McQuiggin v. Perkins

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MCQUIGGIN, WARDEN v. PERKINS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 12–126. Argued February 25, 2013—Decided May 28, 2013

Rodney Henderson was found stabbed to death after leaving a party in

Flint, Michigan, with respondent Floyd Perkins and Damarr Jones.

Perkins was charged with murder. Jones, the key prosecution wit-

ness, testified that Perkins alone committed the murder while Jones

looked on. Perkins, however, testified that Jones and Henderson left

him during the evening, and that he later saw Jones with blood on

his clothing. Perkins was convicted of first-degree murder and sen-

tenced to life in prison without the possibility of parole. His convic-

tion became final in 1997.

The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) gives a state prisoner one year to file a federal habeas peti-

tion, starting from “the date on which the judgment became final.”

28 U. S. C. §2244(d)(1)(A). But if the petition alleges newly discov-

ered evidence, the filing deadline is one year from “the date on which

the factual predicate of the claim . . . could have been discovered

through . . . due diligence.” §2244(d)(1)(D).

More than 11 years after his conviction became final, Perkins filed

his federal habeas petition, alleging, inter alia, ineffective assistance

of trial counsel. To overcome AEDPA’s time limitations, he asserted

newly discovered evidence of actual innocence, relying on three affi-

davits, the most recent dated July 16, 2002, each pointing to Jones as

the murderer. The District Court found that, even if the affidavits

could be characterized as evidence newly discovered, Perkins had

failed to show diligence entitling him to equitable tolling of AEDPA’s

limitations period. Alternatively, the court found, Perkins had not

shown that, taking account of all the evidence, no reasonable juror

would have convicted him. The Sixth Circuit reversed. Acknowledg-

ing that Perkins’ petition was untimely and that he had not diligently

2 MCQUIGGIN v. PERKINS

Syllabus

pursued his rights, the court held that Perkins’ actual-innocence

claim allowed him to present his ineffective-assistance-of-counsel

claim as if it had been filed on time. In so ruling, the court apparent-

ly considered Perkins’ delay irrelevant to appraisal of his actual-

innocence claim.

Held:

1. Actual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar, as

it was in Schlup v. Delo, 513 U. S. 298, and House v. Bell, 547 U. S.

518, or expiration of the AEDPA statute of limitations, as in this

case. Pp. 7–14.

(a) Perkins, who waited nearly six years from the date of the

2002 affidavit to file his petition, maintains that an actual-innocence

plea can overcome AEDPA’s one-year limitations period. This Court’s

decisions support his view. The Court has not resolved whether a

prisoner may be entitled to habeas relief based on a freestanding ac-

tual-innocence claim, Herrera v. Collins, 506 U. S. 390, 404–405, but

it has recognized that a prisoner “otherwise subject to defenses of

abusive or successive use of the writ may have his federal constitu-

tional claim considered on the merits if he makes a proper showing of

actual innocence,” id., at 404.

The Court has applied this “fundamental miscarriage of justice ex-

ception” to overcome various procedural defaults, including, as most

relevant here, failure to observe state procedural rules, such as filing

deadlines. See Coleman v. Thompson, 501 U. S. 722, 750. The excep-

tion, the Court’s decisions bear out, survived AEDPA’s passage. See,

e.g., Calderon v. Thompson, 523 U. S. 538, 558; House, 547 U. S., at

537–538. These decisions “see[k] to balance the societal interests in

finality, comity, and conservation of scarce judicial resources with the

individual interest in justice that arises in the extraordinary case.”

Schlup, 513 U. S., at 324. Sensitivity to the injustice of incarcerating

an innocent individual should not abate when the impediment is

AEDPA’s statute of limitations. Pp. 7–9.

(b) The State urges that recognition of a miscarriage of justice

exception would render §2244(d)(1)(D) superfluous. That is not so,

for AEDPA’s time limitations apply to the typical case in which

no actual-innocence claim is made, while the exception applies to

a severely confined category: cases in which new evidence shows

“it is more likely than not that ‘no reasonable juror’ would have con-

victed [the petitioner],” Schlup, 513 U. S., at 329. Many petitions

that could not pass through the actual-innocence gateway will be

timely or not measured by §2244(d)(1)(D)’s triggering provision. Nor

does Congress’ inclusion of a miscarriage of justice exception in

§§2244(b)(2)(B) and 2254(e)(2) indicate an intent to preclude courts

Cite as: 569 U. S. ____ (2013) 3

Syllabus

from applying the exception in §2244(d)(1)(D) cases. Congress did

not simply incorporate the miscarriage of justice exception into

§§2244(b)(2)(B) and 2254(e)(2). Rather, Congress constrained the ex-

ception’s application with respect to second-or-successive petitions

and the holding of evidentiary hearings in federal court. The more

rational inference to draw from the incorporation of a modified ver-

sion of the exception into other provisions of AEDPA is that, in a case

not governed by those provisions, the exception survived AEDPA’s

passage intact and unrestricted. Pp. 9–14.

