McQuiggin v. Perkins,
569 U.S. ___ (2013)

Annotate this Case



No. 12–126



on writ of certiorari to the united states court of appeals for the sixth circuit

[May 28, 2013]

     Justice Scalia, with whom The Chief Justice and Justice Thomas join, and with whom Justice Alito joins as to Parts I, II, and III, dissenting.

     The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. 28 U. S. C. §2244(d)(1). The gaping hole in today’s opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court’s power to fashion what it concedes is an “exception” to this clear statu- tory command?

     That question is unanswered because there is no answer. This Court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitution vests legislative power only in Congress, which never enacted the exception the Court creates today. That inconvenient truth resolves this case.



     “Actual innocence” has, until today, been an exception only to judge-made, prudential barriers to habeas relief, or as a means of channeling judges’ statutorily conferred discretion not to apply a procedural bar. Never before have we applied the exception to circumvent a categorical statutory bar to relief. We have not done so because we have no power to do so. Where Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect.

     Before AEDPA, the Supreme Court had developed an array of doctrines, see, e.g., Wainwright v. Sykes, 433 U. S. 72, 87 (1977) (procedural default); McCleskey v. Zant, 499 U. S. 467, 489 (1991) (abuse of the writ), to limit the ha- beas practice that it had radically expanded in the early or mid-20th century to include review of the merits of conviction and not merely jurisdiction of the convicting court, see Stone v. Powell, 428 U. S. 465 –478 (1976) (citing Frank v. Mangum, 237 U. S. 309 (1915) ); Brown v. Allen, 344 U. S. 443 –534 (1953) (Jackson, J., concurring in result); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 483–499 (1963). For example, the doctrine of procedural default holds that a state prisoner’s default of his federal claims “in state court pursuant to an independent and adequate state procedural rule” bars federal habeas review of those claims. Coleman v. Thompson, 501 U. S. 722, 750 (1991) . That doctrine is not a statutory or ju- risdictional command; rather, it is a “prudential” rule “grounded in ‘considerations of comity and concerns for the orderly administration of criminal justice.’ ” Dretke v. Haley, 541 U. S. 386 –393 (2004) (quoting Francis v. Henderson, 425 U. S. 536 –539 (1976)).

     And what courts have created, courts can modify. One judge-made exception to procedural default allows a petitioner to proceed where he can demonstrate “cause” for the default and “prejudice.” See Coleman, supra, at 750. As relevant here, we have also expressed a willingness to excuse a petitioner’s default, even absent a showing of cause, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U. S. 478, 496 (1986) ; see Schlup v. Delo, 513 U. S. 298 –327 (1995); House v. Bell, 547 U. S. 518 –537 (2006).

     There is nothing inherently inappropriate (as opposed to merely unwise) about judge-created exceptions to judge-made barriers to relief. Procedural default, for example, raises “no question of a federal district court’s power to entertain an application for a writ of habeas corpus.” Francis, supra, at 538. Where a petitioner would, but for a judge-made doctrine like procedural default, have a good habeas claim, it offends no command of Congress’s for a federal court to consider the petition. But that free-and-easy approach has no place where a statutory bar to habeas relief is at issue. “[T]he power to award the writ by any of the courts of the United States, must be given by written law,” Ex parte Bollman, 4 Cranch 75, 94 (1807) (Marshall, C. J.), and “judgments about the proper scope of the writ are ‘normally for Congress to make,’ ” Felker v. Turpin, 518 U. S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U. S. 314, 323 (1996) ). One would have thought it too obvious to mention that this Court is duty bound to enforce AEDPA, not amend it.


     Because we have no “equitable” power to discard statutory barriers to habeas relief, we cannot simply extend judge-made exceptions to judge-made barriers into the statutory realm. The Court’s insupportable leap from judge-made procedural bars to all procedural bars, including statutory bars, does all the work in its opinion—and there is not a whit of precedential support for it. McCleskey v. Zant applied a “miscarriage of justice” exception to the judge-made abuse-of-the-writ doctrine. 499 U. S., at 487–489, 495. Coleman v. Thompson and Murray v. Carrier applied it to the judge-made procedural-default doctrine. 501 U. S., at 750; 477 U. S., at 496. Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992) , applied it to a variant of procedural default: a state prisoner’s failure adequately to develop material facts in state court. Id., at 8. Kuhlmann v. Wilson, 477 U. S. 436 (1986) , a plurality opinion, applied it to a statute that merely said lower federal courts “need not” entertain successive petitions, thus leaving them with “discretion to entertain successive petitions under some circumstances.” Id., at 449, 451 (emphasis added). Not one of the cases on which the Court relies today supports the extraordinary premise that courts can create out of whole cloth an exception to a statutory bar to relief.

