DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION v. HALEY

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386 OCTOBER TERM, 2003
Syllabus
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION v. HALEY
certiorari to the united states court of appeals for
the fifth circuit
No. 02–1824. Argued March 2, 2004—Decided May 3, 2004
Respondent was charged with and convicted of felony theft. Based on
two prior convictions, he was also charged as a habitual offender.
Under Texas’ habitual offender statute, a defendant convicted of a felony
is subject to a sentence of 2 to 20 years if (1) he has two prior felony
convictions, and (2) the conviction for the first prior offense became final
before commission of the second. Texas law requires the State to prove
the habitual offender allegations to a jury beyond a reasonable doubt at
a separate penalty hearing. The jury here convicted respondent of the
habitual offender charge, and the judge sentenced him to 161⁄ 2 years.
As it turned out, the evidence presented at the penalty phase showed
that respondent had committed his second offense three days before his
first conviction became final, meaning that he was not eligible for the
habitual offender enhancement. No one, including defense counsel,
noted the discrepancy—either at trial or on direct appeal. Respondent
first raised the issue in a request for state postconviction relief, arguing
that the evidence at the penalty hearing was insufficient to support the
habitual offender conviction. The state court rejected his sufficiency of
the evidence claim on procedural grounds, because he had not raised the
issue earlier; the state court likewise rejected respondent’s claim that
counsel had been ineffective for failing to object. Respondent renewed
his sufficiency of the evidence and ineffective assistance claims in a sub-
sequent federal habeas application. Conceding that respondent was
not, in fact, eligible for the habitual offender enhancement, the State
nevertheless argued that respondent had procedurally defaulted his suf-
ficiency of the evidence claim. The District Court excused the proce-
dural default because respondent was actually innocent of the enhanced
sentence; it thus did not reach the ineffective assistance claim. The
Fifth Circuit affirmed, holding that the actual innocence exception ap-
plies to noncapital sentencing procedures involving career offenders and
habitual felony offenders.
Held: A federal court faced with allegations of actual innocence, whether
of the sentence or of the crime charged, must first address all nonde-
faulted claims for comparable relief and other grounds for cause to ex-

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387 Cite as: 541 U. S. 386 (2004)
Syllabus
cuse the procedural default. Normally, a federal court will not enter-
tain a procedurally defaulted constitutional claim in a habeas petition
absent a showing of cause and prejudice to excuse the default. How-
ever, this Court recognizes a narrow exception to the general rule when
the applicant can demonstrate actual innocence of the substantive of-
fense, Murray v. Carrier, 477 U. S. 478, 496, or, in the capital sentencing
context, of the aggravating circumstances rendering the inmate eligible
for the death penalty, Sawyer v. Whitley, 505 U. S. 333. The Court
declines to answer the question presented here, whether this exception
should be extended to noncapital sentencing error, because the District
Court failed first to consider alternative grounds for relief urged by
respondent. This avoidance principle was implicit in Carrier itself,
where the Court expressed confidence that, “for the most part, ‘victims
of a fundamental miscarriage of justice will meet the cause-and-
prejudice standard,’ ” 477 U. S., at 495–496, particularly given the avail-
ability of ineffective assistance of counsel claims, id., at 496. Petitioner
concedes that respondent has a viable and significant ineffective assist-
ance of counsel claim. Success on the merits would give respondent all
of the relief that he seeks, i. e., resentencing, and also would provide
cause to excuse the procedural default of his sufficiency of the evidence
claim. The many threshold legal questions often accompanying actual
innocence claims provide additional reason for restraint. For instance,
respondent’s claim raises the question whether the holding of In re
Winship, 397 U. S. 358—that each element of a criminal offense must be
proved beyond a reasonable doubt—should be extended to proof of prior
convictions used to support recidivist enhancements. Not all actual in-
nocence claims will involve threshold constitutional questions, but, as
this case illustrates, such claims are likely to present equally difficult
questions regarding the scope of the actual innocence exception itself.
Pp. 392–396.
306 F. 3d 257, vacated and remanded.
O’Connor, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Scalia, Thomas, Ginsburg, and Breyer, JJ., joined. Ste-
vens, J., filed a dissenting opinion, in which Kennedy and Souter, JJ.,
joined, post, p. 396. Kennedy, J., filed a dissenting opinion, post, p. 399.
R. Ted Cruz, Solicitor General of Texas, argued the cause
for petitioner. With him on the briefs were Greg Abbott,
Attorney General, Barry R. McBee, First Assistant At-
torney General, and Danica L. Milios, Assistant Solicitor
General.

