In Hyman v. Brown, __ F.3d __ (2d Cir. June 24, 2019), the Court reversed a judgment granting habeas corpus relief from a state murder conviction under 28 U.S.C. § 2254. Judge Raggi wrote the majority opinion, in which Judge Droney joined. Judge Jacobs concurred in a separate opinion.
The Court held that the petitioner had failed to make the “gateway showing of actual innocence” necessary to permit review of his procedurally barred claim of ineffective assistance of counsel. The Court’s reasoning is lengthy and merits the attention of anyone pursuing an “actual innocence” claim. And the news for other petitioners may not be all bad: the Court rejected the State’s argument, for example, that there are “categorical limits” on the types of evidence that can be offered to demonstrate actual innocence. Nevertheless, Hyman is a deeply troubling case: both the majority opinion and the concurrence acknowledge that the petitioner’s claim of actual innocence is “credible.” But the Court ruled that he is not entitled to relief because his innocence claim is not sufficiently “compelling” to clear the gateway hurdle of actual innocence.