We must decide whether to recognize a judge-made exception to the statute of limitations for federal habeas relief in the case of a state prisoner who makes a showing of actual innocence in his original petition.
Lee v. Lampert (CA9) (here). Everyone - include Judge O'Scannlain - seems to agree on two things: 1) An innocent man was convicted. 2) His statutory deadline for seeking relief under a constitutional provision - the Writ of Habeas Corpus - has expired. What to do?
If you know anything about Judge O'Scannlain and other "judicial conservatives," then you know the answer:
We have previously refrained from deciding whether there is an actual innocence exception that serves as a gateway through the AEDPA statute of limitations to the merits of a petitioner’s claims. Instead, we have assumed such an exception and have evaluated the actual innocence claims themselves, waiting until a state prisoner shows actual innocence to answer the legal question.
No more of these assumptions. Judge O'Scannlain does prisoners everywhere a favor:
We decline to prolong the inevitable recognition that there is no “actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.
If an innocent man can be kept in prison because of a statutory deadline, then the Constitution means nothing. And so Judge O'Scannlain concludes that an innocent man should remain in prison.