2. A federal habeas court, faced with an actual-innocence gateway

claim, should count unjustifiable delay on a habeas petitioner’s part,

not as an absolute barrier to relief, but as a factor in determining

whether actual innocence has been reliably shown. A petitioner in-

voking the miscarriage of justice exception “must show that it is more

likely than not that no reasonable juror would have convicted him in

the light of the new evidence.” Schlup, 513 U. S., at 327. Unex-

plained delay in presenting new evidence bears on the determination

whether the petitioner has made the requisite showing. Taking ac-

count of the delay in the context of the merits of a petitioner’s actual-

innocence claim, rather than treating timeliness as a threshold in-

quiry, is tuned to the exception’s underlying rationale of ensuring

“that federal constitutional errors do not result in the incarceration of

innocent persons.” Herrera, 506 U. S., at 404. Pp. 14–16.

3. Here, the District Court’s appraisal of Perkins’ petition as insuf-

ficient to meet Schlup’s actual-innocence standard should be disposi-

tive, absent cause, which this Court does not currently see, for the

Sixth Circuit to upset that evaluation. Under Schlup’s demanding

standard, the gateway should open only when a petition presents “ev-

idence of innocence so strong that a court cannot have confidence in

the outcome of the trial unless the court is also satisfied that the trial

was free of nonharmless constitutional error.” 513 U. S., at 316.

Pp. 16–17.

670 F. 3d 665, vacated and remanded.

GINSBURG, J., delivered the opinion of the Court, in which KENNEDY,

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissent-

ing opinion, in which ROBERTS, C. J., and THOMAS, J., joined, and in

which ALITO, J., joined as to Parts I, II, and III.

Cite as: 569 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–126

_________________

GREG MCQUIGGIN, WARDEN, PETITIONER v. FLOYD

PERKINS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[May 28, 2013]

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns the “actual innocence” gateway to

federal habeas review applied in Schlup v. Delo, 513 U. S.

298 (1995), and further explained in House v. Bell, 547

U. S. 518 (2006). In those cases, a convincing showing of

actual innocence enabled habeas petitioners to overcome

a procedural bar to consideration of the merits of their

constitutional claims. Here, the question arises in the

context of 28 U. S. C. §2244(d)(1), the statute of limitations

on federal habeas petitions prescribed in the Antiterrorism

and Effective Death Penalty Act of 1996. Specifically,

if the petitioner does not file her federal habeas peti-

tion, at the latest, within one year of “the date on which

the factual predicate of the claim or claims presented

could have been discovered through the exercise of due

diligence,” §2244(d)(1)(D), can the time bar be overcome by

a convincing showing that she committed no crime?

We hold that actual innocence, if proved, serves as a

gateway through which a petitioner may pass whether the

impediment is a procedural bar, as it was in Schlup and

House, or, as in this case, expiration of the statute of

2 MCQUIGGIN v. PERKINS

Opinion of the Court

limitations. We caution, however, that tenable actual-

innocence gateway pleas are rare: “[A] petitioner does not

meet the threshold requirement unless he persuades the

district court that, in light of the new evidence, no juror,

acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.” Schlup, 513 U. S., at 329; see

House, 547 U. S., at 538 (emphasizing that the Schlup

standard is “demanding” and seldom met). And in making

an assessment of the kind Schlup envisioned, “the timing

of the [petition]” is a factor bearing on the “reliability of

th[e] evidence” purporting to show actual innocence.

Schlup, 513 U. S., at 332.

In the instant case, the Sixth Circuit acknowledged that

habeas petitioner Perkins (respondent here) had filed his

petition after the statute of limitations ran out, and had

“failed to diligently pursue his rights.” Order in No. 09–

1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of Appealabil-

ity). Nevertheless, the Court of Appeals reversed the

decision of the District Court denying Perkins’ petition,

and held that Perkins’ actual-innocence claim allowed him

to pursue his habeas petition as if it had been filed on

time. 670 F. 3d 665, 670 (2012). The appeals court ap-

parently considered a petitioner’s delay irrelevant to ap-

praisal of an actual-innocence claim. See ibid.

We vacate the Court of Appeals’ judgment and remand

the case. Our opinion clarifies that a federal habeas

court, faced with an actual-innocence gateway claim, should

count unjustifiable delay on a habeas petitioner’s part,

not as an absolute barrier to relief, but as a factor in

determining whether actual innocence has been re-

liably shown. See Brief for Respondent 45 (habeas court

“could . . . hold the unjustified delay against the petitioner

when making credibility findings as to whether the [actual-

innocence] exception has been met”).

Cite as: 569 U. S. ____ (2013) 3

Opinion of the Court

I

A

On March 4, 1993, respondent Floyd Perkins attended

a party in Flint, Michigan, in the company of his friend,

Rodney Henderson, and an acquaintance, Damarr Jones.

The three men left the party together. Henderson was

later discovered on a wooded trail, murdered by stab

wounds to his head.

Perkins was charged with the murder of Henderson. At

trial, Jones was the key witness for the prosecution. He

testified that Perkins alone committed the murder while

Jones looked on. App. 55.

Chauncey Vaughn, a friend of Perkins and Henderson,

testified that, prior to the murder, Perkins had told him

he would kill Henderson, id., at 39, and that Perkins later

called Vaughn, confessing to his commission of the crime.