     The opinion for the Court also trots out post-AEDPA cases to prove the irrelevant point that “[t]he miscarriage of justice exception . . . survived AEDPA’s passage.” Ante, at 8. What it ignores, yet again, is that after AEDPA’s passage, as before, the exception applied only to nonstatutory obstacles to relief. Bousley v. United States and House v. Bell were applications of the judge-made doctrine of procedural default. See Bousley, 523 U. S. 614, 623 (1998) ; id., at 625 (Stevens, J., concurring in part and dissenting in part) (“I agree with the Court’s central holding . . . that none of its judge-made rules foreclose petitioner’s collateral attack . . .” (emphasis added)); id., at 630 (Scalia, J., dissenting); House, 547 U. S., at 522. Calderon v. Thompson, 523 U. S. 538 (1998) , a non-AEDPA case, involved the courts of appeals’ “inherent power to recall their mandates, subject to review for an abuse of discretion,” id., at 549; it stands only for the proposition that the miscarriage-of-justice exception is an appropriate “ ‘means of channeling’ ” that discretion, id., at 559 (quoting McCleskey, supra, at 496).

     The Court’s opinion, in its way, acknowledges the dearth of precedential support for its holding. “Prior to AEDPA,” it concedes, “this Court had not ruled that a credible claim of actual innocence could supersede a federal statute of limitations.” Ante, at 13, n. 2. Its explanation for this lack of precedent is that before AEDPA, “petitions for federal habeas relief were not governed by any statute of limitations.” Ibid. That is true but utterly unprobative. There are many statutory bars to relief other than statutes of limitations, and we had never (and before today, have never) created an actual-innocence exception to any of them. The reason why is obvious: Judicially amending a validly enacted statute in this way is a flagrant breach of the separation of powers.


     The Court has no qualms about transgressing such a basic principle. It does not even attempt to cloak its act of judicial legislation in the pretense that it is merely construing the statute; indeed, it freely admits that its opinion recognizes an “exception” that the statute does not contain. Ante, at 7. And it dismisses, with a series of transparent non sequiturs, Michigan’s overwhelming textual argument that the statute provides no such exception and envisions none.

     The key textual point is that two provisions of §2244, working in tandem, provide a comprehensive path to relief for an innocent prisoner who has newly discovered evidence that supports his constitutional claim. Section 2244(d)(1)(D) gives him a fresh year in which to file, starting on “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” while §2244(b)(2)(B) lifts the bar on second or successive petitions. Congress clearly anticipated the scenario of a habeas petitioner with a credible innocence claim and addressed it by crafting an exception (and an exception, by the way, more restrictive than the one that pleases the Court today). One cannot assume that Congress left room for other, judge-made applications of the actual-innocence exception, any more than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate craftsmanship tells us that the designer arranged things just as he wanted them.

     The Court’s feeble rejoinder is that its (judicially in- vented) version of the “actual innocence” exception applies only to a “severely confined category” of cases. Ante, at 10. Since cases qualifying for the actual-innocence exception will be rare, it explains, the statutory path for innocent petitioners will not “be rendered superfluous.” Ibid. That is no answer at all. That the Court’s exception would not entirely frustrate Congress’s design does not weaken the force of the State’s argument that Congress addressed the issue comprehensively and chose to exclude dilatory prisoners like respondent. By the Court’s logic, a statute banning littering could simply be deemed to contain an exception for cigarette butts; after all, the statute as thus amended would still cover something. That is not how a court respectful of the separation of powers should interpret statutes.

