contain specific guidelines pardons ground innocence board entertain applications recommendation full pardon innocence upon receipt following written unanimous recommendation current trial officials conviction certified order judgment jurisdiction accompanied certified copy findings fact affidavits witnesses upon finding innocence based case petitioner apparently sought day reprieve governor yet apply pardon even commutation ground innocence otherwise tr oral arg foregoing discussion illustrates state criminal proceedings trial paramount event determining guilt innocence defendant federal habeas review state convictions traditionally limited claims constitutional violations occurring course underlying state criminal proceedings federal habeas cases treated claims actual innocence independent constitutional claim basis upon habeas petitioner may independent constitutional claim considered merits even though habeas petition otherwise regarded successive abusive history shows traditional remedy claims innocence based new evidence discovered late day file new trial motion executive clemency may assume sake argument deciding case capital case truly persuasive demonstration actual innocence made trial render execution defendant unconstitutional warrant federal habeas relief state avenue open process claim disruptive effect entertaining claims actual innocence need finality capital cases enormous burden retry cases based often stale evidence place threshold showing assumed right necessarily extraordinarily high showing made petitioner case falls far short threshold petitioner newly discovered evidence consists affidavits new trial context motions based solely upon affidavits disfavored affiants statements obtained without benefit opportunity make credibility determinations see orfield petitioner affidavits particularly suspect regard exception raul herrera affidavit consist hearsay likewise reviewing petitioner new evidence mindful defendants often abuse new trial motions method delaying enforcement sentences johnson although presented new trial motion per se believe likelihood abuse great greater affidavits filed habeas proceeding given eight years petitioner trial satisfactory explanation given affiants waited hour indeed alleged perpetrator murders dead make statements cf taylor illinois reasonable presume something suspect defense witness identified hour passed equally troubling explanation offered petitioner hypothesis innocent man pleaded guilty murder rucker moreover affidavits contain inconsistencies therefore fail provide convincing account took place night officers rucker carrisalez killed instance affidavit raul junior nine years old time indicates three people speeding car murderer emerged whereas hector villarreal attested raul told two people car night course hernandez testified petitioner trial murderer occupant car affidavits also conflict direction vehicle heading murders took place petitioner whereabouts night killings finally affidavits must considered light proof petitioner guilt trial proof included two eyewitness identifications numerous pieces circumstantial evidence handwritten letter petitioner apologized killing officers offered turn certain conditions see supra proof even considered alongside petitioner belated affidavits points strongly petitioner guilt say petitioner affidavits without probative value sort testimony offered trial weighed jury along evidence offered state petitioner deliberating upon verdict since statements affidavits contradict evidence received trial jury decide important issues credibility coming years petitioner trial showing innocence falls far short made order trigger sort constitutional claim assumed arguendo exist judgment appeals affirmed footnotes tormented person believe law without sic men risk lives others protecting life property pursuit happiness sometimes law gets involved things profit laws make people break words encourage crime happened rucker certain reason knew mike tatum business violated laws suffered penalty like one time comes personal life conspiracy since high school days nothing happened officer became part lives rucker tatum night sic protect life lot us wear different faces lives every day causes problems unintelligible word wrote want life think also signed leonel herrera tapes pictures prove said prove side accept listen unintelligible word freedom speech even criminal right present read word word media turn millions men working others robbers rapists burglars taking advantage law time excuse spelling writing hard times like app brief amicus curiae villarreal affidavit dated december attested representing raul senior charge attempted murder raul senior told petitioner father officer rucker hidalgo county sheriff involved drug trafficking scheme one shot officers rucker carrisalez tell anyone thought petitioner acquitted petitioner convicted sentenced death began blackmailing hidalgo county sheriff according villarreal raul senior killed jose lopez worked sheriff drug trafficking matters present raul senior murdered rucker carrisalez silence palacious affidavit dated december attested raul senior shared cell together hidalgo county jail raul senior told shot rucker carrisalez raul junior affidavit dated january ybarra affidavit dated january initially submitted petitioner reply state brief