Id., at 36–38. A third witness, Torriano Player, also a

friend of both Perkins and Henderson, testified that Per-

kins told him, had he known how Player felt about Hen-

derson, he would not have killed Henderson. Id., at 74.

Perkins, testifying in his own defense, offered a different

account of the episode. He testified that he left Hender-

son and Jones to purchase cigarettes at a convenience store.

When he exited the store, Perkins related, Jones and

Henderson were gone. Id., at 84. Perkins said that he

then visited his girlfriend. Id., at 87. About an hour later,

Perkins recalled, he saw Jones standing under a street-

light with blood on his pants, shoes, and plaid coat. Id.,

at 90.

The jury convicted Perkins of first-degree murder. He

was sentenced to life in prison without the possibility of

parole on October 27, 1993. The Michigan Court of Ap-

peals affirmed Perkins’ conviction and sentence, and the

Michigan Supreme Court denied Perkins leave to appeal

on January 31, 1997. Perkins’ conviction became final on

May 5, 1997.

4 MCQUIGGIN v. PERKINS

Opinion of the Court

B

Under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 110 Stat. 1214, a state prisoner

ordinarily has one year to file a federal petition for habeas

corpus, starting from “the date on which the judgment

became final by the conclusion of direct review or the ex-

piration of the time for seeking such review.” 28 U. S. C.

§2244(d)(1)(A). If the petition alleges newly discovered

evidence, however, the filing deadline is one year from

“the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.” §2244(d)(1)(D).

Perkins filed his federal habeas corpus petition on June

13, 2008, more than 11 years after his conviction became

final. He alleged, inter alia, ineffective assistance on the

part of his trial attorney, depriving him of his Sixth

Amendment right to competent counsel. To overcome

AEDPA’s time limitations, Perkins asserted newly discov-

ered evidence of actual innocence. He relied on three

affidavits, each pointing to Jones, not Perkins, as Hender-

son’s murderer.

The first affidavit, dated January 30, 1997, was submit-

ted by Perkins’ sister, Ronda Hudson. Hudson stated that

she had heard from a third party, Louis Ford, that Jones

bragged about stabbing Henderson and had taken his

clothes to the cleaners after the murder. App. to Pet. for

Cert. 54a–55a. The second affidavit, dated March 16,

1999, was subscribed to by Demond Louis, Chauncey

Vaughn’s younger brother. Louis stated that, on the night

of the murder, Jones confessed to him that he had just

killed Henderson. Louis also described the clothes Jones

wore that night, bloodstained orange shoes and orange

pants, and a colorful shirt. Id., at 50a–53a. The next day,

Louis added, he accompanied Jones, first to a dumpster

where Jones disposed of the bloodstained shoes, and then

to the cleaners. Finally, Perkins presented the July 16,

Cite as: 569 U. S. ____ (2013) 5

Opinion of the Court

2002 affidavit of Linda Fleming, an employee at Pro-Clean

Cleaners in 1993. She stated that, on or about March 4,

1993, a man matching Jones’s description entered the

shop and asked her whether bloodstains could be removed

from the pants and a shirt he brought in. The pants were

orange, she recalled, and heavily stained with blood, as

was the multicolored shirt left for cleaning along with the

pants. Id., at 48a–49a.

The District Court found the affidavits insufficient to

entitle Perkins to habeas relief. Characterizing the affi-

davits as newly discovered evidence was “dubious,” the

District Court observed, in light of what Perkins knew

about the underlying facts at the time of trial. Id., at 29a.

But even assuming qualification of the affidavits as evi-

dence newly discovered, the District Court next explained,

“[Perkins’] petition [was] untimely under §2244(d)(1)(D).”

Ibid. “[If] the statute of limitations began to run as of

the date of the latest of th[e] affidavits, July 16, 2002,” the

District Court noted, then “absent tolling, [Perkins] had

until July 16, 2003 in which to file his habeas petition.”

Ibid. Perkins, however, did not file until nearly five years

later, on June 13, 2008.

Under Sixth Circuit precedent, the District Court stated,

“a habeas petitioner who demonstrates a credible claim

of actual innocence based on new evidence may, in ex-

ceptional circumstances, be entitled to equitable tolling

of habeas limitations.” Id., at 30a. But Perkins had not

established exceptional circumstances, the District Court

determined. In any event, the District Court observed,

equitable tolling requires diligence and Perkins “ha[d]

failed utterly to demonstrate the necessary diligence in

exercising his rights.” Id., at 31a. Alternatively, the Dis-

trict Court found that Perkins had failed to meet the strict

standard by which pleas of actual innocence are mea-

sured: He had not shown that, taking account of all

the evidence, “it is more likely than not that no reasonable

6 MCQUIGGIN v. PERKINS

Opinion of the Court

juror would have convicted him,” or even that the evidence

was new. Id., at 30a–31a.

Perkins appealed the District Court’s judgment. Al-

though recognizing that AEDPA’s statute of limitations

had expired and that Perkins had not diligently pursued

his rights, the Sixth Circuit granted a certificate of ap-

pealability limited to a single question: Is reasonable

diligence a precondition to relying on actual innocence as a

gateway to adjudication of a federal habeas petition on the

merits? Certificate of Appealability 2–3.