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388 DRETKE v. HALEY
Opinion of the Court
Matthew D. Roberts argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Solicitor General Olson, Assistant Attorney Gen-
eral Wray, and Deputy Solicitor General Dreeben.
Eric M. Albritton, by appointment of the Court, 540 U. S.
1044, argued the cause for respondent. With him on the
brief was Jeffrey L. Bleich.*
Justice O’Connor delivered the opinion of the Court.
Out of respect for finality, comity, and the orderly adminis-
tration of justice, a federal court will not entertain a proce-
durally defaulted constitutional claim in a petition for habeas
corpus absent a showing of cause and prejudice to excuse
the default. We have recognized a narrow exception to the
general rule when the habeas applicant can demonstrate that
the alleged constitutional error has resulted in the conviction
of one who is actually innocent of the underlying offense or,
in the capital sentencing context, of the aggravating circum-
stances rendering the inmate eligible for the death penalty.
Murray v. Carrier, 477 U. S. 478 (1986); Sawyer v. Whitley,
505 U. S. 333 (1992). The question before us is whether this
exception applies where an applicant asserts “actual inno-
cence” of a noncapital sentence. Because the District Court
failed first to consider alternative grounds for relief urged
*A brief of amici curiae urging reversal was filed for the State of Illi-
nois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feiner-
man, Solicitor General, Linda D. Woloshin and Domenica A. Osterberger,
Assistant Attorneys General, and Dan Schweitzer, and by the Attorneys
General for their respective States as follows: Bill Pryor of Alabama,
Terry Goddard of Arizona, Mike Moore of Mississippi, Jeremiah W. (Jay)
Nixon of Missouri, Jon Bruning of Nebraska, Jim Petro of Ohio, W. A.
Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Lawrence E.
Long of South Dakota, Mark L. Shurtleff of Utah, and Patrick J. Crank
of Wyoming.
Briefs of amici curiae urging affirmance were filed for Zachary W. Car-
ter et al. by James Orenstein and Alison Tucher; and for James S. Lieb-
man et al. by Edward C. DuMont.

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Opinion of the Court
by respondent, grounds that might obviate any need to reach
the actual innocence question, we vacate the judgment and
remand.
I
In 1997, respondent Michael Wayne Haley was arrested
after stealing a calculator from a local Wal-Mart and at-
tempting to exchange it for other merchandise. Respondent
was charged with, and found guilty at trial of, theft of prop-
erty valued at less than $1,500, which, because respondent
already had two prior theft convictions, was a “state jail fel-
ony” punishable by a maximum of two years in prison. App.
8; Tex. Penal Code Ann. § 31.03(e)(4)(D) (Supp. 2004). The
State also charged respondent as a habitual felony offender.
The indictment alleged that respondent had two prior felony
convictions and that the first—a 1991 conviction for delivery
of amphetamine—“became final prior to the commission” of
the second—a 1992 robbery. App. 9. The timing of the
first conviction and the second offense is significant: Under
Texas’ habitual offender statute, only a defendant convicted
of a felony who “has previously been finally convicted of two
felonies, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous convic-
tion having become final, . . . shall be punished for a second-
degree felony.” § 12.42(a)(2) (emphasis added). A second
degree felony carries a minimum sentence of 2 and a maxi-
mum sentence of 20 years in prison. § 12.33(a) (2003).
Texas provides for bifurcated trials in habitual offender
cases. Tex. Code Crim. Proc. Ann., Art. 37.07, § 3 (Vernon
Supp. 2004). If a defendant is found guilty of the substan-
tive offense, the State, at a separate penalty hearing, must
prove the habitual offender allegations beyond a reasonable
doubt. Ibid. During the penalty phase of respondent’s
trial, the State introduced records showing that respondent
had been convicted of delivery of amphetamine on October
18, 1991, and attempted robbery on September 9, 1992. The
record of the second conviction, however, showed that re-