response petitioner petition writ habeas corpus filed january texas criminal appeals appeals vacated stay execution petitioner attached new affidavit raul junior petition rehearing denied affidavit alleges petitioner trial various law enforcement officials hidalgo county sheriff told raul junior say happened night shootings threatened family dissent relies beck alabama proposition least capital cases eighth amendment requires reliability sentencing also mandates reliable determination guilt post extent beck rests eighth amendment grounds simply emphasizes importance ensuring reliability guilt determination capital cases first instance difficulty extending principle hold capital defendant afforded full fair trial may challenge conviction federal habeas based evidence dissent takes us task examining petitioner fourteenth amendment claim terms procedural rather substantive due process xecution innocent person ultimate arbitrary impositio post quoting planned parenthood southeastern casey internal quotation marks omitted dissent concludes petitioner may raise substantive due process challenge punishment ground actually innocent post dissent puts cart horse due process analysis rests assumption petitioner fact innocent however discussed petitioner come innocent man rather one convicted due process law two capital murders question us whether due process prohibits execution innocent person rather whether entitles petitioner judicial review actual innocence claim issue properly analyzed terms procedural due process response second preliminary draft federal rules criminal procedure chief justice harlan stone forwarded memorandum behalf rules advisory committee various comments suggestions including following suggested definite time limit within motions new trial based newly discovered evidence made unless trial discretion good cause shown allows motion filed desirable point time consideration criminal cases end appeals made executive clemency alone drafting history federal rules criminal procedure wilken triffin eds responding proposed rule noted eventually rejected adoption flexible time limit new trial motions opting instead strict time limit days days days days penal proc days ch days crim proc days days days days ann days codified laws days crim proc days app proc days utah rule days days days miss cir crim rule alaska rule crim rule two years stat three years del crim rule two years super crim rule two years stat ann two years art west one year maine rule two years one year three years two years three years crim proc two years two years ch one year rule two years two years one year two years cal penal code ann west time limit supp time limit ann days extended idaho code supp days extended iowa rule days waived one year waived time limit time limit mckinney time limit time limit ohio rule days waived five days waived time limit crim proc supp time limit time limit term clemency refers full conditional pardons also commutations remissions fines reprieves see kobil quality mercy strained wresting pardoning power king texas dissent relies plurality opinion ford wainwright support proposition vindication rights guaranteed constitution never made turn unreviewable discretion executive official administrative tribunal post case inapposite insofar pertains discussion clemency ford plurality held florida procedures entertaining claims insanity vested sanity determination entirely within executive branch inadequate preclude federal redetermination constitutional issue ford sanity unlike ford claim insanity never presented judicial proceeding petitioner claim actual innocence comes years adjudged guilty beyond reasonable doubt full fair trial following discussion indicates clear clemency provided historic mechanism obtaining relief circumstances ala amdt ariz art supp ark art vi ann supp cal art vii ann west colo art iv conn art iv del art vii del code tit fla art iv supp ga art iv ann idaho art iv idaho code supp ill art ch ind art ky la art iv west md art ii art art miss const art ann mo art iv vernon supp vernon mont art vi ann neb art iv nev art pt art art west art art iii ohio art iii ohio ann supp okla art vi tit supp ore art pa art iv tit purdon supp art iv ann supp art iv codified laws tenn art iii ann tex art iv art vernon utah art vii utah code ann supp va art ann wash art iii wyo art iv dissent points one study concluding innocent persons executed century support proposition clemency requests persons believed innocent always granted see post citing bedau radelet miscarriages justice potentially capital cases although doubt clemency like criminal justice system fallible note scholars taken issue study see markman cassell protecting innocent response study justice justice kennedy joins concurring disagree fundamental legal principle executing innocent inconsistent constitution regardless verbal formula employed contrary contemporary standards decency post dissenting opinion relying ford wainwright shocking conscience post relying rochin california offensive principle justice rooted traditions conscience people ranked fundamental ante opinion quoting medina california turn quoting patterson new york execution legally factually innocent person constitutionally intolerable event dispositive case however equally fundamental fact petitioner innocent sense word explains