ABSTRACT
In 1982, Leonel Herrera was convicted and sentenced to death in Texas for shooting and killing a police officer. Although Herrera was asking only that the Court vacate his sentence, logically he ought to be freed or, at least, receive a new trial. William H. Rehnquist distinguished a line of precedent in which the petitioner, by making a colorable show of actual innocence, could overcome certain procedural barriers to having his constitutional claim considered on the merits by the habeas court. The majority, however, did leave open the possibility that a death-sentenced prisoner who, unlike Herrera, made "a truly persuasive demonstration of 'actual innocence' " after trial might obtain federal relief if no state forum would process his claim. In dissent, Justice Harry A. Blackmun, who believed Herrera deserved a hearing, wrote that it ought to suffice for the claimant to show that he was "probably" innocent.