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390 DRETKE v. HALEY
Opinion of the Court
spondent had committed the robbery on October 15, 1991—
three days before his first conviction became final. Neither
the prosecutor, nor the defense attorney, nor the witness ten-
dered by the State to authenticate the records, nor the trial
judge, nor the jury, noticed the 3-day discrepancy. Indeed,
the defense attorney chose not to cross-examine the State’s
witness or to put on any evidence.
The jury returned a verdict of guilty on the habitual of-
fender charge and recommended a sentence of 161 ⁄ 2 years; the
court followed the recommendation. Respondent appealed.
Appellate counsel did not mention the 3-day discrepancy
nor challenge the sufficiency of the penalty-phase evidence
to support the habitual offender enhancement. The State
Court of Appeals affirmed respondent’s conviction and sen-
tence; the Texas Court of Criminal Appeals refused respond-
ent’s petition for discretionary review.
Respondent thereafter sought state postconviction relief,
arguing for the first time that he was ineligible for the habit-
ual offender enhancement based on the timing of his second
conviction. App. 83, 87–88. The state habeas court refused
to consider the merits of that claim because respondent had
not raised it, as required by state procedural law, either at
trial or on direct appeal. Id., at 107, 108. The state habeas
court rejected respondent’s related ineffective assistance of
counsel claim, saying only that “counsel was not ineffective”
for failing to object to or to appeal the enhancement. Id.,
at 108. The Texas Court of Criminal Appeals summarily
denied respondent’s state habeas application. Id., at 109.
In August 2000, respondent filed a timely pro se appli-
cation for a federal writ of habeas corpus pursuant to 28
U. S. C. § 2254, renewing his sufficiency of the evidence and
ineffective assistance of counsel claims. App. 110, 118–119;
id., at 122, 124, 126–127. The State conceded that respond-
ent was “correct in his assertion that the enhancement para-
graphs as alleged in the indictment do not satisfy section
12.42(a)(2) of the Texas Penal Code.” Id., at 132, 140.

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Opinion of the Court
Rather than agree to resentencing, however, the State ar-
gued that respondent had procedurally defaulted the suffi-
ciency of the evidence claim by failing to raise it before the
state trial court or on direct appeal. Id., at 142–144. The
Magistrate Judge, to whom the habeas application had been
referred, recommended excusing the procedural default and
granting the sufficiency of the evidence claim because re-
spondent was “ ‘actually innocent’ of a sentence for a second-
degree felony.” Haley v. Director, Texas Dept. of Criminal
Justice, Institutions Div., Civ. No. 6:00cv518 (ED Tex., Sept.
13, 2001), p. 10, App. to Pet. for Cert. 49a (citing Sones v.
Hargett, 61 F. 3d 410, 419 (CA5 1995)). Because she recom-
mended relief on the erroneous enhancement claim, the Mag-
istrate Judge did not address respondent’s related ineffective
assistance of counsel challenges. App. to Pet. for Cert. 50a–
52a. The District Court adopted the Magistrate Judge’s re-
port, granted the application, and ordered the State to re-
sentence respondent “without the improper enhancement.”
Id., at 36a–37a (Oct. 27, 2001).
The Court of Appeals for the Fifth Circuit affirmed, hold-
ing narrowly that the actual innocence exception “applies to
noncapital sentencing procedures involving a career or habit-
ual felony offender.” Haley v. Cockrell, 306 F. 3d 257, 264
(2002). The Fifth Circuit thus joined the Fourth Circuit in
holding that the exception should not extend beyond alleg-
edly erroneous recidivist enhancements to other claims of
noncapital factual sentencing error: “[T]o broaden the excep-
tion further would ‘swallow’ the ‘cause portion of the cause
and prejudice requirement’ and it ‘would conflict squarely
with Supreme Court authority indicating that generally
more than prejudice must exist to excuse a procedural de-
fault.’ ” Id., at 266 (quoting United States v. Mikalajunas,
186 F. 3d 490, 494–495 (CA4 1999)). Finding the exception
satisfied, the panel then granted relief on the merits of re-
spondent’s otherwise defaulted sufficiency of the evidence
claim. In so doing, the panel assumed that challenges to the