On consideration of the certified question, the Court of

Appeals reversed the District Court’s judgment. Adhering

to Circuit precedent, Souter v. Jones, 395 F. 3d 577, 597–

602 (2005), the Sixth Circuit held that Perkins’ gateway

actual-innocence allegations allowed him to present his

ineffective-assistance-of-counsel claim as if it were filed

on time. On remand, the Court of Appeals instructed, “the

[D]istrict [C]ourt [should] fully consider whether Perkins

assert[ed] a credible claim of actual innocence.” 670 F. 3d,

at 676.

We granted certiorari to resolve a Circuit conflict on

whether AEDPA’s statute of limitations can be overcome

by a showing of actual innocence. 568 U. S. ___ (2012).

Compare, e.g., San Martin v. McNeil, 633 F. 3d 1257,

1267–1268 (CA11 2011) (“A court . . . may consider an

untimely §2254 petition if, by refusing to consider the

petition for untimeliness, the court thereby would endorse

a ‘fundamental miscarriage of justice’ because it would

require that an individual who is actually innocent remain

imprisoned.”), with, e.g., Escamilla v. Jungwirth, 426

F. 3d 868, 871–872 (CA7 2005) (“Prisoners claiming to be

innocent, like those contending that other events spoil the

conviction, must meet the statutory requirement of timely

action.”). See also Rivas v. Fischer, 687 F. 3d 514, 548

(CA2 2012) (collecting cases).

Cite as: 569 U. S. ____ (2013) 7

Opinion of the Court

II

A

In Holland v. Florida, 560 U. S. ___ (2010), this Court

addressed the circumstances in which a federal habeas

petitioner could invoke the doctrine of “equitable tolling.”

Holland held that “a [habeas] petitioner is entitled to

equitable tolling only if he shows (1) that he has been

pursuing his rights diligently, and (2) that some extraor-

dinary circumstance stood in his way and prevented timely

filing.” Id., at ___ (slip op., at 16–17) (internal quotation

marks omitted). As the courts below comprehended,

Perkins does not qualify for equitable tolling. In posses-

sion of all three affidavits by July 2002, he waited nearly

six years to seek federal postconviction relief. “Such a

delay falls far short of demonstrating the . . . diligence”

required to entitle a petitioner to equitable tolling. App. to

Pet. for Cert. 31a (District Court opinion). See also Certif-

icate of Appealability 2.

Perkins, however, asserts not an excuse for filing after

the statute of limitations has run. Instead, he maintains

that a plea of actual innocence can overcome AEDPA’s

one-year statute of limitations. He thus seeks an equi-

table exception to §2244(d)(1), not an extension of the time

statutorily prescribed. See Rivas, 687 F. 3d, at 547, n. 42

(distinguishing from “equitable tolling” a plea to override

the statute of limitations when actual innocence is shown).

Decisions of this Court support Perkins’ view of the

significance of a convincing actual-innocence claim. We

have not resolved whether a prisoner may be entitled to

habeas relief based on a freestanding claim of actual

innocence. Herrera v. Collins, 506 U. S. 390, 404–405

(1993). We have recognized, however, that a prisoner

“otherwise subject to defenses of abusive or successive use

of the writ [of habeas corpus] may have his federal consti-

tutional claim considered on the merits if he makes a

proper showing of actual innocence.” Id., at 404 (citing

8 MCQUIGGIN v. PERKINS

Opinion of the Court

Sawyer v. Whitley, 505 U. S. 333 (1992)). See also Murray

v. Carrier, 477 U. S. 478, 496 (1986) (“[W]e think that in

an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ even

in the absence of a showing of cause for the procedural

default.”). In other words, a credible showing of actual

innocence may allow a prisoner to pursue his constitu-

tional claims (here, ineffective assistance of counsel) on the

merits notwithstanding the existence of a procedural bar

to relief. “This rule, or fundamental miscarriage of justice

exception, is grounded in the ‘equitable discretion’ of

habeas courts to see that federal constitutional errors do

not result in the incarceration of innocent persons.” Her-

rera, 506 U. S., at 404.

We have applied the miscarriage of justice exception to

overcome various procedural defaults. These include

“successive” petitions asserting previously rejected claims,

see Kuhlmann v. Wilson, 477 U. S. 436, 454 (1986) (plural-

ity opinion), “abusive” petitions asserting in a second

petition claims that could have been raised in a first peti-

tion, see McCleskey v. Zant, 499 U. S. 467, 494–495

(1991), failure to develop facts in state court, see Keeney v.

Tamayo-Reyes, 504 U. S. 1, 11–12 (1992), and failure to

observe state procedural rules, including filing deadlines,

see Coleman v. Thompson, 501 U. S. 722, 750 (1991);

Carrier, 477 U. S., at 495–496.

The miscarriage of justice exception, our decisions bear

out, survived AEDPA’s passage. In Calderon v. Thomp-

son, 523 U. S. 538 (1998), we applied the exception to hold

that a federal court may, consistent with AEDPA, recall

its mandate in order to revisit the merits of a decision.