ante petitioner innocent eyes law system justice trial paramount event determining guilt innocence defendant ante accord post dissenting opinion petitioner case paramount event occurred years ago tried jury peers full panoply protections constitution affords criminal defendants conclusion trial jury found petitioner guilty beyond reasonable doubt petitioner therefore appear us innocent man verge execution instead legally guilty one refusing accept jury verdict demands hearing culpability determined ante consequently issue us whether state execute innocent notes whether fairly convicted therefore legally guilty person constitutionally entitled yet another judicial proceeding adjudicate guilt anew years conviction notwithstanding failure demonstrate constitutional error infected trial ante see ante circumstances question answer negative society high degree confidence criminal trials small part constitution offers unparalleled protections convicting innocent ante question similarly answered negative today except disturbing nature claim us petitioner contends constitution protections sometimes fail post dissenting opinion failure case result execution even though factually innocent evidence prove exercising restraint justice white assume sake argument prisoner make exceptionally strong showing actual innocence execution go forward justice blackmun contrast expressly hold also announce precise burden proof compare ante opinion assume sake argument deciding case capital case truly persuasive demonstration actual innocence made trial render execution defendant unconstitutional warrant federal habeas relief state avenue open process claim ante white concurring judgment assuming persuasive showing actual innocence render conviction unconstitutional explaining even assumption petitioner least required show based proffered newly discovered evidence entire record jury convicted rational trier fact find proof guilt beyond reasonable doubt jackson virginia post dissenting opinion hold obtain relief claim actual innocence petitioner must show probably innocent resolving issue neither necessary advisable case question sensitive say least troubling one implicates life single individual also state powerful legitimate interest punishing guilty nature relations indeed persuasively demonstrates ante throughout history federal courts assumed intervene prevent execution long prisoner convicted constitutionally adequate trial prisoner sole remedy pardon clemency nonetheless proper disposition case neither difficult troubling matter might say claims actual innocence today petitioner obtain relief record overwhelmingly demonstrates petitioner deliberately shot killed officers rucker carrisalez night september petitioner new evidence bereft credibility indeed despite stinging criticism decision even dissent expresses belief petitioner might possibly actually innocent record makes abundantly clear petitioner somehow future victim simple murder post dissenting opinion instead established perpetrator two brutal tragic ones petitioner first victim texas department public safety officer david rucker whose body found lying beside patrol car body condition indicated struggle taken place rucker shot head rather close range petitioner social security card found nearby shortly rucker body discovered petitioner second victim los fresnos police officer enrique carrisalez stopped car speeding away murder scene carrisalez approached driver shot carrisalez lived long enough identify petitioner assailant enrique hernandez civilian riding carrisalez also identified petitioner culprit moreover time stop carrisalez radioed description car license plates police station license plates corresponded car petitioner known drive although car belonged petitioner girlfriend set keys petitioner even set pocket time arrest police arrested petitioner found car keys also found evidence struggle petitioner officer rucker human blood spattered across hood left front fender grill interior petitioner car spots blood petitioner jeans blood even managed splash wallet blood like rucker unlike petitioner type blood samples also matched rucker enzyme profile nation population shares rucker blood type enzyme profile compelling piece evidence entirely petitioner making police arrested petitioner possession signed letter acknowledged responsibility murders end letter petitioner offered turn terribly sorry brought grief happened rucker certain reason violated laws drug business suffered penalty like one time comes officer carrisalez nothing protect life read word word media turn ante years convicted seemingly dispositive evidence petitioner collected four affidavits claims prove innocence affidavits allege petitioner brother died six years affidavits executed killer petitioner affidavits like uncommon especially capital cases unfortunate although understandable occurrence seems prisoner life stake often find someone new vouch experience shown however affidavits treated fair degree skepticism affidavits exception suspect produced hour reasonable explanation nearly delay see ante worse conveniently blame dead man someone neither contest allegations suffer punishment result moreover contradict numerous points including number people murderer car direction heading officer carrisalez stopped ante even agree officer rucker killed