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

                     STEVENS, J., concurring

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

   The motion of NAACP, et al. for leave to file a brief as
amici curiae is granted. The motion of Bob Barr, et al. for
leave to file a brief as amici curiae is granted. The peti
tion for a writ of habeas corpus is transferred to the
United States District Court for the Southern District of
Georgia for hearing and determination. The District
Court should receive testimony and make findings of fact
as to whether evidence that could not have been obtained
at the time of trial clearly establishes petitioner’s inno
cence. JUSTICE SOTOMAYOR took no part in the considera
tion or decision of these motions and this petition.
   JUSTICE STEVENS, with whom JUSTICE GINSBURG and
JUSTICE BREYER join, concurring.
   JUSTICE SCALIA’s dissent is wrong in two respects.
First, he assumes as a matter of fact that petitioner Davis
is guilty of the murder of Officer MacPhail. He does this
even though seven of the State’s key witnesses have re
canted their trial testimony; several individuals have
implicated the State’s principal witness as the shooter;
and “no court,” state or federal, “has ever conducted a
hearing to assess the reliability of the score of [postconvic
tion] affidavits that, if reliable, would satisfy the threshold
showing for a truly persuasive demonstration of actual
innocence,” 565 F. 3d 810, 827 (CA11 2009) (Barkett, J.,
dissenting) (internal quotation marks omitted). The sub
stantial risk of putting an innocent man to death clearly
provides an adequate justification for holding an eviden
tiary hearing. Simply put, the case is sufficiently “excep
tional” to warrant utilization of this Court’s Rule 20.4(a),
2                        IN RE DAVIS

                     STEVENS, J., concurring

28 U. S. C. §2241(b), and our original habeas jurisdiction.
See Byrnes v. Walker, 371 U. S. 937 (1962); Chaapel v.
Cochran, 369 U. S. 869 (1962).
   Second, JUSTICE SCALIA assumes as a matter of law
that, “[e]ven if the District Court were to be persuaded by
Davis’s affidavits, it would have no power to grant relief”
in light of 28 U. S. C. §2254(d)(1). Post, at 2. For several
reasons, however, this transfer is by no means “a fool’s
errand.” Post, at 5. The District Court may conclude that
§2254(d)(1) does not apply, or does not apply with the
same rigidity, to an original habeas petition such as this.
See Felker v. Turpin, 518 U. S. 651, 663 (1996) (expressly
leaving open the question whether and to what extent the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) applies to original petitions). The court may also
find it relevant to the AEDPA analysis that Davis is bring
ing an “actual innocence” claim. See, e.g., Triestman v.
United States, 124 F. 3d 361, 377–380 (CA2 1997) (dis
cussing “serious” constitutional concerns that would arise
if AEDPA were interpreted to bar judicial review of cer
tain actual innocence claims); Pet. for Writ of Habeas
Corpus 20–22 (arguing that Congress intended actual
innocence claims to have special status under AEDPA).
Even if the court finds that §2254(d)(1) applies in full, it is
arguably unconstitutional to the extent it bars relief for a
death row inmate who has established his innocence.
Alternatively, the court may find in such a case that the
statute’s text is satisfied, because decisions of this Court
clearly support the proposition that it “would be an atro
cious violation of our Constitution and the principles upon
which it is based” to execute an innocent person. 565
F. 3d, at 830 (Barkett, J., dissenting); cf. Teague v. Lane,
489 U. S. 288, 311–313 (1989) (plurality opinion).
   JUSTICE SCALIA would pretermit all of these unresolved
legal questions on the theory that we must treat even the
most robust showing of actual innocence identically on
                 Cite as: 557 U. S. ____ (2009)           3

                    STEVENS, J., concurring

habeas review to an accusation of minor procedural error.
Without briefing or argument, he concludes that Congress
chose to foreclose relief and that the Constitution permits
this. But imagine a petitioner in Davis’s situation who
possesses new evidence conclusively and definitively prov
ing, beyond any scintilla of doubt, that he is an innocent
man. The dissent’s reasoning would allow such a peti
tioner to be put to death nonetheless. The Court correctly
refuses to endorse such reasoning.
