[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases [JURIST report] on Monday. First, the court heard McQuiggin v. Perkins [transcript, PDF] and considered if “actual innocence” is an exception to not pursuing a timely habeas claim under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) [text]. The attorney for Greg McQuiggin, a warden in Michigan, argued that prisoners have explicitly one year under the AEDPA to file their habeas claim once they find evidence that suggests their innocence. The attorney for Floyd Perkins argued that the possible miscarriage of justice overrides procedural time limits:

First, with respect to the timing issue, the Court had applied the miscarriage-of-justice exception to abusive petitions, so there is a timing concern invoked there because you’re filing a second petition when you could have raised issues earlier, and the Court has said even in that timing context, not a statute of limitations, but it certainly invokes timing concerns, that even in that instance the miscarriage of justice would still overcome the rule.

Justice Samuel Alito pointed out, in response, that most incarcerated people believe they are innocent. “Well, you are asking for what is potentially a very big exception to the 1-year statute of limitations. If you took a poll of all of the prisoners in Michigan, how many of them do you think would say they are actually innocent? … But how many would say that they are actually innocent? A lot. And a lot would be able to come up with evidence that is equal to what the petition—what the Respondent here has come up with.”

The court also heard arguments in Trevino v. Thaler [transcript, PDF] on a defense lawyer not putting forward mitigating factors in defense of his client analyzed under last term’s decision in Martinez v. Ryan [JURIST report]. In particular, the court considered if a plaintiff can bring up ineffective counsel at the appellate level, although the plaintiff might not have brought it up before due to the alleged ineffective counsel. The attorney for Carlos Trevino argued that the time limits imposed on the new attorney in a habeas claim in Texas make the claims impracticable:

But the bottom line in our situation in Texas is that we have a scheme. We have a set of laws and rules that channel these type of claims. … [T]he Rules of Appellate Procedure 21.8 talk about the limitations of—the number of days that you have to expand the record in a motion for new trial. 75 days, the district court loses jurisdiction, they cannot hear anything else on this case. The record in this case wasn’t even available for 7 months after the date of the trial.
So even with a new attorney that’s appointed—first of all, that new attorney is a stranger to the case. He doesn’t know anything about the case. He’s not in a position to talk to the client. The client is not the best person to understand the Rules of Appellate Procedure. So he’s got to wait on that trial record, first of all, to see what’s there.

The attorney for Texas argued there was no deficiency in the state’s procedure. “So the way that the procedure in Texas would work, as it does in Kansas, is that the newly appointed direct appeal lawyer, who has no conflict and is therefore free to accuse trial counsel of being ineffective, would file a motion to stay the appeal, abate it and remand it to the trial court. The showing in both States is roughly the same; it’s a facially plausible claim of ineffectiveness.”