Actual Innocence Test in Habeas Case Splits Ninth Circuit Judges

The Ninth Circuit backed a panel opinion applying the actual innocence standard for a writ of habeas corpus to a non-capital case, denying that holding en banc review.

But the Tuesday denial garnered a harsh dissent from Judge Ryan D. Nelson and a cohort of 11 other Judges. He said the decision is inconsistent with circuit and U.S. Supreme Court precedent, and claimed that the Ninth Circuit is now marooned “on our own island” when it comes to habeas corpus review.

In a concurrence to the denial of review, Judge William A. Fletcher, joined by Judge Morgan B. Christen, explained ...