Schlup v. Delo

Justice O’Connor,

concurring.

I write to explain, in light of the dissenting opinions, what I understand the Court to decide and what it does not.

The Court holds that, in order to have an abusive or successive habeas claim heard on the merits, a petitioner who cannot demonstrate cause and prejudice “must show that it is more likely than not that no reasonable juror would have convicted him” in light of newly discovered evidence of innocence. Ante, at 327. This standard is *333 higher than that required for prejudice, which requires only “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt,” Strickland v. Washington, 466 U. S. 668, 695 (1984). Instead, a petitioner does not pass through the gateway erected by Murray v. Carrier, 477 U. S. 478 (1986), if the district court believes it more likely than not that there is any juror who, acting reasonably, would have found the petitioner guilty beyond a reasonable doubt. And the Court’s standard, which focuses the inquiry on the likely behavior of jurors, is substantively different from the rationality standard of Jackson v. Virginia, 443 U. S. 307 (1979). Jackson , which emphasizes the authority of the fact-finder to make conclusions from the evidence, establishes a standard of review for the sufficiency of record evidence — a standard that would be ill suited as a burden of proof, see Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 624-626 (1993). The Court today does not sow confusion in the law. Rather, it properly balances the dictates of justice with the need to ensure that the actual innocence exception remains only a “ ‘safety valve’ for the ‘extraordinary case,’ ” Harris v. Reed, 489 U. S. 255, 271 (1989) (O’Connor, J., concurring).

Moreover, the Court does not, and need not, decide whether the fundamental miscarriage of justice exception is a discretionary remedy. It is a paradigmatic abuse of discretion for a court to base its judgment on an erroneous view of the law. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405 (1990). Having decided that the district court committed legal error, and thus abused Its discretion, by relying on Sawyer v. Whitley, 505 U. S. 333 (1992), instead of Murray v. Carrier, supra, the Court need not decide the question — neither argued by the parties nor passed upon by the Court of Appeals — whether abuse of discretion is the proper standard of review. In reversing the judgment of the Court *334 of Appeals, therefore, the Court does not disturb the traditional discretion of district courts in this area, nor does it speak to the standard of appellate review for such judgments.

With these observations, I join the Court’s opinion.

Chief Justice Rehnquist,

with whom Justice Kennedy and Justice Thomas join,

dissenting.

The Court decides that the threshold standard for a showing of “actual innocence” in a successive or abusive habeas petition is that set forth in Murray v. Carrier, 477 U. S. 478 (1986), rather than that set forth in Sawyer v. Whitley, 505 U. S. 333 (1992). For reasons which I later set out, I believe the Sawyer standard should be applied to claims of guilt or innocence as well as to challenges to a petitioner’s sentence. But, more importantly, I believe the Court’s exegesis of the Carrier standard both waters down the standard suggested in that case, and will inevitably create confusion in the lower courts.

On February 3, 1984, three white inmates attacked and killed a black inmate named Arthur Dade. At trial, testimony by Sergeant Roger Flowers and Officer John Maylee indicated that inmate Rodnie Stewart threw a container of steaming liquid into Dade’s face, petitioner jumped on Dade’s back rendering him defenseless, and inmate Robert O’Neal proceeded to stab Dade to death. Petitioner’s trial counsel attempted to discredit both eyewitness identifications. As to Sergeant Flowers, counsel argued that Flowers had brought a visitor into petitioner’s cell less than an hour before the stabbing, and, therefore, Flowers had Schlup “on the brain.” Trial Tr. 493-494. Trial counsel attempted to discredit Officer Maylee’s identification by arguing that Maylee was too far from the scene to properly view the incident. Through discovery, petitioner’s trial counsel uncovered a videotape in which petitioner is the first inmate to enter the cafeteria. One minute and five seconds after petitioner *335 enters the cafeteria, a group of guards run out in apparent response to a distress call. Twenty-six seconds later, O’Neal is seen entering the cafeteria. Petitioner’s trial counsel argued that the videotape established that petitioner could not have committed the murder because there was insufficient time for him to commit the crime and arrive at the cafeteria one minute and five seconds prior to the distress call. Petitioner’s trial counsel also presented two alibi witnesses who testified that petitioner had walked in front of them to the cafeteria without incident.

