                  Cite as: 557 U. S. ____ (2009)            1

                      SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
             IN RE TROY ANTHONY DAVIS
         ON PETITION FOR WRIT OF HABEAS CORPUS
             No. 08–1443. Decided August 17, 2009

   JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
   Today this Court takes the extraordinary step—one not
taken in nearly 50 years—of instructing a district court to
adjudicate a state prisoner’s petition for an original writ of
habeas corpus. The Court proceeds down this path even
though every judicial and executive body that has exam
ined petitioner’s stale claim of innocence has been unper
suaded, and (to make matters worst) even though it would
be impossible for the District Court to grant any relief.
Far from demonstrating, as this Court’s Rule 20.4(a)
requires, “exceptional circumstances” that “warrant the
exercise of the Court’s discretionary powers,” petitioner’s
claim is a sure loser. Transferring his petition to the
District Court is a confusing exercise that can serve no
purpose except to delay the State’s execution of its lawful
criminal judgment. I respectfully dissent.
   Eighteen years ago, after a trial untainted by constitu
tional defect, a unanimous jury found petitioner Troy
Anthony Davis guilty of the murder of Mark Allen
MacPhail. The evidence showed that MacPhail, an off
duty police officer, was shot multiple times after respond
ing to the beating of a homeless man in a restaurant
parking lot. Davis v. State, 263 Ga. 5, 5–6, 426 S. E. 2d
844, 845–846, cert. denied, 510 U. S. 950 (1993). Davis
admits that he was present during the beating of the
homeless man, but he maintains that it was one of his
companions who shot Officer MacPhail. It is this claim of
“actual innocence”—the same defense Davis raised at trial
2                       IN RE DAVIS

                     SCALIA, J., dissenting

but now allegedly supported by new corroborating affida
vits—that Davis raises as grounds for relief. And (pre
sumably) it is this claim that the Court wants the District
Court to adjudicate once the petition is transferred.
   Even if the District Court were to be persuaded by
Davis’s affidavits, it would have no power to grant relief.
Federal courts may order the release of convicted state
prisoners only in accordance with the restrictions imposed
by the Antiterrorism and Effective Death Penalty Act of
1996. See Felker v. Turpin, 518 U. S. 651, 662 (1996).
Insofar as it applies to the present case, that statute bars
the issuance of a writ of habeas corpus “with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim . . . resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly estab
lished Federal law, as determined by the Supreme Court
of the United States.” 28 U. S. C. §2254(d)(1).
   The Georgia Supreme Court rejected petitioner’s “ac
tual-innocence” claim on the merits, denying his extraor
dinary motion for a new trial. Davis can obtain relief only
if that determination was contrary to, or an unreasonable
application of, “clearly established Federal law, as deter
mined by the Supreme Court of the United States.” It
most assuredly was not. This Court has never held that
the Constitution forbids the execution of a convicted de
fendant who has had a full and fair trial but is later able
to convince a habeas court that he is “actually” innocent.
Quite to the contrary, we have repeatedly left that ques
tion unresolved, while expressing considerable doubt that
any claim based on alleged “actual innocence” is constitu
tionally cognizable. See Herrera v. Collins, 506 U. S. 390,
400–401, 416–417 (1993); see also House v. Bell, 547 U. S.
518, 555 (2006); District Attorney’s Office for Third Judi
cial Dist. v. Osborne, ante, at 18. A state court cannot
possibly have contravened, or even unreasonably applied,
                 Cite as: 557 U. S. ____ (2009)            3

                     SCALIA, J., dissenting

“clearly established Federal law, as determined by the
Supreme Court of the United States,” by rejecting a type
of claim that the Supreme Court has not once accepted as
valid.
   JUSTICE STEVENS says that we need not be deterred by
the limitations that Congress has placed on federal courts’
authority to issue the writ, because we cannot rule out the
possibility that the District Court might find those limita
tions unconstitutional as applied to actual-innocence
claims. Ante, at 2 (concurring opinion). (This is not a
possibility that Davis has raised, but one that JUSTICE
STEVENS has imagined.) But acknowledging that possibil
ity would make a nullity of §2254(d)(1). There is no sound
basis for distinguishing an actual-innocence claim from
any other claim that is alleged to have produced a wrong
ful conviction. If the District Court here can ignore
§2254(d)(1) on the theory that otherwise Davis’s actual
innocence claim would (unconstitutionally) go unad
dressed, the same possibility would exist for any claim
going beyond “clearly established Federal law.”
   The existence of that possibility is incompatible with the
many cases in which we have reversed lower courts for
their failure to apply §2254(d)(1), with no consideration of
constitutional entitlement. See, e.g., Knowles v. Mir
zayance, 556 U. S. __, __ (2009) (slip op., at 9–10); Wright
v. Van Patten, 552 U. S. 120, __ (2008) (slip op., at 5–6)
(per curiam); Carey v. Musladin, 549 U. S. 70, 76–77
(2006). We have done so because the argument that the
Constitution requires federal-court screening of all state
convictions for constitutional violations is frivolous. For
much of our history, federal habeas review was not avail
able even for those state convictions claimed to be in viola
tion of clearly established federal law. See Stone v. Pow
ell, 428 U. S. 465, 474–476 (1976); Bator, Finality in
Criminal Law and Federal Habeas Corpus for State Pris
oners, 76 Harv. L. Rev. 441, 465–466 (1963); L. Yackle,
4                            IN RE DAVIS

