What if a Defendant Says He Has Evidence Proving His Innocence, but He Missed the Filing Deadline?

The law, lawyers, and the court.
Feb. 25 2013 12:57 PM

Fatal Deadline

What if a defendant says he has evidence proving his innocence, but he missed the filing deadline.

Chief Justice of the Supreme Court John Roberts and Justice Samuel Alito.
Two Supreme Court cases being argued Monday —McQuiggin v. Perkins and Trevino v. Thaler—demonstrate how deadlines still carry potentially fatal consequence

Photo by Jason Reed/Reuters

In the 18th century, the word deadline described the point, a certain number of feet from a prison building, at which guards could shoot escaping prisoners. Today, deadlines still carry potentially fatal consequences, as two Supreme Court cases being argued Monday demonstrate. In McQuiggin v. Perkins and Trevino v. Thaler, two defendants are fighting for the chance to present evidence that could call into question their convictions, even though they have both missed deadlines to make their claims.

Floyd Perkins is behind bars for life for a fatal stabbing. He says he has evidence showing that someone else might have committed the crime. Carlos Trevino faces the death penalty for a brutal rape and murder. He wants to show that his lawyer failed to represent him adequately during trial—a failure that might mean the difference between life and death.

Both defendants have missed their deadlines to make these claims under a 1996 federal statute that drastically cut back on courts’ authority to conduct the kind of last-ditch review—the writ of habeas corpus—that both Perkins and Trevino are asking for. In Perkins’s case, the federal law requires a defendant to ask the court to review his case within a year of discovering new evidence. After he was convicted, Perkins, with his sister’s help, got statements from three witnesses suggesting that someone else might be guilty. The problem is that he didn’t file for a federal court to review his case until nearly eight years after the last of these witnesses came forward.

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The state of Michigan, which prosecuted him, claims that under a recent Supreme Court decision, Perkins has to prove that he “diligently pursued” his rights to qualify for a hearing to review his evidence of innocence. Because Perkins waited so long after discovering the new evidence before filing, the state argues that he should not get a hearing to review the new evidence. Perkins’s lawyers argue that the courts have not, and should not, impose a filing deadline for a defendant who wants to prove that he is actually innocent, because imprisoning the wrong person is a fundamental miscarriage of justice.

Carlos Trevino says that at his trial, his lawyer failed to conduct even a basic investigation into the kind of mitigating evidence—childhood abuse, neglect, and mental disabilities—that could have persuaded a jury to spare him the death penalty. Then on appeal, his counsel failed to argue that Trevino’s trial attorney had been ineffective. Years later, another attorney investigated Trevino’s background and history and uncovered the evidence that might have made a difference to the jury. Based on this evidence and the fact that Trevino’s trial attorney had failed to investigate it, Trevino’s new lawyer asked the federal court to review his case again.    

But the U.S. Court of Appeals for the 5th Circuit held that Trevino was making this claim too late; if he wanted to show he had a bad lawyer, he should have done so during his earlier appeal. After the 5th Circuit’s decision, however, the Supreme Court in 2012 decided a case that might give Trevino a second chance. That case, Martinez v. Ryan, allowed an Arizona defendant a chance to show that his lawyer hadn’t properly represented him even after he had missed his opportunity to do so on his first appeal. Martinez’s attorneys on appeal, like Trevino’s had failed to point out how inadequate his trial counsel had been. In Trevino’s case Monday, however lawyers for Texas, which prosecuted Trevino, argue that the state—unlike Arizona—already gives defendants multiple meaningful chances to claim that their lawyers were inadequate.  

Both Perkins and Trevino are contending with inflexible filing deadlines, built into a federal law that severely curtailed defendants’ access to the courts. Poor defendants, likely to have the worst lawyers, particularly risk missing the deadlines and losing a chance to have their convictions reviewed. If they win, Perkins and Trevino will get review of their own claims; they might also carve out a narrow window of opportunity for others fighting their convictions who have missed deadlines.  


Charanya Krishnaswami is a recent graduate of Yale Law School. She is a co-author of the report “Peacekeeping Without Accountability,” released in August by the Transnational Development Clinic at Yale Law School and the Global Health Justice Partnership between the law school and the Yale School of Public Health.

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