Haley v. Dretke

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-41389
_______________
MICHAEL WAYNE HALEY,
Petitioner-Appellee,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
March 19, 2003
ON PETITION FOR
REHEARING EN BANC
(Opinion September 27, 2002,
306 F.3d 257)
Before DEMOSS, STEWART, and DENNIS,
Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is DENIED. The court
having been polled at the request of one of the
members of the court, and a majority of the
judges who are in regular active service not
having voted in favor (FED. R. APP. P. 35 and
5TH CIR. R. 35), the petition for rehearing
en banc is DENIED.

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2
JERRY E. SMITH, Circuit Judge, with whom
JOLLY, JONES, BARKSDALE, EMILIO M.
GARZA, and CLEMENT, Circuit Judges,
join, dissenting from the denial of
rehearing en banc:
This exceptionally important case deserves
the attention of the en banc court. For the first
time, we extend the “actual innocence” excep-
tion for procedurally defaulted habeas corpus
claims to non-capital sentences. The federal
courts of appeals are split three ways on this
question, and the panel opinion aligns this
court with one of the two positions adopted by
only one other circuit. Before this decision is
set in stone as binding circuit precedent, the
issue should receive review and thorough con-
sideration by the entire court.
I.
In general, a habeas petitioner may not raise
a procedurally defaulted claim, i.e., a claim not
presented to the state court, unless he demon-
strates cause for the default and prejudice from
the alleged constitutional violation. Wain-
wright v. Sykes, 433 U.S. 72 (1977). A peti-
tioner may, however, obtain a hearing on a
procedurally defaulted claim if he demon-
strates his actual innocence of the underlying
offense, even if he cannot satisfy the general
cause-and-prejudice test. Murray v. Carrier,
477 U.S. 478, 496 (1986). “Actual
innocence” in that context means the petitioner
did not commit the crime.
The Supreme Court has extended the actual
innocence exception for the cause-and-
prejudice test to the context of capital sen-
tencing, meaning a petitioner who has com-
mitted the crime may, nonetheless, be “actually
innocent” of the penalty of death. Sawyer v.
Whitley, 505 U.S. 333 (1992). Neither the
Supreme Court nor this court, however, has
extended the exception to non-capital
sentences.1
This case presents a perfect opportunity for
the full court to consider whether to extend
the exception to non-capital sentences where
the petitioner is not actually innocent of the
crime. This purely legal question is unsullied
by factual disputes: Texas concedes that
Haley was not eligible under Texas law for the
sentence he received, because the indictment
wrongly alleged that Haley’s prior drug
conviction was final before he committed his
prior robbery, a chronological order necessary
to Haley’s sentence enhancement.2
It bears repeating that Texas concedes this
error and argues only that the actual innocence
exception should not extend to non-capital
sentences. Thus, this case squarely presents a
legal question of exceptional importance in an
unusually pristine form.
II.
A.
In various procedural settings, three circuits
have held that the actual innocence exception
1 We have assumed twice, without deciding,
that the exception extends to non-capital sentences.
See Sones v. Hargett, 61 F.3d 410, 413 (5th Cir.
1995); Smith v. Collins, 977 F.2d 951, 959 (5th
Cir. 1992).
2 The panel suggests a second error in the in-
dictment, namely, an erroneous allegation that Hal-
ey’s prior robbery offense involved a deadly
weapon. Haley v. Cockrell, 306 F.3d 257, 261 &
n. 7, 262, 263 & n.10, 264, 267 (5th Cir. 2002).
In his response to the petition for rehearing en
banc, Haley concedes that any such error is
irrelevant, because his enhancement rested solely
on the chronological order of his convictions.