according one rucker killed murderer met highway rest stop brief petitioner contrast another asserts initial meeting rucker killed afterward pulled murderer car highway affidavits inconsistent petitioner admission guilt affidavits blame petitioner deceased brother rucker carrisalez homicides even though petitioner pleaded guilty murdering rucker contested carrisalez slaying critical however affidavits pale compared proof trial bits circumstantial evidence explained petitioner offers plausible excuse damaging piece evidence signed letter petitioner confessed offered turn one hardly ask unimpeachable unimpeached evidence guilt conclusion seems inescapable petitioner guilty dissent contend otherwise instead urges us defer district determination petitioner evidence insubstantial dismissed without hearing post read district decision making determination nowhere opinion district question accuracy jury verdict pass sufficiency affidavits district even suggest wished hold evidentiary hearing petitioner actual innocence claims indeed district apparently believed hearing futile offer relief event explained claims newly discovered evidence bearing directly upon guilt innocence cognizable habeas corpus unless petition implicates constitutional violation app dissent admits post district altogether different reason entering stay execution believed sense fairness due process app petitioner chance present affidavits state courts ante district hold state courts hold hearing either instead ordered habeas petition dismissed stay lifted state action filed without condition app appeals recognized rationale insufficient support stay order texas courts recognize new evidence claims collateral review entertain petitioner claim motion new trial texas law motions must made within days trial see ante app petitioner obtained relief even hearing state courts error district enter stay permitting try course texas courts free turn petitioner away constitution required otherwise district hold constitution required entertain petitioner claim facts extraordinary holding petitioner raise claim shortly texas day limit expired raised eight years late consequently district conclude texas day limit new evidence claims short comport due process applying limit petitioner demonstrates today see ante little fairness history support conclusion even district hold federal proceedings warranted surely abused discretion affidavits reveal likelihood actual innocence see ante supra repetition affiants accounts evidentiary hearing alter accounts face compared proof trial unconvincing result proceedings improper even rather lax standard dissent urges plainly appear ed face petition exhibits annexed petitioner wa entitled relief post quoting rule abuse discretion particularly egregious given procedural posture district actually entered order staying execution stays second successive federal habeas petition granted substantial grounds upon relief might granted delo stokes quoting barefoot estelle equities favor petitioner see gomez dist northern dist whether claim framed habeas petition action sought equitable remedy may consider nature application stay execution deciding whether grant equitable petitioner claim satisfied neither condition grounds petitioner offered habeas petition anything substantial equities favored state petitioner delayed presenting new evidence eight years conviction without offering semblance reasonable excuse inordinate delay point time state interest finality must outweigh prisoner interest yet another round litigation case point well short eight years unless federal proceedings relief reserved extraordinarily high truly persuasive demonstration actual innocence presented state authorities ante federal courts deluged frivolous claims actual innocence justice jackson explained dangers circumstances years ago must prejudice occasional meritorious application buried flood worthless ones must search haystack needle likely end attitude needle worth search brown allen concurring result justice scalia justice thomas joins concurring granted certiorari question whether violates due process constitutes cruel unusual punishment state execute person convicted murder full fair trial later alleges newly discovered evidence shows actually innocent preferred decide question particularly since discussion shows perfectly clear answer basis text tradition even contemporary practice enough finding constitution right demand judicial consideration newly discovered evidence innocence brought forward conviction saying right exists dissenters apply nothing personal opinions invalidate rules two thirds federal rule criminal procedure responsible system place years remains widely approved shock dissenters consciences post perhaps doubt calibration consciences better still usefulness conscience shocking legal test nonetheless join entirety opinion including final portion ante legal error deciding case assuming arguendo asserted constitutional right exists understand least accustomed reluctance present admit publicly perfect constitution lets stand injustice much less execution innocent man received though avail process society traditionally deemed adequate luck shall avoid ever face embarrassing question since improbable evidence innocence convincing today opinion requires fail produce executive pardon concern