Id., at 558 (“The miscarriage of justice standard is alto-

gether consistent . . . with AEDPA’s central concern that

the merits of concluded criminal proceedings not be revis-

ited in the absence of a strong showing of actual inno-

Cite as: 569 U. S. ____ (2013) 9

Opinion of the Court

cence.”). In Bousley v. United States, 523 U. S. 614, 622

(1998), we held, in the context of §2255, that actual in-

nocence may overcome a prisoner’s failure to raise a con-

stitutional objection on direct review. Most recently, in

House, we reiterated that a prisoner’s proof of actual

innocence may provide a gateway for federal habeas re-

view of a procedurally defaulted claim of constitutional

error. 547 U. S., at 537–538.

These decisions “see[k] to balance the societal interests

in finality, comity, and conservation of scarce judicial re-

sources with the individual interest in justice that arises

in the extraordinary case.” Schlup, 513 U. S., at 324.

Sensitivity to the injustice of incarcerating an innocent

individual should not abate when the impediment is

AEDPA’s statute of limitations.

As just noted, see supra, at 8, we have held that the

miscarriage of justice exception applies to state procedural

rules, including filing deadlines. Coleman, 501 U. S., at

750. A federal court may invoke the miscarriage of justice

exception to justify consideration of claims defaulted in

state court under state timeliness rules. See ibid. The

State’s reading of AEDPA’s time prescription would thus

accord greater force to a federal deadline than to a simi-

larly designed state deadline. It would be passing strange

to interpret a statute seeking to promote federalism and

comity as requiring stricter enforcement of federal proce-

dural rules than procedural rules established and enforced

by the States.

B

The State ties to §2244(d)’s text its insistence that

AEDPA’s statute of limitations precludes courts from

considering late-filed actual-innocence gateway claims.

“Section 2244(d)(1)(D),” the State contends, “forecloses any

argument that a habeas petitioner has unlimited time to

present new evidence in support of a constitutional claim.”

10 MCQUIGGIN v. PERKINS

Opinion of the Court

Brief for Petitioner 17. That is so, the State maintains,

because AEDPA prescribes a comprehensive system for

determining when its one-year limitations period begins to

run. “Included within that system,” the State observes, “is

a specific trigger for the precise circumstance presented

here: a constitutional claim based on new evidence.” Ibid.

Section 2244(d)(1)(D) runs the clock from “the date on

which the factual predicate of the claim . . . could have

been discovered through the exercise of due diligence.” In

light of that provision, the State urges, “there is no need

for the courts to act in equity to provide additional time for

persons who allege actual innocence as a gateway to their

claims of constitutional error.” Ibid. Perkins’ request for

an equitable exception to the statute of limitations, the

State charges, would “rende[r] superfluous this carefully

scripted scheme.” Id., at 18.

The State’s argument in this regard bears blinders.

AEDPA’s time limitations apply to the typical case in

which no allegation of actual innocence is made. The

miscarriage of justice exception, we underscore, applies to

a severely confined category: cases in which new evidence

shows “it is more likely than not that no reasonable ju-

ror would have convicted [the petitioner].” Schlup, 513

U. S., at 329 (internal quotation marks omitted). Section

2244(d)(1)(D) is both modestly more stringent (because it

requires diligence) and dramatically less stringent (be-

cause it requires no showing of innocence). Many petitions

that could not pass through the actual-innocence gateway

will be timely or not measured by §2244(d)(1)(D)’s trigger-

ing provision. That provision, in short, will hardly be

rendered superfluous by recognition of the miscarriage of

justice exception.

The State further relies on provisions of AEDPA other

than §2244(d)(1)(D), namely, §§2244(b)(2)(B) and 2254(e)

(2), to urge that Congress knew how to incorporate the

miscarriage of justice exception when it was so minded.

Cite as: 569 U. S. ____ (2013) 11

Opinion of the Court

Section 2244(b)(2)(B), the State observes, provides that

a petitioner whose first federal habeas petition has al-

ready been adjudicated when new evidence comes to light

may file a second-or-successive petition when, and only

when, the facts underlying the new claim would “es-

tablish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.”

§2244(b)(2)(B)(ii). And §2254(e)(2), which generally bars

evidentiary hearings in federal habeas proceedings ini-

tiated by state prisoners, includes an exception for pris-

oners who present new evidence of their innocence. See

§§2254(e)(2)(A)(ii), (B) (permitting evidentiary hearings in

federal court if “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 applicant guilty of the underlying

offense”).

But Congress did not simply incorporate the miscarriage

of justice exception into §§2244(b)(2)(B) and 2254(e)(2).

Rather, Congress constrained the application of the excep-

tion. Prior to AEDPA’s enactment, a court could grant

relief on a second-or-successive petition, then known as

an “abusive” petition, if the petitioner could show that “a

fundamental miscarriage of justice would result from a

failure to entertain the claim.” McCleskey, 499 U. S., at

495. Section 2244(b)(2)(B) limits the exception to cases in

which “the factual predicate for the claim could not have

been discovered previously through the exercise of due

diligence,” and the petitioner can establish that no rea-

sonable factfinder “would have found [her] guilty of the

underlying offense” by “clear and convincing evidence.”