     Even more bizarre is the Court’s concern that applying AEDPA’s statute of limitations without recognizing an atextual actual-innocence exception would “accord greater force to a federal deadline than to a similarly designed state deadline.” Ante, at 9; see also ante, at 13, n. 2. The Court terms that outcome “passing strange,” ante, at 9, but it is not strange at all. Only federal statutes of limitations bind federal habeas courts with the force of law; a state statute of limitations is given effect on federal habeas review only by virtue of the judge-made doctrine of procedural default. [ 1 ] See Coleman, 501 U. S., at 730–731. With its eye firmly fixed on something it likes—a shiny new exception to a statute unloved in the best circles—the Court overlooks this basic distinction, which would not trouble a second-year law student armed with a copy of Hart & Wechsler. The Court simply ignores basic legal principles where they pose an obstacle to its policy-driven, free-form improvisation.

     The Court’s statutory-construction blooper reel does not end there. Congress’s express inclusion of innocence-based exceptions in two neighboring provisions of the Act confirms, one would think, that there is no actual-innocence exception to §2244(d)(1). Section 2244(b)(2)(B), as already noted, lifts the bar on claims presented in second or successive petitions where “the factual predicate for the claim could not have been discovered previously through . . . due diligence” and “the facts underlying the claim . . . would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found” the petitioner guilty. Section 2254(e)(2) permits a district court to hold an evidentiary hearing where a diligent state prisoner’s claim relies on new facts that “would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found” him guilty. Ordinarily, we would draw from the express enumeration of these two actual-innocence exceptions the inference that no others were intended.

     The Court’s twisting path to the contrary conclusion is not easy to follow, but I will try. In the Court’s view, the key fact here is that these two provisions of AEDPA codified what had previously been judge-made barriers to relief and applied to them a stricter actual-innocence standard than the courts had been applying. See ante, at 11–12. From this, the Court reasons that Congress made a conscious choice not also to apply the more restrictive actual-innocence standard to the statute of limitations. Ergo, the Court concludes, we are free to apply the more lenient version of the actual-innocence exception. Ante, at 12–13. That clever account ignores the background against which Congress legislated. Of course Congress did not “constrain” application of the actual-innocence exception to the statute of limitations. It felt no need to do so, because it had no reason whatsoever to suspect that any version of the exception would apply to the statute of limitations. The collective efforts of respondent and the majority have turned up not a single instance where this Court has applied the actual-innocence exception to any statutory barrier to habeas relief, much less to a statute of limitations. See Part I–B, supra. What has been said of equitable tolling applies in spades to non-tolling judi- cial inventions: “Congress cannot intend to incorporate, by silence, various forms of equitable tolling that were not generally recognized in the common law at the time of enactment.” Bain & Colella, Interpreting Federal Statutes of Limitations, 37 Creighton L. Rev. 493, 503 (2004). The only conceivable relevance of §§2244(b)(2)(B) and 2254(e)(2) is (1) as we have said, that no other actual-innocence exception was intended, and (2) that if Congress had anticipated that this Court would amend §2244(d)(1) to add an actual-innocence exception (which it surely did not), it would have desired the more stringent formulation and not the expansive formulation applied today, which it specifically rejected for those other provisions.


     Three years ago, in Holland v. Florida, 560 U. S. ___ (2010), we held that AEDPA’s statute of limitations is subject to equitable tolling. That holding offers no support for importing a novel actual-innocence exception. Equit- able tolling—extending the deadline for a filing because of an event or circumstance that deprives the filer, through no fault of his own, of the full period accorded by the statute—seeks to vindicate what might be considered the genuine intent of the statute. By contrast, suspending the statute because of a separate policy that the court believes should trump it (“actual innocence”) is a blatant over- ruling. Moreover, the doctrine of equitable tolling is centuries old, and dates from a time when the separation of the legislative and judicial powers was incomplete. See, e.g., Bree v. Holbech, 2 Doug. 655, 656 (1781) (Mansfield, J.); South-Sea Co. v. Wymondsell, 24 E. R. 1004, 3 P. Wms. 143, 144 (1732); Booth v. Warrington, 2 E. R. 111, 112–113, 4 Bro. P. C. 163, 165–166 (1714); see also Holmberg v. Armbrecht, 327 U. S. 392 –397 (1946); Exploration Co. v. United States, 247 U. S. 435 –447 (1918); Bailey v. Glover, 21 Wall. 342, 348 (1875); Sherwood v. Sutton, 21 F. Cas. 1303, 1304–1305 (No. 12,782) (CCNH 1828) (Story, J.); Jones v. Conoway, 4 Yeates 109 (Pa. 1804). As Professor Manning has explained, until the Glorious Revolution of 1688, the Crown retained “pretensions to independent legislative authority, and English judges continued to serve as the Crown’s agents, in theory and practice a component of the executive. Given these conditions, which distinguish the old English from the American constitutional context, it is not surprising to find a similarly indistinct line between appropriate legislative and judicial functions in matters of interpretation.” Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 36–37 (2001) (footnote omitted). Thus, the doctrine of the equity of the statute, of which equitable tolling was an example, was reflected in Blackstone’s Commentaries “two-thirds of the way through the eighteenth century.” Manning, supra, at 52.