                         SCALIA, J., dissenting

Postconviction Remedies §19 (1981). It seems to me im
proper to grant the extraordinary relief of habeas corpus
on the possibility that we have approved—indeed, di
rected—the disregard of constitutional imperatives in the
past. If we have new-found doubts regarding the constitu
tionality of §2254(d)(1), we should hear Davis’s application
and resolve that question (if necessary) ourselves.*
   Transferring this case to a court that has no power to
grant relief is strange enough. It becomes stranger still
when one realizes that the allegedly new evidence we
shunt off to be examined by the District Court has already
been considered (and rejected) multiple times. Davis’s
postconviction “actual-innocence” claim is not new. Most
of the evidence on which it is based is almost a decade old.
A State Supreme Court, a State Board of Pardons and
Paroles, and a Federal Court of Appeals have all consid
ered the evidence Davis now presents and found it lacking.
(I do not rely upon the similar conclusion of the Georgia
trial court, since unlike the others that court relied sub
stantially upon Georgia evidentiary rules rather than the
unpersuasiveness of the evidence Davis brought forward.
See App. to Pet. for Writ of Habeas Corpus 57a–63a.)
   The Georgia Supreme Court “look[ed] beyond bare legal
principles that might otherwise be controlling to the core
question of whether a jury presented with Davis’s alleg
edly-new testimony would probably find him not guilty or
give him a sentence other than death.” Davis v. State, 283
Ga. 438, 447, 660 S. E. 2d 354, 362 (2008). After analyz
ing each of Davis’s proffered affidavits and comparing
them with the evidence adduced at trial, it concluded that
it was not probable that they would produce a different
——————
* JUSTICE STEVENS’ other arguments as to why §2254(d)(1) might be
inapplicable—that it does not apply to original petitions filed in this
Court (even though its text covers all federal habeas petitions), and
that it contains an exception (not to be found in its text) for claims of
actual innocence—do not warrant response.
                  Cite as: 557 U. S. ____ (2009)            5

                      SCALIA, J., dissenting

result. See id., at 440–447, 660 S. E. 2d, at 358–363.
   When Davis sought clemency before the Georgia Board
of Pardons and Paroles, that tribunal stayed his execution
and “spent more than a year studying and considering
[his] case.” Brief in Opposition 14–15 (statement of Board
of Pardons and Paroles). It “gave Davis’ attorneys an
opportunity to present every witness they desired to sup
port their allegation that there is doubt as to Davis’ guilt”;
it “heard each of these witnesses and questioned them
closely.” Id., at 15. It “studied the voluminous trial tran
script, the police investigation report and the initial
statements of the witnesses,” and “had certain physical
evidence retested and Davis interviewed.” Ibid. “After an
exhaustive review of all available information regarding
the Troy Davis case and after considering all possible
reasons for granting clemency, the Board . . . determined
that clemency is not warranted.” Ibid.
   After reviewing the record, the Eleventh Circuit came to
a conclusion “wholly consonant with the repeated conclu
sions of the state courts and the State Board of Pardons
and Paroles.” 565 F. 3d 810, 825 (2009). “When we view
all of this evidence as a whole, we cannot honestly say that
Davis can establish by clear and convincing evidence that
a jury would not have found him guilty of Officer
MacPhail’s murder.” Id., at 826.
   Today, without explanation and without any meaningful
guidance, this Court sends the District Court for the
Southern District of Georgia on a fool’s errand. That court
is directed to consider evidence of actual innocence which
has been reviewed and rejected at least three times, and
which, even if adequate to persuade the District Court,
cannot (as far as anyone knows) form the basis for any
relief. I truly do not see how the District Court can dis
cern what is expected of it. If this Court thinks it possible
that capital convictions obtained in full compliance with
law can never be final, but are always subject to being set
6                       IN RE DAVIS

                     SCALIA, J., dissenting

aside by federal courts for the reason of “actual innocence,”
it should set this case on our own docket so that we can (if
necessary) resolve that question. Sending it to a district
court that “might” be authorized to provide relief, but then
again “might” be reversed if it did so, is not a sensible way
to proceed.