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392 DRETKE v. HALEY
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sufficiency of noncapital sentencing evidence are cognizable
on federal habeas under Jackson v. Virginia, 443 U. S. 307
(1979). 306 F. 3d, at 266–267 (citing French v. Estelle, 692
F. 2d 1021, 1024–1025 (CA5 1982)).
The Fifth Circuit’s decision exacerbated a growing diver-
gence of opinion in the Courts of Appeals regarding the
availability and scope of the actual innocence exception in
the noncapital sentencing context. Compare Embrey v.
Hershberger, 131 F. 3d 739 (CA8 1997) (en banc) (no actual
innocence exception for noncapital sentencing error); Reid v.
Oklahoma, 101 F. 3d 628 (CA10 1996) (same), with Spence v.
Superintendent, Great Meadow Correctional Facility, 219
F. 3d 162 (CA2 2000) (actual innocence exception applies in
noncapital sentencing context when error is related to find-
ing of predicate act forming the basis for enhancement), and
Mikalajunas, supra (actual innocence exception applies in
noncapital sentencing context where error relates to a recidi-
vist enhancement). We granted the State’s request for a
writ of certiorari, 540 U. S. 945 (2003), and now vacate and
remand.
II
The procedural default doctrine, like the abuse of writ doc-
trine, “refers to a complex and evolving body of equitable
principles informed and controlled by historical usage, statu-
tory developments, and judicial decisions.” McCleskey v.
Zant, 499 U. S. 467, 489 (1991). A corollary to the habeas
statute’s exhaustion requirement, the doctrine has its roots
in the general principle that federal courts will not disturb
state court judgments based on adequate and independent
state law procedural grounds. Wainwright v. Sykes, 433
U. S. 72, 81 (1977); Brown v. Allen, 344 U. S. 443, 486–487
(1953). But, while an adequate and independent state pro-
cedural disposition strips this Court of certiorari jurisdiction
to review a state court’s judgment, it provides only a strong
prudential reason, grounded in “considerations of comity and
concerns for the orderly administration of criminal justice,”

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not to pass upon a defaulted constitutional claim presented
for federal habeas review. Francis v. Henderson, 425 U. S.
536, 538–539 (1976); see also Fay v. Noia, 372 U. S. 391, 399
(1963) (“[T]he doctrine under which state procedural defaults
are held to constitute an adequate and independent state law
ground barring direct Supreme Court review is not to be
extended to limit the power granted the federal courts under
the federal habeas statute”). That being the case, we have
recognized an equitable exception to the bar when a habeas
applicant can demonstrate cause and prejudice for the proce-
dural default. Wainwright, supra, at 87. The cause and
prejudice requirement shows due regard for States’ finality
and comity interests while ensuring that “fundamental fair-
ness [remains] the central concern of the writ of habeas cor-
pus.” Strickland v. Washington, 466 U. S. 668, 697 (1984).
The cause and prejudice standard is not a perfect safe-
guard against fundamental miscarriages of justice. Murray
v. Carrier, 477 U. S. 478 (1986), thus recognized a narrow
exception to the cause requirement where a constitutional
violation has “probably resulted” in the conviction of one
who is “actually innocent” of the substantive offense. Id.,
at 496; accord, Schlup v. Delo, 513 U. S. 298 (1995). We sub-
sequently extended this exception to claims of capital sen-
tencing error in Sawyer v. Whitley, 505 U. S. 333 (1992).
Acknowledging that the concept of “ ‘actual innocence’ ” did
not translate neatly into the capital sentencing context, we
limited the exception to cases in which the applicant could
show “by clear and convincing evidence that, but for a consti-
tutional error, no reasonable juror would have found the peti-
tioner eligible for the death penalty under the applicable
state law.” Id., at 336.
We are asked in the present case to extend the actual inno-
cence exception to procedural default of constitutional claims
challenging noncapital sentencing error. We decline to an-
swer the question in the posture of this case and instead hold
that a federal court faced with allegations of actual inno-