Congress thus required second-or-successive habeas peti-

tioners attempting to benefit from the miscarriage of

justice exception to meet a higher level of proof (“clear and

convincing evidence”) and to satisfy a diligence require-

12 MCQUIGGIN v. PERKINS

Opinion of the Court

ment that did not exist prior to AEDPA’s passage.

Likewise, petitioners asserting actual innocence pre-

AEDPA could obtain evidentiary hearings in federal court

even if they failed to develop facts in state court. See

Keeney, 504 U. S., at 12 (“A habeas petitioner’s failure to

develop a claim in state-court proceedings will be excused

and a hearing mandated if he can show that a fundamen-

tal miscarriage of justice would result from failure to hold

a federal evidentiary hearing.”). Under AEDPA, a peti-

tioner seeking an evidentiary hearing must show diligence

and, in addition, establish her actual innocence by clear

and convincing evidence. §§2254(e)(2)(A)(ii), (B).

Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Con-

gress’ will to modify the miscarriage of justice exception

with respect to second-or-successive petitions and the hold-

ing of evidentiary hearings in federal court. These pro-

visions do not demonstrate Congress’ intent to preclude

courts from applying the exception, unmodified, to “the

type of petition at issue here”—an untimely first federal

habeas petition alleging a gateway actual-innocence claim.

House, 547 U. S., at 539.1 The more rational inference to

draw from Congress’ incorporation of a modified version of

the miscarriage of justice exception in §§2244(b)(2)(B) and

——————

1 In House, we rejected the analogous argument that AEDPA re-

placed the standard for actual-innocence gateway claims prescribed in

Schlup v. Delo, 513 U. S. 298, 327 (1995) (petitioner “must show that it

is more likely than not that no reasonable juror would have convicted

him in the light of the new evidence”), with a “clear and convincing”

evidence requirement. 547 U. S., at 539 (internal quotation marks

omitted). As here, the State relied on §§2244(b)(2)(B)(ii) and 2254(e)(2)

to support its argument. But “[n]either provision address[ed] the type

of petition at issue . . . [,] a first federal habeas petition seeking consid-

eration of defaulted claims based on a showing of actual innocence.”

Ibid. Consequently, we held inapplicable to first petitions the stricter

standard AEDPA prescribed for second-or-successive petitions. Ibid.

Cite as: 569 U. S. ____ (2013) 13

Opinion of the Court

2254(e)(2) is simply this: In a case not governed by those

provisions, i.e., a first petition for federal habeas relief, the

miscarriage of justice exception survived AEDPA’s pas-

sage intact and unrestricted.2

Our reading of the statute is supported by the Court’s

opinion in Holland. “[E]quitable principles have tradi-

tionally governed the substantive law of habeas corpus,”

Holland reminded, and affirmed that “we will not construe

a statute to displace courts’ traditional equitable authority

absent the clearest command.” 560 U. S., at ___ (slip

op., at 13) (internal quotation marks omitted). The text

of §2244(d)(1) contains no clear command countering the

courts’ equitable authority to invoke the miscarriage of

justice exception to overcome expiration of the statute of

limitations governing a first federal habeas petition. As

we observed in Holland,

“AEDPA seeks to eliminate delays in the federal ha-

beas review process. But AEDPA seeks to do so with-

out undermining basic habeas corpus principles and

while seeking to harmonize the new statute with prior

law . . . . When Congress codified new rules governing

this previously judicially managed area of law, it did

so without losing sight of the fact that the writ of ha-

beas corpus plays a vital role in protecting constitu-

tional rights.” Id., at ___ (slip op., at 16) (citations

——————

2 Prior to AEDPA, it is true, this Court had not ruled that a credible

claim of actual innocence could supersede a federal statute of limita-

tions. The reason why that is so is evident: Pre-AEDPA, petitions for

federal habeas relief were not governed by any statute of limitations.

Notably, we said in Coleman v. Thompson, 501 U. S. 722 (1991), that a

petitioner who failed to comply with a timeliness requirement in state

court could nevertheless plead her claims on the merits in federal court

if she could show that “failure to consider the claims [would] result in a

fundamental miscarriage of justice.” Id., at 750.

14 MCQUIGGIN v. PERKINS

Opinion of the Court

and internal quotation marks omitted).3

III

Having rejected the State’s argument that §2244(d)

(1)(D) precludes a court from entertaining an un-

timely first federal habeas petition raising a convincing

claim of actual innocence, we turn to the State’s further

objection to the Sixth Circuit’s opinion. Even if a habeas

petitioner asserting a credible claim of actual innocence

may overcome AEDPA’s statute of limitations, the State

argues, the Court of Appeals erred in finding that no

threshold diligence requirement at all applies to Perkins’

petition.