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3
does not extend to any non-capital sentences.3
In a 28 U.S.C. § 2255 case, the Eighth Circuit
held that the actual innocence exception does
not apply to non-capital sentences. Embrey v.
Hershberger, 131 F.3d 739 (8th Cir. 1997) (en
banc). The court carefully reviewed Supreme
Court precedent, in particular Sawyer, and
concluded that “Sawyer, in terms, applies only
to the sentencing phase of death cases.” Em-
brey, 131 F.3d at 740.
The Eighth Circuit also relied on the Tenth
Circuit’s decision in United States v. Richards,
5 F.3d 1369, 1371 (10th Cir. 1993), which
refused to extend the exception. In Richards,
the court upheld the government’s objection to
a second § 2255 motion, based on the abuse of
writ doctrine. Id. at 1370. The petitioner had
argued that he should be allowed to file a
second motion based on a showing of actual
innocence of his non-capital sentence. Id. at
1371. The Tenth Circuit rejected this
argument out of hand: “A person cannot be
actually innocent of a noncapital sentence[.]”
Id. The Tenth Circuit has reaffirmed this
holding, in a 28 U.S.C. § 2254 case, after the
enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Reid
v. Oklahoma, 101 F.3d 628, 630 (10th Cir.
1996).
Similarly, if more dramatically, the Seventh
Circuit has held that the exception does not
survive AEDPA. Hope v. United States, 108
F.3d 119 (7th Cir. 1997). The prisoner sought
permission to file a second § 2255 motion
based solely on an improper sentencing
enhancement. Id. at 120. The court reasoned
that AEDPA allows second petitions only if no
reasonable factfinder would have convicted the
prisoner of the “offense.” Id. Thus, the
Seventh Circuit, concluding that AEDPA
eliminated the exception, overruled its caselaw
extending the exception to non-capital
sentences. Id. (citing Mills v. Jordan, 979
F.2d 1273, 1278 (7th Cir. 1992)).
On the second side of the three-way split,
the Second Circuit alone has held that the ac-
tual innocence exception extends to all non-
capital sentences. Spence v. Superintendent,
Great Meadow Corr. Facility, 219 F.3d 162
(2d Cir. 2000). In Spence, the prisoner’s pro-
bation was rescinded and replaced with a sen-
tence of up to twenty-five years’ imprisonment
for which he was not legally eligible. Id. at
165. The Second Circuit, however, did not
equivocate or rest on the severity of the
wrongly-imposed sentence. The court held
that the actual innocence exception applies ac-
ross the board “to the sentencing phase of a
noncapital trial.” Id. at 171.
Alone on the third side of the splitSSalone,
that is, until joined by the panel in the instant
caseSSthe Fourth Circuit has held that the ac-
tual innocence exception extends only to those
non-capital sentences imposed under habitual
offender statutes. Like the Second Circuit, the
Fourth Circuit originally had held that the ac-
tual innocence exception extends to all non-
capital sentences. United States v. Maybeck,
23 F.3d 888, 893 (4th Cir. 1994).
Five years later, the Fourth Circuit, perhaps
recognizing that this holding was untenable,
limited the scope of Maybeck. United States
v. Mikalajunas, 186 F.3d 490 (4th Cir. 1999).
3 See Haley, 306 F.3d at 265 (collecting cases).
Neither the cause-and-prejudice test nor the actual
innocence exception to that test varies based on the
posture of the case. Indeed, Sawyer, which first
applied the actual innocence exception to capital
sentences, was a successive-writ case, not an or-
dinary procedural-default case.