making life easier appear make harder lower federal courts imposing upon burden regularly analyzing claims capital cases event federal claims confidently predicted become routine even repetitive number courts appeals hitherto held largely reliance unelaborated statement townsend sain newly discovered evidence relevant state prisoner guilt innocence basis federal habeas corpus relief see boyd puckett cert denied stockton virginia cert denied swindle davis per curiam byrd armontrout cert denied burks egeler cert denied understand import today decision holdings replaced strange regime assumes permanently though arguendo constitutional right exists expends substantial judicial resources assumption extensive scholarly discussion question presented present case nothing support statement townsend strengthen validity holdings based upon reference article professor monaghan discusses unhappy truth every problem meant solved constitution see monaghan perfect constitution justice white concurring judgment voting affirm assume persuasive showing actual innocence made trial even though made expiration time provided law presentation newly discovered evidence render unconstitutional execution petitioner case entitled relief however petitioner least required show based proffered newly discovered evidence entire record jury convicted rational trier fact find proof guilt beyond reasonable doubt jackson virginia reasons stated opinion petitioner showing falls far short satisfying even standard therefore concur judgment justice blackmun justice stevens justice souter join respect parts dissenting nothing contrary contemporary standards decency see ford wainwright shocking conscience see rochin california execute person actually innocent therefore must disagree long general discussion precedes disposition case see ante discussion course dictum assumes sake argument deciding case capital case truly persuasive demonstration actual innocence made trial render execution defendant unconstitutional ante without articulating standard applying however decides petitioner made sufficiently persuasive case believe first instance district decide whether petitioner entitled hearing whether entitled relief merits claim reverse order appeals remand case proceedings district enumeration ante constitutional rights criminal defendants surely entirely beside point protections sometimes fail really asked decide whether constitution forbids execution person validly convicted sentenced nonetheless prove innocence newly discovered evidence despite state texas astonishing protestation contrary see tr oral arg see answer anything yes eighth amendment prohibits cruel unusual punishments proscription static rather reflects evolving standards decency ford wainwright gregg georgia opinion stewart powell stevens jj trop dulles plurality opinion weems think crystal clear execution innocent person odds contemporary standards fairness decency spaziano florida indeed odds standard decency imagine ruled punishment excessive unconstitutional nothing purposeless needless imposition pain suffering grossly proportion severity crime coker georgia plurality opinion gregg georgia opinion stewart powell stevens held death excessive punishment rape coker georgia mere participation robbery killing takes place enmund florida violative eighth amendment execute someone guilty crimes plainly violative eighth amendment execute person actually innocent executing innocent person epitomizes purposeless needless imposition pain suffering coker georgia protection eighth amendment end defendant validly convicted sentenced johnson mississippi petitioner convicted murder sentenced death basis three aggravating circumstances one circumstances previously convicted violent felony state new york johnson sentenced death new york appeals reversed prior conviction although question prior conviction valid time johnson sentencing held eighth amendment required review sentence jury allowed consider evidence revealed materially inaccurate ford wainwright petitioner convicted murder sentenced death suggestion incompetent time offense trial sentencing subsequently exhibited changes behavior raised doubts sanity held florida required eighth amendment provide additional hearing determine whether ford mentally competent executed incompetent plurality opinion powell concurring part concurring judgment johnson ford recognize capital defendants may entitled proceedings intervening development even though validly convicted sentenced death respondent amicus curiae argue eighth amendment apply petitioner challenging guilt punishment brief respondent brief amicus curiae majority attempts distinguish ford basis ante reasoning however contradicts decision beck alabama also fundamentally misconceives nature petitioner argument whether petitioner viewed challenging simply death sentence also continued detention still challenging state right punish respondent impose clear line guilt punishment reasoning every claim concerns guilt necessarily involve punishment division far facile respondent fail recognize legitimacy punishment inextricably intertwined guilt beck makes clear beck petitioner convicted capital crime killing alabama law however trial prohibited giving jury option convicting lesser included offense felony murder held precluding instruction injected