The jury considered this conflicting evidence, determined that petitioner’s story was not credible, and convicted him of capital murder. During the sentencing component of trial, the prosecution presented evidence that there were two statutory aggravating factors that warranted imposition of the death penalty: petitioner committed the murder in a place of lawful confinement, and petitioner had a substantial history of serious assaultive criminal convictions. As to the second aggravating factor, the prosecution presented testimony that for two weeks, petitioner had brutally beaten, tortured, and sodomized a cellmate in a county jail. The prosecution also presented testimony that petitioner was convicted of aggravated assault for slitting a cellmate’s throat. On cross-examination, petitioner presented his version of the prior incidents. The jury considered this evidence, rejected petitioner’s story, and returned a sentence of death.

On appeal, the Missouri Supreme Court affirmed petitioner’s conviction and death sentence. Petitioner then filed state collateral proceedings claiming, among other things, that his trial counsel was ineffective for failing to present additional alibi witnesses and for failing to investigate fully the circumstances of the murder. The Missouri Circuit Court determined that petitioner’s counsel provided effective assistance of counsel.' The Missouri Supreme Court affirmed the denial of postconviction relief.

*336 Petitioner then filed his first federal habeas petition claiming that his trial counsel was ineffective at both the guilt and penalty phases of trial. Though he previously refused to identify Randy Jordan as the alleged third participant in the murder, petitioner faulted his trial counsel for failing to call Randy Jordan as a witness. 1 The District Court denied relief. A panel of the Court of Appeals for the Eighth Circuit concluded on the merits that petitioner’s trial counsel had not been ineffective at the guilt or penalty phases of trial. 2 Petitioner sought review of the panel’s decision by the en banc court. No Eighth Circuit judge questioned the panel’s conclusion that petitioner’s trial counsel provided effective assistance of counsel during the guilt phase of trial.

Petitioner filed a second federal habeas petition, again claiming that his trial counsel was ineffective at both the guilt and penalty phases of trial. Petitioner supplemented this filing with an affidavit from a former inmate, John Green. Green’s affidavit related to the timing of the distress call. In his most recent statement, Green swore that Sergeant Flowers “was on his way to break up the fight when he told me to call base. I immediately went into the office, picked up the phone, and called base.” App. 122. 3 Under *337 this timing sequence, petitioner submitted that he “ha[d] produced proof, which could not have been fabricated, that the call to which the guards [in the cafeteria] responded came seconds after the stabbing.” Id., at 100-101. Further, petitioner claimed that “Green’s testimony thus makes it impossible, under any view of the evidence, for Schlup to have participated in Dade’s murder: for thirty seconds to a minute before the distress call, the videotape plainly shows Lloyd Schlup in the prison dining room, quietly getting his lunch.” Brief for Petitioner 12. Thus, petitioner’s claim of “actual innocence” depends, in part, on the assumption that the officers in the cafeteria responded to Green’s distress call “within seconds” of Dade hitting the ground. 4

The District Court denied petitioner’s second habeas petition without conducting an evidentiary hearing. While on appeal, petitioner supplemented his habeas petition with an additional affidavit from Robert Faherty, a former prison guard who previously testified at petitioner’s trial. A divided panel of the Eighth Circuit applied the Sawyer standard to petitioner’s gateway claim of “actual innocence” and determined that petitioner failed to meet that standard. The Eighth Circuit denied rehearing en banc. We granted certiorari to determine when, absent a showing of cause *338 and prejudice, a district court may consider the merits of an abusive or successive habeas petition. 511 U. S. 1003 (1994).

In Kuhlmann v. Wilson, 477 U. S. 436 (1986), the Court examined when a federal court could entertain a successive habeas petition. A plurality of the Court determined that the “ ‘ends of justice’ ” required a district court to entertain the merits of an otherwise defaulted petition where the prisoner supplemented his constitutional claim with a showing of factual innocence. Id., at 454 . After citing Judge Friendly’s definition of factual innocence, the plurality summarily determined that the District Court should not have entertained Wilson’s petition because the evidence of guilt in his case had been “ ‘nearly overwhelming.’ ” Id., at 455 .