While formally distinct from its argument that

§2244(d)(1)(D)’s text forecloses a late-filed claim alleging

actual innocence, the State’s contention makes scant

sense. Section 2244(d)(1)(D) requires a habeas petitioner

to file a claim within one year of the time in which new

evidence “could have been discovered through the exercise

of due diligence.” It would be bizarre to hold that a habeas

——————

3 For eight pages, the dissent stridently insists that federal (although

not state) statutes of limitations allow no exceptions not contained in

the text. Well, not quite so, the dissent ultimately acknowledges. Post,

at 8. Even AEDPA’s statute of limitations, the dissent admits, is

subject to equitable tolling. But that is because equitable tolling “can

be seen as a reasonable assumption of genuine legislative intent.” Post,

at 9. Why is it not an equally reasonable assumption that Congress

would want a limitations period to yield when what is at stake is a

State’s incarceration of an individual for a crime, it has become clear,

no reasonable person would find he committed? For all its bluster,

the dissent agrees with the Court on a crucial point: Congress legis-

lates against the backdrop of existing law. Post, at 10. At the time

of AEDPA’s enactment, multiple decisions of this Court applied the

miscarriage of justice exception to overcome various threshold barriers

to relief. See supra, at 7–9. It is hardly “unprecedented,” therefore, to

conclude that “Congress intended or could have anticipated [a miscar-

riage of justice] exception” when it enacted AEDPA. Post, at 10–11.

Cite as: 569 U. S. ____ (2013) 15

Opinion of the Court

petitioner who asserts a convincing claim of actual inno-

cence may overcome the statutory time bar §2244(d)(1)(D)

erects, yet simultaneously encounter a court-fashioned

diligence barrier to pursuit of her petition. See 670 F. 3d,

at 673 (“Requiring reasonable diligence effectively makes

the concept of the actual innocence gateway redundant,

since petitioners . . . seek [an equitable exception only]

when they were not reasonably diligent in complying with

§2244(d)(1)(D).”).

While we reject the State’s argument that habeas peti-

tioners who assert convincing actual-innocence claims

must prove diligence to cross a federal court’s threshold,

we hold that the Sixth Circuit erred to the extent that

it eliminated timing as a factor relevant in evaluating the

reliability of a petitioner’s proof of innocence. To invoke

the miscarriage of justice exception to AEDPA’s statute of

limitations, we repeat, a petitioner “must show that it is

more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.” Schlup,

513 U. S., at 327. Unexplained delay in presenting new

evidence bears on the determination whether the petitioner

has made the requisite showing. Perkins so acknowl-

edges. See Brief for Respondent 52 (unjustified delay may

figure in determining “whether a petitioner has made a

sufficient showing of innocence”). As we stated in Schlup,

“[a] court may consider how the timing of the submission

and the likely credibility of [a petitioner’s] affiants bear on

the probable reliability of . . . evidence [of actual inno-

cence].” 513 U. S., at 332. See also House, 547 U. S., at

537.

Considering a petitioner’s diligence, not discretely, but

as part of the assessment whether actual innocence has

been convincingly shown, attends to the State’s concern

that it will be prejudiced by a prisoner’s untoward delay in

proffering new evidence. The State fears that a prisoner

might “lie in wait and use stale evidence to collaterally

16 MCQUIGGIN v. PERKINS

Opinion of the Court

attack his conviction . . . when an elderly witness has died

and cannot appear at a hearing to rebut new evidence.”

Brief for Petitioner 25. The timing of such a petition,

however, should seriously undermine the credibility of the

actual-innocence claim. Moreover, the deceased witness’

prior testimony, which would have been subject to cross-

examination, could be introduced in the event of a new

trial. See Crawford v. Washington, 541 U. S. 36, 53–54

(2004) (recognizing exception to the Confrontation Clause

where witness is unavailable and the defendant had a

prior opportunity for cross-examination). And frivolous

petitions should occasion instant dismissal. See 28

U. S. C. §2254 Rule 4. Focusing on the merits of a peti-

tioner’s actual-innocence claim and taking account of

delay in that context, rather than treating timeliness as a

threshold inquiry, is tuned to the rationale underlying the

miscarriage of justice exception—i.e., ensuring “that fed-

eral constitutional errors do not result in the incarceration

of innocent persons.” Herrera, 506 U. S., at 404.4

IV

We now return to the case at hand. The District Court

proceeded properly in first determining that Perkins’

claim was filed well beyond AEDPA’s limitations period

and that equitable tolling was unavailable to Perkins

because he could demonstrate neither exceptional circum-

stances nor diligence. See supra, at 5. The District Court

then found that Perkins’ alleged newly discovered evi-

dence, i.e., the information contained in the three affida-

vits, was “substantially available to [Perkins] at trial.”

——————

4 We note one caveat: A showing that delay was part of a deliberate

attempt to manipulate the case, say by waiting until a key prosecution

witness died or was deported, might raise a different ground for with-

holding equitable relief. No such contention was presented here,

however, so we do not discuss the point.

Cite as: 569 U. S. ____ (2013) 17

Opinion of the Court

App. to Pet. for Cert. 31a. Moreover, the proffered evi-

dence, even if “new,” was hardly adequate to show that,

had it been presented at trial, no reasonable juror would

have convicted Perkins. Id., at 30a–31a.