impermissible element uncertainty guilt phase trial insure death penalty indeed imposed basis reason rather caprice emotion invalidated procedural rules tended diminish reliability sentencing determination reasoning must apply rules diminish reliability guilt determination thus unavailability lesser included offense instruction enhances risk unwarranted cocnviction state constitutionally prohibited withdrawing option capital case omitted also suggests allowing petitioner raise claim innocence serve society interest reliable imposition death penalty might require new trial less accurate first ante suggestion misses point entirely question whether second trial reliable first whether light new evidence result first trial sufficiently reliable state carry death sentence furthermore far clear state seek retry rare prisoner prevails claim actual innocence explained part iii infra believe prisoner must show probably reasonable doubt guilt probably actually innocent find difficult believe state choose retry person meets standard believe contrary standard decency execute someone actually innocent eighth amendment applies questions guilt innocence beck alabama persons upon valid sentence death imposed johnson mississippi also believe petitioner may raise eighth amendment challenge punishment ground actually innocent execution innocent equally offensive due process clause fourteenth amendment majority discussion misinterprets petitioner fourteenth amendment claim raising procedural rather substantive due process challenge due process clause fifth amendment provides person shall deprived life liberty property without due process law held due process clause protects individuals two types government action substantive due process prevents government engaging conduct shocks conscience rochin california interferes rights implicit concept ordered liberty palko connecticut government action depriving person life liberty property survives substantive due process scrutiny must still implemented fair manner mathews eldridge requirement traditionally referred procedural due process salerno last term occasion explain role substantive due process constitutional scheme quoting second justice harlan said full scope liberty guaranteed due process clause found limited precise terms specific guarantees elsewhere provided constitution liberty series isolated points rational continuum broadly speaking includes freedom substantial arbitrary impositions purposeless restraints planned parenthood southeastern casey quoting poe ullman opinion dissenting dismissal jurisdictional grounds given conclusion violates eighth fourteenth amendments execute person actually innocent find bar townsend sain consideration claim newly discovered evidence petitioner innocence bear constitutionality execution course argued tension townsend statement existence merely newly discovered evidence relevant guilt state prisoner ground relief federal habeas corpus statement however distant dictum never asked consider whether execution innocent person violates constitution ii majority discussion petitioner constitutional claims even perverse viewed light recent habeas jurisprudence beginning trio decisions shifted focus federal habeas review successive abusive defaulted claims away preservation constitutional rights inquiry habeas petitioner guilt innocence see kuhlmann wilson plurality opinion murray carrier smith murray see also mccleskey zant sought strike balance state interest finality criminal judgments prisoner interest access forum test basic justice sentence kuhlmann wilson striking balance adopted view judge friendly exception concept finality prisoner make colorable claim actual innocence friendly innocence irrelevant collateral attack criminal judgments justice powell writing plurality wilson explained reason focusing innocence prisoner may vital interest second chance test fundamental justice incarceration even many judges reviewed prisoner claims several proceedings provided state first petition federal habeas corpus determined trial free constitutional error prisoner retains powerful legitimate interest obtaining release custody innocent charge incarcerated interest extend however prisoners whose guilt conceded plain adopted actual innocence requirement review abusive successive defaulted claims however majority take position claim actual innocence constitutional claim instead gateway habeas petitioner must pass otherwise barred constitutional claim considered merits ante words held prisoner incarcerated violation constitution must show actually innocent obtain relief majority hold prisoner actually innocent must show constitutional violation obtain relief principle appear reconcile two positions principle habeas relief denied whenever possible iii eighth fourteenth amendments course binding one normally expect adopt procedures consider claims actual innocence based newly discovered evidence see ford wainwright plurality opinion minimum requirements state proceeding determine competency executed majority disposition case however leaves uncertain constitutional obligations whatever procedures state might adopt hear claims one thing certain possibility executive clemency sufficient satisfy requirements eighth fourteenth amendments majority correctly points pardon act grace ante vindication rights guaranteed