In Carrier , the Court determined that a federal court could not review a procedurally defaulted habeas petition unless the petitioner demonstrated both cause for the default as well as prejudice resulting from the constitutional error. 477 U. S., at 492. 5 The Carrier Court, however, left open the possibility that in a truly extraordinary case, a federal habeas court might excuse a failure to establish cause and prejudice where “ ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’” Ante, at 327, quoting 477 U. S., at 496 (emphasis added).

In Sawyer , we described in some detail the showing of actual innocence required when a habeas petitioner brings an otherwise abusive, successive, or procedurally defaulted claim challenging the imposition of his death sentence, rather than his guilt of the crime. 505 U. S., at 339-347 . There the Court emphasized that innocence of the death penalty, *339 like its “ ‘actual innocence’ ” counterpart, is “a very narrow exception,” and that in order to be “workable it must be subject to determination by relatively objective standards.” Id., at 341 . Thus, we concluded that a habeas petitioner who challenged his sentence in an otherwise defaulted petition must show “by clear and convincing evidence that but for constitutional error, no reasonable juror would [have found the petitioner] eligible for the death penalty.” Id., at 348 .

We have never until today had to similarly flesh out the standard of “actual innocence” in the context of a habeas petitioner claiming innocence of the crime. Thus, I agree that the question of what threshold standard should govern is an open one. As I have said earlier, I disagree with the Court’s conclusion that Carrier , and not Sawyer , provides the proper standard. But far more troubling than the choice of Carrier over Sawyer is the watered down and confusing version of Carrier which is served up by the Court.

As the Court notes, to satisfy Carrier a habeas petitioner must demonstrate that “ ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’” Ante, at 327 (quoting Carrier, supra, at 496 ). The Court informs us that a showing of “actual innocence” requires a habeas petitioner to “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Ante, at 327. But this is a classic mixing of apples and oranges. “More likely than not” is a quintessential charge to a finder of fact, while “no reasonable juror would have convicted him in the light of the new evidence” is an equally quintessential conclusion of law similar to the standard that courts constantly employ in deciding motions for judgment of acquittal in criminal cases. The hybrid which the Court serves up is bound to be a source of confusion. Because new evidence not presented at trial will almost always be involved in these claims of actual innocence, the legal standard for judgment of acquittal cannot *340 be bodily transposed for the determination of “actual innocence,” but the sensible course would be to modify that familiar standard, see infra, at 341-342, rather than to create a confusing hybrid.

In the course of elaborating the Carrier standard, the Court takes pains to point out that it differs from the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (1979), for review of the sufficiency of the evidence to meet the constitutional standard of proof beyond a reasonable doubt. Under Jackson , “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319 . This standard requires a solely retrospective analysis of the evidence considered by the jury and reflects a healthy respect for the trier of fact’s “responsibility ... to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Ibid.

The Court fails to acknowledge expressly the similarities between the standard it has adopted and the Jackson standard. A habeas court reviewing a claim of actual innocence does not write on a clean slate. Cf. Barefoot v. Estelle, 463 U. S. 880, 887 (1983) (“Federal courts are not forums in which to relitigate state trials”); Herrera v. Collins, 506 U. S. 390, 416 (1993) (“[I]n state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant”); Wainwright v. Sykes, 433 U. S. 72, 90 (1977) (“Society’s resources have been concentrated at [the state trial] in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens”). Therefore, as the Court acknowledges, a petitioner making a claim of actual innocence under Carrier falls short of satisfying his burden if the reviewing court determines that any juror reasonably would have found petitioner guilty of the crime. See ante, at 329; cf. Jackson, supra, at 318-319 .

*341 The situation presented by a claim of actual innocence in a federal habeas petition is obviously different from that presented in Jackson because the habeas court analyzing an “actual innocence” claim is faced with a body of evidence that has been supplemented since the original trial. The reviewing court must somehow predict the effect that this new evidence would have had on the deliberations of reasonable jurors. It must necessarily weigh this new evidence in some manner, and may need to make credibility determinations as to witnesses who did not appear before the original jury. This new evidence, however, is not a license for the reviewing court to disregard the presumptively proper determination by the original trier of fact.