The Sixth Circuit granted a certificate of appealability

limited to the question whether reasonable diligence is a

precondition to reliance on actual innocence as a gateway

to adjudication of a federal habeas petition on the merits.

We have explained that untimeliness, although not an

unyielding ground for dismissal of a petition, does bear on

the credibility of evidence proffered to show actual inno-

cence. On remand, the District Court’s appraisal of

Perkins’ petition as insufficient to meet Schlup’s actual-

innocence standard should be dispositive, absent cause,

which we do not currently see, for the Sixth Circuit to

upset that evaluation. We stress once again that the

Schlup standard is demanding. The gateway should open

only when a petition presents “evidence of innocence so

strong that a court cannot have confidence in the outcome

of the trial unless the court is also satisfied that the trial

was free of nonharmless constitutional error.” 513 U. S.,

at 316.

* * *

For the reasons stated, the judgment of the Sixth Cir-

cuit is vacated, and the case is remanded for further pro-

ceedings consistent with this opinion.

It is so ordered.

Cite as: 569 U. S. ____ (2013) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–126

_________________

GREG MCQUIGGIN, WARDEN, PETITIONER v. FLOYD

PERKINS

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 fash-

ion what it concedes is an “exception” to this clear statu-

tory command?

That question is unanswered because there is no an-

swer. This Court has no such power, and not one of the

cases cited by the opinion says otherwise. The Constitu-

tion vests legislative power only in Congress, which never

enacted the exception the Court creates today. That in-

convenient truth resolves this case.

I

A

“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

2 MCQUIGGIN v. PERKINS

SCALIA, J., dissenting

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 convic-

tion and not merely jurisdiction of the convicting court, see

Stone v. Powell, 428 U. S. 465, 475–478 (1976) (citing

Frank v. Mangum, 237 U. S. 309 (1915)); Brown v. Allen,

344 U. S. 443, 533–534 (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 re-

view 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, 392–393 (2004) (quoting Francis v.

Henderson, 425 U. S. 536, 538–539 (1976)).

And what courts have created, courts can modify. One

judge-made exception to procedural default allows a peti-

tioner 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.”

Cite as: 569 U. S. ____ (2013) 3

SCALIA, J., dissenting

Murray v. Carrier, 477 U. S. 478, 496 (1986); see Schlup v.

Delo, 513 U. S. 298, 326–327 (1995); House v. Bell, 547

U. S. 518, 536–537 (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 writ-

ten law,” Ex parte Bollman, 4 Cranch 75, 94 (1807) (Mar-

shall, 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.

B

Because we have no “equitable” power to discard statu-

tory 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, includ-

ing statutory bars, does all the work in its opinion—and

there is not a whit of precedential support for it. McCles-

key 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. Car-

rier applied it to the judge-made procedural-default doc-

trine. 501 U. S., at 750; 477 U. S., at 496. Keeney v.

4 MCQUIGGIN v. PERKINS

SCALIA, J., dissenting

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, ap-

plied 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 nonstatu-

tory 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 hold-

ing . . . that none of its judge-made rules foreclose peti-

tioner’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

Cite as: 569 U. S. ____ (2013) 5

SCALIA, J., dissenting

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 limita-

tions.” 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.

II

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 con-

struing the statute; indeed, it freely admits that its opin-

ion 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 excep-

tion 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 evi-

dence that supports his constitutional claim. Section

2244(d)(1)(D) gives him a fresh year in which to file, start-

ing 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

6 MCQUIGGIN v. PERKINS

SCALIA, J., dissenting

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 crafts-

manship 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 inter-

pret 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 limita-

tions 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.

——————

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

Cite as: 569 U. S. ____ (2013) 7

SCALIA, J., dissenting

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 estab-

lish by clear and convincing evidence that but for constitu-

tional 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 codi-

fied 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

——————

effect to state statutes of limitations.

8 MCQUIGGIN v. PERKINS

SCALIA, J., dissenting

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 excep-

tion 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.

III

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

Cite as: 569 U. S. ____ (2013) 9

SCALIA, J., dissenting

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 cen-

turies 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, 396–397 (1946); Exploration Co.

v. United States, 247 U. S. 435, 446–447 (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 Profes-

sor 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 constitu-

tional context, it is not surprising to find a similarly indis-

tinct line between appropriate legislative and judicial

functions in matters of interpretation.” Manning, Textual-

ism 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

10 MCQUIGGIN v. PERKINS

SCALIA, J., dissenting

assumption of genuine legislative intent. Colonial legisla-

tures 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, 49–50 (2002) (internal quota-

tion 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 back-

ground” 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

——————

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

Cite as: 569 U. S. ____ (2013) 11

SCALIA, J., dissenting

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 re-

pair.” 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., dissent-

ing). 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 crim-

inal 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 condem-

nation 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

——————

with this question.

12 MCQUIGGIN v. PERKINS

SCALIA, J., dissenting

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 de-

serving from the multitude of prisoners pressing false

claims. “[F]loods of stale, frivolous and repetitious peti-

tions 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 deci-

sion piles yet more dead weight onto a postconviction

habeas system already creaking at its rusted joints.

I respectfully dissent.