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4
Citing the frightening practical results of May-
beck and its tension with Supreme Court case-
law, the court held that the actual innocence
exception “applies in noncapital sentencing
only in the context of eligibility for application
of a career offender or other habitual offender
guideline provision.” Id. at 495. This holding
provoked a vigorous dissent arguing that the
distinction was unprincipled and unsustainable.
Id. at 497-502 (Murnaghan, J., dissenting).
This court’s panel has chosen to adopt the
reasoning used in Mikalajunas.
B.
Unfortunately, the Supreme Court has not
addressed this question. Indeed, the limited
implications of its caselaw can be read to point
in opposite directions. Given the exceptional
importance of the question and the lack of
guidance from above, the full court should
have reheard this case.
The panel finds support in Sawyer and Her-
rera v. Collins, 506 U.S. 390 (1993). The
panel observes that “[t]he Court did not
foreclose [in Sawyer] the application of the
actual innocence exception to noncapital
sentencing cases.” Haley, 306 F.3d at 265.
This is correct, but Sawyer did not present the
question. Moreover, some language in Sawyer
indicates that the Court did not intend the
lower courts to extend the act ual innocence
exception to non-capital sentencing cases.
The Court “acknowledged that actual inno-
cence ‘does not translate easily into the
context of an alleged error at the sentencing
phase of a trial on a capital offense.’” Sawyer,
505 U.S. at 340 (quoting Smith v. Murray,
477 U.S. 527, 537 (1986)). The Court then
observed that “[a] prototypical example of
‘actual innocence’ in a colloquial sense is the
case where the State has convicted the wrong
person of the crime.” Id. This example
indicates why, “[i]n the context of a
noncapital case, the concept of ‘actual
innocence’ is easy to grasp.” Id. at 341
(emphases added). Finally, the Court
described its task in Sawyer as “striv[ing] to
construct an analog to the simpler situation
represented by the case of a noncapital
defendant.” Id. (emphasis added).
The Tenth and Eighth Circuits inferred
from this reasoning that the Supreme Court
never intended the lower courts to extend the
actual innocence exception to non-capital sen-
tencing cases. Otherwise, why is the concept
of actual innocence so “easy to grasp” in the
non-capital context? And why is a non-capital
case a “simpler situation”? In the Tenth
Circuit’s view, it is “because it simply means
the person didn’t commit the crime.”
Richards, 5 F.3d at 1371. The Eighth Circuit
concluded that “the most natural inference to
draw from these observations on the Court’s
part is that” the actual innocence exception
should not extend to non-capital sentencing.
Embrey, 131 F.3d at 741.
At the same time, other language in Sawyer
suggests the Court’s openness to applying the
actual innocence exception to non-capital sen-
tences. For example, the Court stated that
“[i]n Smith, [it] found no miscarriage of justice
in the failure to examine the merits of pro-
cedurally defaulted claims in the capital sen-
tencing context.” Sawyer, 505 U.S. at 339
(emphasis added) (citation omitted). The
Court also stated that “[t]he present case re-
quires us to further amplify the meaning of ‘ac-
tual innocence’ in the setting of capital pun-
ishment.” Id. at 340 (emphasis added).
The meanings of these passages are
debatable. One might argue, though, that the

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5
Court would not have added the qualifying
phrases “in the capital sentencing context” or
“in the setting of capital punishment” if it
intended to extend the exception only to
capital sentences.
But “[m]ore importantly,” according to the
panel, “the Court has noted that the purpose of
the [actual innocence] rule ‘is grounded in the
equitable discretion of habeas courts to see
that federal constitutional errors do not result
in the incarceration of innocent persons.’”
Haley, 306 F.3d at 265 (quoting Herrera, 506
U.S. at 404). Herrera, however, is not
especially helpful to the question before this
court.
In Herrera, the petitioner claimed to be in-
nocent of the murder of which he was
convicted. Haley, on the other hand, is not
innocent, nor does he claim to be; he is a re-
cidivist offender duly convicted after a full and
fair trial and whose conviction the state courts
repeatedly upheld on appeal and collateral re-
view. Further, the Supreme Court denied re-
lief in Herrera. Even if we were to conclude
that the actual innocence exception extends to
non-capital sentences, therefore, Herrera
would not support the extension.
In light of the limited guidance from the
Supreme Court, and ambiguity in what
guidance there is, the en banc court should
have reheard this case to determine whether
and, if so, how the actual innocence exception
applies to non-capital sentences. Accordingly,
I respectfully dissent from the denial of
rehearing en banc.

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