I think the standard enunciated in Jackson , properly modified because of the different body of evidence that must be considered, faithfully reflects the language used in Carrier . The habeas judge should initially consider the motion on the basis of the written submissions made by the parties. As the Court suggests, habeas courts will be able to resolve the great majority of “actual innocence” claims routinely without any evidentiary hearing. See ante, at 324. This fact is important because, as we noted in Sawyer : “In the every day context of capital penalty proceedings, a federal district judge typically will be presented with a successive or abusive habeas petition a few days before, or even on the day of, a scheduled execution, and will have only a limited time to determine whether a petitioner has shown that his case falls within the ‘actual innocence’ exception if such a claim is made.” 505 U. S., at 341 (footnote omitted).

But in the highly unusual case where the district court believes on the basis of written submissions that the necessary showing of “actual innocence” may be made out, it should conduct a limited evidentiary hearing at which the affiants whose testimony the court believes to be crucial to the showing of actual innocence are present and may be cross-examined as to veracity, reliability, and all of the other *342 elements that affect the weight to be given the testimony of a witness. After such a hearing, the district court would be in as good a position as possible to make the required determination as to the showing of actual innocence.

The present state of our habeas jurisprudence is less than ideal in its complexity, but today’s decision needlessly adds to that complexity. I believe that by adopting the Sawyer standard both for attacks on the sentence and on the judgment of conviction, we would take a step in the direction of simplifying this jurisprudence. See Keeney v. Tamayo-Reyes, 504 U. S. 1, 10 (1992) (noting the importance of uniformity in the law of habeas corpus). The Sawyer standard strikes the proper balance among the State’s interest in finality, McCleskey v. Zant, 499 U. S. 467, 491-492 (1991), the federal courts’ respect for principles of federalism, see, e. g., Teague v. Lane, 489 U. S. 288, 309 (1989) (plurality opinion), and “the ultimate equity on the prisoner’s side — a sufficient showing of actual innocence,” Withrow v. Williams, 507 U. S. 680, 700 (1993) (O’Connor, J., concurring in part and dissenting in part). The Court of Appeals fully analyzed petition-' er’s new evidence and determined that petitioner fell way short of “ ‘showing by clear and convincing evidence [that] no reasonable juror would find him [guilty of murder].’ ” 11 F. 3d 738, 743 (CA8 1993) (quoting Sawyer, supra, at 348 ). I agree and therefore would affirm.

But if we are to adopt the Carrier standard, it should not be the confusing exegesis of that standard contained in the Court’s opinion. It should be based on a modified version of Jackson v. Virginia , with a clearly defined area in which the district court may exercise its discretion to hold an eviden-tiary hearing.

Justice Scalia,

with whom Justice Thomas joins,

dissenting.

A federal statute entitled “Finality of Determination” — to be found at § 2244 of Title 28 of the United States Code— *343 specifically addresses the problem of second and subsequent petitions for the writ of habeas corpus. The reader of today’s opinion will be unencumbered with knowledge of this law, since it is not there discussed or quoted, and indeed is only cited en passant. See ante, at 318, 320. Rather than asking what the statute says, or even what we have said the statute says, the Court asks only what is the fairest standard to apply, and answers that question by looking to the various semiconsistent standards articulated in our most recent decisions — minutely parsing phráses, and seeking shades of meaning in the interstices of sentences and words, as though a discursive judicial opinion were a statute. I would proceed differently. Within the very broad limits set by the Suspension Clause, U. S. Const., Art. I, § 9, cl. 2, the federal writ of habeas corpus is governed by statute. Section 2244 controls this case; the disposition it announces is plain enough, and our decisions contain nothing that would justify departure from that plain meaning.

Section 2244(b) provides:

“When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.”

*344 A long sentence, but not a difficult one. A federal district court that receives a second or subsequent petition for the writ of habeas corpus, when a prior petition has been denied on the merits, “need not. . . entertai[n]” (i e., may dismiss) the petition unless it is neither (to use our shorthand terminology) successive nor abusive. See also Habeas Corpus Rule 9(b) (“A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief . . .”). Today, however, the Court obliquely but unmistakably pronounces that a successive or abusive petition must be entertained and may not be dismissed so long as the petitioner makes a sufficiently persuasive showing that a “fundamental miscarriage of justice” has occurred. Ante, at 316 (“[I]f a petitioner such as Schlup presents [adequate] evidence of innocence . . . the petitioner should be allowed to pass through the gateway and argue the merits”); ante, at 319-321. 1 That conclusion flatly contradicts the statute, and is not required by our precedent.