constitution never made turn unreviewable discretion executive official administrative tribunal indeed ford wainwright explicitly rejected argument executive clemency adequate vindicate eighth amendment right executed one insane possibility executive clemency exists every case defendant challenges sentence eighth amendment recognition bare possibility make judicial review eighth amendment meaningless solem helm government emphatically termed government laws men certainly cease deserve high appellation laws furnish remedy violation vested legal right marbury madison cranch exercise legal right turns act grace longer live government laws purpose bill rights withdraw certain subjects vicissitudes political controversy place beyond reach majorities officials establish legal principles applied courts west virginia bd ed barnette understandable therefore majority say vindication petitioner constitutional rights may left executive clemency like constitutional claims eighth fourteenth amendment claims actual innocence advanced behalf state prisoner heard state state provides judicial procedure raising claims prisoner may required exhaust procedure taking claim actual innocence federal see furthermore state determinations factual issues relating claim entitled presumption correctness subsequent federal habeas proceeding see texas provides judicial procedure hearing petitioner claim actual innocence habeas petition properly filed district district entitled dismiss petition summarily plainly appears face petition exhibits annexed petitioner entitled relief rule case petition raises factual questions state failed provide full fair hearing district required hold evidentiary hearing townsend sain present federal petition petitioner second must either show cause prejudice failing raise claim first petition show falls within actual innocence exception cause prejudice requirement mccleskey zant petitioner show entitled relief merits actual innocence claim however certainly show falls within actual innocence exception cause prejudice requirement mccleskey bar relief question remains showing required obtain relief merits eighth fourteenth amendment claim actual innocence agree majority state criminal proceedings trial paramount event determining guilt innocence defendant ante also think truly persuasive demonstration actual innocence made trial render execution defendant unconstitutional ibid question truly persuasive demonstration entails question majority disposition case leaves open articulating exception habeas jurisprudence adopted standard requiring petitioner show fair probability light evidence trier facts entertained reasonable doubt guilt kuhlmann wilson words habeas petitioner must show probably reasonable doubt see also murray carrier exception applies constitutional violation probably resulted mistaken conviction mccleskey zant exception applies constitutional violation probably caused mistaken conviction think standard relief merits actual innocence claim must higher threshold standard merely reaching claim claim procedurally defaulted successive abusive hold obtain relief claim actual innocence petitioner must show probably innocent standard supported several considerations first new evidence innocence may discovered long defendant conviction given passage time may difficult state retry defendant obtains relief conviction sentence actual innocence claim actual innocence proceeding thus may constitute final word whether defendant may punished light fact otherwise constitutionally valid conviction sentence set aside lightly second conviction constitutionally adequate trial strips defendant presumption innocence government bears burden proving defendant guilt beyond reasonable doubt jackson virginia winship government done burden proving innocence must shift convicted defendant actual innocence inquiry therefore distinguishable review sufficiency evidence question whether defendant innocent whether government met constitutional burden proving defendant guilt beyond reasonable doubt defendant seeks challenge determination guilt validly convicted sentenced fair place burden proving innocence raising doubt guilt considering whether prisoner entitled relief claim take evidence account giving due regard reliability see sawyer whitley kuhlmann wilson friendly placing burden prisoner prove innocence creates presumption conviction valid necessary appropriate make presumptions reliability newly discovered evidence generally rather charged deciding claim make determination reliability newly discovered evidence circumstances weigh evidence favor prisoner evidence guilt obviously stronger evidence prisoner guilt persuasive newly discovered evidence innocence must prisoner raising actual innocence claim federal habeas petition entitled discovery matter right harris nelson rule district retains discretion order discovery however help make reliable determination respect prisoner claim harris nelson see advisory committee note rule pp clear standard adopt convert federal courts forums relitigate state trials ante quoting barefoot estelle require habeas hear testimony witnesses testified trial ante though petition warrants hearing may require habeas hear testimony made statements affidavits petitioner presented ibid believe prisoner show probably actually innocent light evidence