     American courts’ later adoption of the English equitable-tolling practice need not be regarded as a violation of the separation of powers, but can be seen as a reasonable assumption of genuine legislative intent. Colonial legislatures would have assumed that equitable tolling would attend any statute of limitations they adopted. In any case, equitable tolling surely represents such a reasonable assumption today. “It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute. Congress must be presumed to draft limitations periods in light of this background principle.” Young v. United States, 535 U. S. 43 –50 (2002) (internal quotation marks and citations omitted); see Manning, What Divides Textualists from Purposivists? 106 Colum. L. Rev. 70, 81–82, and n. 42 (2006). Congress, being well aware of the longstanding background presumption of equitable tolling, “may provide otherwise if it wishes to do so.” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 96 (1990) . The majority and dissenting opinions in Holland disputed whether that presumption had been overcome, but all agreed that the presumption existed and was a legitimate tool for construing statutes of limitations. See Holland, 560 U. S., at ___ (slip op., at 13); id., at ___ (Scalia, J., dissenting) (slip op., at 1).

     Here, by contrast, the Court has ambushed Congress with an utterly unprecedented (and thus unforeseeable) maneuver. Congressional silence, “while permitting an inference that Congress intended to apply ordinary background” principles, “cannot show that it intended to apply an unusual modification of those rules.” Meyer v. Holley, 537 U. S. 280, 286 (2003) . [ 2 ] Because there is no plausible basis for inferring that Congress intended or could have anticipated this exception, its adoption here amounts to a pure judicial override of the statute Congress enacted. “It is wrong for us to reshape” AEDPA “on the very lathe of judge-made habeas jurisprudence it was designed to repair.” Stewart v. Martinez-Villareal, 523 U. S. 637, 647 (1998) (Scalia, J., dissenting).

*  *  *

     “It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of ‘actual innocence’ will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault.” Bousley, 523 U. S., at 635 (Scalia, J., dissenting). I suspect it is this vision of perfect justice through abundant procedure that impels the Court today. Of course, “we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could.” Ibid. Until today, a district court could dismiss an untimely petition without delving into the underlying facts. From now on, each time an untimely petitioner claims innocence—and how many prisoners asking to be let out of jail do not?—the district court will be obligated to expend limited judicial resources wading into the murky merits of the petitioner’s innocence claim. The Court notes “that tenable actual-innocence gateway pleas are rare.” Ante, at 2. That discouraging reality, intended as reassurance, is in truth “the condemnation of the procedure which has encouraged frivolous cases.” Brown, 344 U. S., at 537 (Jackson, J., concurring in result).

     It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA’s pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims. “[F]loods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones.” Id., at 536–537.

     The “inundation” that Justice Jackson lamented in 1953 “consisted of 541” federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C–2). Today’s decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints.

     I respectfully dissent.


1  If the Court is really troubled by this disparity, there is a way to resolve it that is consistent with the separation of powers: Revise our judge-made procedural-default doctrine to give absolute preclusive effect to state statutes of limitations.
2  The Court concedes that “Congress legislates against the backdrop of existing law,” but protests that “[a]t the time of AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief.” Ante, at 14, n. 3. That is right, of course, but only at an uninformative level of generality; the relevant inquiry is, to which barriers had we applied the exception? Whistling past the graveyard, the Court refuses to engage with this question.
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