Our earliest cases, from an era before Congress legislated rules to govern the finality of habeas adjudication, held that successive or abusive petitions were “to be disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought,” and that when weighing those considerations the district court could give “controlling weight” to “a prior refusal to discharge on a like application.” Salinger v. Loisel, 265 U. S. 224, 231 (1924) (successive peti *345 tion); see also Wong Doo v. United States, 265 U. S. 239, 240-241 (1924) (abusive petition). In Salinger the Court particularly noted: “Here the prior refusal to discharge [the prisoner] was by a court of coordinate jurisdiction and was affirmed in a considered opinion by a Circuit Court of Appeals. Had the District Court disposed of the later applications on that ground, its discretion would have been well exercised and we should sustain its action without saying more.” 265 U. S., at 232. Section 2244 is no more and no less than a codification of this approach. It is one of the disheartening ironies of today’s decision that the Court not merely disregards a statute, but in doing so denies district judges the very discretion that the Court itself freely entrusted to them before Congress spoke.

In 1948 Congress for the first time addressed the problem of repetitive petitions by enacting the predecessor of the current § 2244, which provided as follows:

“No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States, or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.” 28 U. S. C. §2244 (1964 ed.) (emphasis added).

This provision was construed in Sanders v. United States, 373 U. S. 1 (1963), and (with unimpeachable logic) was held to mean that “[c]ontrolling weight may be given to denial of a prior application for federal habeas corpus [under 28 U. S. C. §2254 ] only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on *346 the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.” Id., at 15 . Thus, there appeared for the first time in our decisions the notion that a habeas court has “the duty” to reach the merits of a subsequent petition “if the ends of justice demand,” id., at 18-19 — and it appeared for the perfectly good reason that the statute, as then written, imposed such a duty. And even as to that duty the Sanders Court added a “final qualification” that the Court today would do well to remember:

“The principles governing . . . denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.” Id., at 18 .

Three years after Sanders , however, Congress amended §2244 to establish different finality rules for federal prisoner petitions (filed under §2255) and state prisoner petitions (filed under §2254). Section 2244(a), which addresses petitions by federal prisoners, retains the “ends of justice” proviso from the old statute; but § 2244(b) omits it, thus restricting the district courts’ obligation to entertain petitions by state prisoners to cases where the petition is neither successive nor abusive. One might have expected that this not-so-subtle change in the statute would change our interpretation of it, and that we would modify Sanders by holding that a district court could exercise its discretion to give controlling weight to the prior denial — which was of course precisely what Salinger envisioned.

Yet when the new version of § 2244(b) was first construed, in Kuhlmann v. Wilson, 477 U. S. 436 (1986), a plurality of the Court announced that it would “continue to rely on the *347 reference in Sanders to the ‘ends of justice/ ” 477 U. S., at 451, and concluded that “the ‘ends of justice’ require federal courts to entertain [successive] petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” Id., at 454. That conclusion contains two complementary propositions. The first is that a habeas court may not reach the merits of a barred claim unless actual innocence is shown; this was the actual judgment of the opinion (one cannot say the holding, since the opinion was a mere plurality). See id., at 455 (stating that the District Court and Court of Appeals should have dismissed the successive petition because the petitioner’s claim of innocence was meritless). The second is that a habeas court must hear a claim of actual innocence and reach the merits of the petition if the claim is sufficiently persuasive; this was the purest dictum. It is the Court’s prerogative to adopt that dictum today, but to adopt it without analysis, as though it were binding precedent, will not do. The Kuhl-mann plurality opinion lacks formal status as authority, and, as discussed below, no holding of this Court binds us to it. A decision to follow it must be justified by reason, not simply asserted by will.

