Caroline Livett, Note, 28 U.S.C. § 2254(J): Freestanding Innocence as a Ground for Habeas Relief: Time For Congress to Answer the Court's Embarrassing Question, 14 Lewis & Clark L. Rev. 1649 (2010):
[August 18, 2011 Update: For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].
The Supreme Court has struggled with whether a showing of innocence should be an independent ground for habeas relief, or whether it should just be a way for a prisoner to have his other claims heard by a federal court. Currently, a sufficient showing of actual innocence serves as a gateway through some of the many procedural bars created by courts and the Anti-Terrorism and Effective Death Penalty Act. Through this gateway, a prisoner who produces sufficient evidence of innocence can have his habeas claims heard by a federal court despite his failure to follow all of the proper procedures. This Comment suggests that the Court will never definitively answer this question and that Congress should instead amend the federal habeas statutes to make freestanding innocence a ground for habeas relief.