made truly persuasive demonstration ante execution violate constitution hold iv case district determined petitioner newly discovered evidence warranted consideration district doubted authority consider new evidence thought petitioner claim actual innocence brought state see app clearly think petitioner evidence insubstantial dismissed without hearing reverse order appeals remand case district consider whether petitioner shown light evidence probably actually innocent think unwise step shoes district rule petition first instance wishes act district however must also bound rules govern consideration habeas petitions district district may summarily dismiss habeas petition plainly appears face petition exhibits annexed petitioner entitled relief rule one affidavits hector villarreal licensed attorney former state judge swears penalty perjury client raul herrera confessed petitioner committed murders matter majority may think inconsistencies affidavits strength evidence presented trial affidavit alone sufficient raise factual questions concerning petitioner innocence resolved simply examining affidavits petition understand majority severely faults petitioner relying affidavits ante common rely affidavits preliminary consideration stage habeas proceeding opportunity credibility determinations comes hearing assuming petitioner entitled one makes sense impugn reliability petitioner evidence ground credibility tested reason credibility tested petitioner habeas proceeding truncated appeals haste deny petitioner relief majority seems confuse question whether petition may dismissed summarily question whether petitioner entitled relief merits claim voiced disappointment obvious eagerness away restriction power execute whomever however please see coleman thompson dissenting opinion see also coleman thompson dissent denial stay execution also expressed doubts whether absence restrictions capital punishment remains constitutional sawyer whitley opinion concurring judgment one thing however certain execution without adequate safeguards unacceptable execution condemned prisoner prove innocent execution person show innocent comes perilously close simple murder one impressive study concluded innocent people executed century including one recently bedau radelet miscarriages justice potentially capital cases radelet bedau putnam spite innocence majority cites study show clemency exercised frequently capital cases showings actual innocence made see ante study also shows requests clemency persons authors believe innocent refused see bedau radelet discussing james adams executed florida may radelet bedau putnam spite innocence also may violate eighth amendment imprison someone actually innocent see robinson california even one day prison cruel unusual punishment crime common cold hand noted death different kind punishment may imposed country point view defendant different severity finality beck alabama quoting gardner florida opinion stevens asked decide case whether petitioner continued imprisonment violate constitution actually innocent see brief petitioner tr oral arg address question majority attempts distinguish johnson ground mississippi previously considered claims like johnson writ error coram nobis ante considered mississippi past practice entertaining claims however determine whether eighth amendment violation occurred whether independent adequate state ground preventing us reaching merits johnson claim see respondent argue independent adequate state ground prevent us reaching merits case also suggests ford distinguishable unlike question guilt innocence issue sanity properly considered proximity execution ante like insanity however newly discovered evidence innocence may appear long conviction sentence johnson new york appeals decision required reconsideration johnson sentence came five years sentenced death majority explanation failure address petitioner substantive due process argument fatuous majority deny petitioner opportunity bring substantive due process claim actual innocence jury previously found actually innocent see ante borrow phrase puts cart horse ibid even procedural due process framework medina california majority analysis incomplete fails consider whether rule transgresses recognized principle fundamental fairness operation quoting dowling last term sawyer whitley adopted different standard determining whether federal habeas petitioner bringing successive abusive defaulted claim shown actual innocence death penalty sawyer petitioner must show clear convincing evidence constitutional error reasonable juror found petitioner eligible death penalty applicable state law standard inappropriate first requires showing constitutional error trial process reasons already explained inappropriate petitioner makes substantive claim actual innocence second draws reasonable juror standard standard sufficiency evidence set forth jackson birginia explain however sufficiency evidence review differs important ways question actual innocence third developed standard prisoners concededly guilty capital crimes petitioner claims actually innocent capital crime justice reads much fact district failed pass sufficiency affidavits suggest wished hold evidentiary hearing retain jurisdiction action filed ante explanation actions justice notes district believed offer relief event ibid