                                        In the
              United States Court of Appeals
                           for the Fifth Circuit
                                 _______________

                                       m 01-41389
                                     _______________



                              MICHAEL WAYNE HALEY,

                                                        Petitioner-Appellee,

                                        VERSUS

                                     JANIE COCKRELL,
       DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                        Respondent-Appellant.


                             _________________________

                       Appeal from the United States District Court
                            for the Eastern District of Texas
                            _________________________

                                      March 19, 2003


          ON PETITION FOR                          Treating the petition for rehearing en banc
        REHEARING EN BANC                       as a petition for panel rehearing, the petition
                                                for panel rehearing is DENIED. The court
      (Opinion September 27, 2002,              having been polled at the request of one of the
             306 F.3d 257)                      members of the court, and a majority of the
                                                judges who are in regular active service not
Before DEMOSS, STEWART, and DENNIS,             having voted in favor (FED. R. APP. P. 35 and
  Circuit Judges.                               5TH CIR. R. 35), the petition for rehearing
                                                en banc is DENIED.
PER CURIAM:
JERRY E. SMITH, Circuit Judge, with whom                extended the       exception to        non-capital
   JOLLY, JONES, BARKSDALE, EMILIO M.                   sentences.1
   GARZA, and CLEMENT, Circuit Judges,
   join, dissenting from the denial of                     This case presents a perfect opportunity for
   rehearing en banc:                                   the full court to consider whether to extend
                                                        the exception to non-capital sentences where
   This exceptionally important case deserves           the petitioner is not actually innocent of the
the attention of the en banc court. For the first       crime. This purely legal question is unsullied
time, we extend the “actual innocence” excep-           by factual disputes: Texas concedes that
tion for procedurally defaulted habeas corpus           Haley was not eligible under Texas law for the
claims to non-capital sentences. The federal            sentence he received, because the indictment
courts of appeals are split three ways on this          wrongly alleged that Haley’s prior drug
question, and the panel opinion aligns this             conviction was final before he committed his
court with one of the two positions adopted by          prior robbery, a chronological order necessary
only one other circuit. Before this decision is         to Haley’s sentence enhancement.2
set in stone as binding circuit precedent, the
issue should receive review and thorough con-              It bears repeating that Texas concedes this
sideration by the entire court.                         error and argues only that the actual innocence
                                                        exception should not extend to non-capital
                        I.                              sentences. Thus, this case squarely presents a
   In general, a habeas petitioner may not raise        legal question of exceptional importance in an
a procedurally defaulted claim, i.e., a claim not       unusually pristine form.
presented to the state court, unless he demon-
strates cause for the default and prejudice from                              II.
the alleged constitutional violation. Wain-                                   A.
wright v. Sykes, 433 U.S. 72 (1977). A peti-               In various procedural settings, three circuits
tioner may, however, obtain a hearing on a              have held that the actual innocence exception
procedurally defaulted claim if he demon-
strates his actual innocence of the underlying
offense, even if he cannot satisfy the general
                                                           1
cause-and-prejudice test. Murray v. Carrier,                  We have assumed twice, without deciding,
477 U.S. 478, 496 (1986).                “Actual        that the exception extends to non-capital sentences.
innocence” in that context means the petitioner         See Sones v. Hargett, 61 F.3d 410, 413 (5th Cir.
did not commit the crime.                               1995); Smith v. Collins, 977 F.2d 951, 959 (5th
                                                        Cir. 1992).
   The Supreme Court has extended the actual               2
                                                              The panel suggests a second error in the in-
innocence exception for the cause-and-
                                                        dictment, namely, an erroneous allegation that Hal-
prejudice test to the context of capital sen-           ey’s prior robbery offense involved a deadly
tencing, meaning a petitioner who has com-              weapon. Haley v. Cockrell, 306 F.3d 257, 261 &
mitted the crime may, nonetheless, be “actually         n. 7, 262, 263 & n.10, 264, 267 (5th Cir. 2002).
innocent” of the penalty of death. Sawyer v.            In his response to the petition for rehearing en
Whitley, 505 U.S. 333 (1992). Neither the               banc, Haley concedes that any such error is
Supreme Court nor this court, however, has              irrelevant, because his enhancement rested solely
                                                        on the chronological order of his convictions.

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

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


                                                     4
Court would not have added the qualifying
phrases “in the capital sentencing context” or
“in the setting of capital punishment” if it
intended to extend the exception only to
capital sentences.

   But “[m]ore importantly,” according to the
panel, “the Court has noted that the purpose of
the [actual innocence] rule ‘is grounded in the
equitable discretion of habeas courts to see
that federal constitutional errors do not result
in the incarceration of innocent persons.’”
Haley, 306 F.3d at 265 (quoting Herrera, 506
U.S. at 404). Herrera, however, is not
especially helpful to the question before this
court.

    In Herrera, the petitioner claimed to be in-
nocent of the murder of which he was
convicted. Haley, on the other hand, is not
innocent, nor does he claim to be; he is a re-
cidivist offender duly convicted after a full and
fair trial and whose conviction the state courts
repeatedly upheld on appeal and collateral re-
view. Further, the Supreme Court denied re-
lief in Herrera. Even if we were to conclude
that the actual innocence exception extends to
non-capital sentences, therefore, Herrera
would not support the extension.

   In light of the limited guidance from the
Supreme Court, and ambiguity in what
guidance there is, the en banc court should
have reheard this case to determine whether
and, if so, how the actual innocence exception
applies to non-capital sentences. Accordingly,
I respectfully dissent from the denial of
rehearing en banc.




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