And if reasons are to be given, justification of the Kuhl-mann opinion will be found difficult indeed. The plurality’s central theory is that “the permissive language of § 2244(b) gives federal courts discretion to entertain successive petitions under some circumstances,” so that “[u]nless [the] ‘rare instances’ [in which successive petitions will be entertained] are to be identified by whim or caprice, district judges must be given guidance for determining when to exercise the limited discretion granted them by § 2244(b).” See 477 U. S., at 451. What the plurality then proceeds to do, however, is not to “guide” the discretion, but to eliminate it entirely, dividing the entire universe of successive and abusive petitions into those that must not be entertained (where there is no showing of innocence) and those that must be entertained (where *348 there is such a showing). This converts a statute redolent of permissiveness (“need not entertain”) into a rigid command. 2

The Kuhlmann plurality’s concern about caprice is met— as it is met for all decisions committed by law to the discretion of lower courts — by applying traditional “abuse-of-discretion” standards. A judge who dismisses a successive petition because he misconceives some question of law, because he detests the petitioner’s religion, or because he would rather play golf, may be reversed. A judge who dismisses a successive petition because it is the petitioner’s twenty-second, rather than his second, because its “only purpose is to vex, harass, or delay,” Sanders, supra, at 18 , or because the constitutional claims can be seen to be frivolous on the face of the papers — for any of the numerous considerations that have “a rational bearing on the propriety of the discharge sought,” Salinger, 265 U. S., at 231 (emphasis added) — may not be commanded to reach the merits because “the ends of justice” require. Here as elsewhere in the law, to say that a district judge may not abuse his discretion is merely to say that the action in question (dismissing a successive petition) may not be done without considering relevant factors and giving a “justifying reason,” Foman v. Davis, 371 U. S. 178, 182 (1962). See also American Dredging Co. v. Miller, 510 U. S. 443, 455 (1994). It is a failure of logic, and an arrogation of authority, to “guide” that discretion by holding that what Congress authorized the district court to do may not be done at all.

The Court’s assumption that the requirement imposed by the Kuhlmann plurality should be taken as law can find no support in our subsequent decisions. To be sure, some cases restate the supposed duty in the course of historical surveys of the area. See, e. g., McCleskey v. Zant, 499 U. S. *349 467, 495 (1991) (“Kuhlmann . . . required federal courts to entertain successive petitions when a petitioner supplements a constitutional claim with a ‘colorable showing of factual innocence’ ”). But if we are to lavish upon the verbiage of our opinions the detailed attention more appropriately reserved for the statute itself, more of the cases (and some of the same cases) have described the miscarriage-of-justice doctrine as a rule of permission rather than a rule of obligation. See, e. g., Sawyer v. Whitley, 505 U. S. 333, 339 (1992) (“[Kuhlmann held that] the miscarriage of justice exception would allow successive claims to be heard”); McCleskey, 499 U. S., at 494 (“Federal courts retain the authority to issue the writ [in cases of fundamental miscarriage of justice]”); id., at 494-495 (“If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim”); Murray v. Carrier, 477 U. S. 478, 496 (1986) (“[W]here 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”) (emphasis added in all quotations).

Of course the latter cases provide as much or as little authority for the right reading of the statute as the former provide for the wrong reading. The truth is that there is simply nothing in this scattering of phrases, this handful of silences and assumptions, by which even the conscience most scrupulous in matters of stare decisis could count itself bound either way; for in no case after Kuhlmann has the question whether § 2244(b) creates an obligation to entertain successive or abusive petitions been necessary to the decision. In both Sawyer and McCleskey the Court affirmed the judgments of lower courts that had dismissed the petition. See Sawyer, supra, at 338 ; McCleskey, supra, at 503 . Those decisions could not, and did not, announce as a *350 holding that refusal to entertain a petition can be reversible error.

Rather than advancing a different reading of the statute, the Court gives in essence only one response to all of this: that the law of federal habeas corpus is a product of “the interplay between statutory language and judicially managed equitable considerations.” Ante, at 319, n. 35. This sort of vague talk might mean one of two things, the first inadequate, the second unconstitutional. It might mean that the habeas corpus statute is riddled with gaps and ambiguities that we have traditionally filled or clarified by a process of statutory interpretation that shades easily into a sort of federal common law. See, e. g., Brecht v. Abrahamson, 507 U. S. 619, 633 (1993). That is true enough. There assuredly are, however, many legal questions on which the habeas corpus statute is neither silent nor ambiguous; and unless the question in this case is one on which the statute is silent or ambiguous (in which event the Court should explain why that is so), the response is irrelevant. On the other hand, the Court’s response might mean something altogether different and more alarming: that even where the habeas statute does speak clearly to the question at hand, it is but one “consideratio[n],” ante, at 319, n. 35, relevant to resolution of that question. Given that federal courts have no inherent power to issue the writ, Ex parte Bollman, 4 Cranch 75, 94-95 (1807), that response would be unconstitutional. See U. S. Const., Art. VI, cl. 2.

There is thus no route of escape from the Court’s duty to confront the statute today. I would say, as the statute does, that habeas courts need not entertain successive or abusive petitions. The courts whose decisions we review declined to entertain the petition, and I find no abuse of discretion in the record. (I agree with The Chief Justice that they were correct to use Sawyer v. Whitley, supra, as the legal standard for determining claims of actual innocence. See *351 ante, at 334.) 3 Therefore, “we should sustain [their] action without saying more.” Salinger, 265 U. S., at 232 .

For these reasons, I respectfully dissent.

The Missouri Circuit Court found that “[d]efense counsel did not interview Randy Jordan, whom Petitioner now alleges was the third participant in the murder with which the Petitioner was charged, because the Petitioner while maintaining someone else committed the acts attributed to him, refused to give the name of that person to his counsel.” Schlup v. Delo, Respondent’s Exhibit J, pp. 49-50.

Senior Circuit Judge Heaney took issue only with the majority’s conclusion that petitioner’s trial counsel had rendered effective assistance at the penalty phase of trial. Cf. Schlup v. Armontrout, 941 F. 2d 631, 642 (1991) (“I disagree with the court’s conclusion that Schlup was not prejudiced by his counsel’s ineffectiveness during the penalty phase”) (dissenting opinion).

On the day of the incident Green told prison investigators that he had not observed the murder. At Stewart’s trial, while under oath, Green testified that he saw no actual fight take place and made no mention of his call to base. App. 140. Green now also swears that he “called base .. . within seconds of Dade hitting the ground.” Id., at 123.

One problem with this theory is that O’Neal, an undisputed participant in the murder, entered the cafeteria 26 seconds after the guards responded to the distress call. As respondent explained at oral argument: “[I]f you believe that [Green] radioed in immediately upon the time of the body falling . . . then you look at the videotape, and there is only 26 seconds between the time that that call was supposedly made by Green and the time that O’Neal comes into the cafeteria downstairs, and all of the evidence in this case shows it’s impossible for O’Neal, the admitted murderer . . . to have run down, . . . broken a window, thrown the knife out the window, come back, washed his hands ... and go[ne] down to the cafeteria, if you hold Green’s present statement as controlling, the murder never occurred.” Tr. of Oral Arg. 30-31 (emphasis added). Thus, as the Court acknowledges, ante, at 308, n. 17, there was a delay between the time of the murder and the time that the guards in the cafeteria responded to the distress call.

The Court explicitly rejected the contention that “cause need not be shown if actual prejudice is shown,” even where the constitutional claims “callfed] into question the reliability of an adjudication of legal guilt." 477 U. S., at 495 (emphasis added); see also Engle v. Isaac, 456 U. S. 107, 129 (1982).

The claim that “the Court does not, and need not, decide whether the fundamental miscarriage of justice exception is a discretionary remedy,” ante, at 333 (O’Connor, J., concurring), is not in my view an accurate description of what the Court’s opinion says. Of course the concurrence’s merely making the claim causes it to be an accurate description of what the Court today holds, since the narrower ground taken by one of the Justices comprising a five-Justice majority becomes the law. Marks v. United States, 430 U. S. 188, 193 (1977).

The present case does not, of course, present the question whether the Kuhlmann plurality was wrong to identify a category of petitions that must not be entertained — a disposition that is at least compatible with the text of § 2244(b).

Even if they were wrong in that, it would not be correct to conclude that the judgment must necessarily be reversed. See ante, at 333-334 (O’Connor, J., concurring). Our habeas cases have not so held. See Wong Doo v. United States, 265 U. S. 239, 241 (1924) (affirming even though “the courts below erred in applying the inflexible doctrine of res judicata” to dismiss an abusive petition, because “it does not follow that the judgment should be reversed; for it plainly appears that the situation was one where, according to a sound judicial discretion, controlling weight must have been given to the prior refusal”).