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394 DRETKE v. HALEY
Opinion of the Court
cence, whether of the sentence or of the crime charged, must
first address all nondefaulted claims for comparable relief
and other grounds for cause to excuse the procedural default.
This avoidance principle was implicit in Carrier itself,
where we expressed confidence that, “for the most part,
‘victims of a fundamental miscarriage of justice will meet
the cause-and-prejudice standard.’ ” 477 U. S., at 495–496
(quoting Engle v. Isaac, 456 U. S. 107, 135 (1982)). Our con-
fidence was bolstered by the availability of ineffective assist-
ance of counsel claims—either as a ground for cause or as a
freestanding claim for relief—to safeguard against miscar-
riages of justice. The existence of such safeguards, we ob-
served, “may properly inform this Court’s judgment in de-
termining ‘[w]hat standards should govern the exercise of
the habeas court’s equitable discretion’ with respect to pro-
cedurally defaulted claims.” Carrier, supra, at 496 (quoting
Reed v. Ross, 468 U. S. 1, 9 (1984)).
Petitioner here conceded at oral argument that respondent
has a viable and “significant” ineffective assistance of counsel
claim. Tr. of Oral Arg. 18 (“[W]e agree at this point there
is a very significant argument of ineffective assistance of
counsel”); see also id., at 7 (agreeing “not [to] raise any proce-
dural impediment” to consideration of the merits of respond-
ent’s ineffective assistance claim on remand). Success on
the merits would give respondent all of the relief that he
seeks—i. e., resentencing. It would also provide cause to
excuse the procedural default of his sufficiency of the evi-
dence claim. Carrier, supra, at 488.
Contrary to the dissent’s view, see post, at 397 (opinion of
Stevens, J.), it is precisely because the various exceptions
to the procedural default doctrine are judge-made rules that
courts as their stewards must exercise restraint, adding to
or expanding them only when necessary. To hold otherwise
would be to license district courts to riddle the cause and
prejudice standard with ad hoc exceptions whenever they
perceive an error to be “clear” or departure from the rules

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Opinion of the Court
expedient. Such an approach, not the rule of restraint
adopted here, would have the unhappy effect of prolonging
the pendency of federal habeas applications as each new ex-
ception is tested in the courts of appeals. And because peti-
tioner has assured us that the State will not seek to reincar-
cerate respondent during the pendency of his ineffective
assistance claim, Tr. of Oral Arg. 52 (“[T]he state is willing
to allow the ineffective assistance case to be litigated before
proceeding to reincarcerate [respondent]”), the negative con-
sequences for respondent of our judgment to vacate and re-
mand in this case are minimal.
While availability of other remedies alone would be suffi-
cient justification for a general rule of avoidance, the many
threshold legal questions often accompanying claims of ac-
tual innocence provide additional reason for restraint. For
instance, citing Jackson v. Virginia, 443 U. S. 307 (1979),
respondent here seeks to bring through the actual innocence
gateway his constitutional claim that the State’s penalty-
phase evidence was insufficient to support the recidivist en-
hancement. But the constitutional hook in Jackson was
In re Winship, 397 U. S. 358 (1970), in which we held that
due process requires proof of each element of a criminal of-
fense beyond a reasonable doubt. We have not extended
Winship’s protections to proof of prior convictions used to
support recidivist enhancements. Almendarez-Torres v.
United States, 523 U. S. 224 (1998); see also Apprendi v.
New Jersey, 530 U. S. 466, 488–490 (2000) (reserving judg-
ment as to the validity of Almendarez-Torres); Monge v. Cal-
ifornia, 524 U. S. 721, 734 (1998) (Double Jeopardy Clause
does not preclude retrial on a prior conviction used to sup-
port recidivist enhancement). Respondent contends that
Almendarez-Torres should be overruled or, in the alterna-
tive, that it does not apply because the recidivist statute at
issue required the jury to find not only the existence of his
prior convictions but also the additional fact that they were
sequential. Brief for Respondent 30–31. These difficult

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396 DRETKE v. HALEY
Stevens, J., dissenting
constitutional questions, simply assumed away by the dis-
sent, see post, at 397 (citing Jackson, supra, and Thompson
v. Louisville, 362 U. S. 199 (1960)), are to be avoided if
possible.
To be sure, not all claims of actual innocence will involve
threshold constitutional issues. Even so, as this case and
the briefing illustrate, such claims are likely to present
equally difficult questions regarding the scope of the actual
innocence exception itself. Whether and to what extent the
exception extends to noncapital sentencing error is just one
example. The judgment of the Court of Appeals is vacated,
and the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Kennedy and
Justice Souter join, dissenting.
The unending search for symmetry in the law can cause
judges to forget about justice. This should be a simple case.
Respondent was convicted of the theft of a calculator.
Because of his prior theft convictions, Texas law treated re-
spondent’s crime as a “state jail felony,” which is punishable
by a maximum sentence of two years in jail. Tex. Penal
Code Ann. § 12.35(a) (2003). But as a result of a congeries
of mistakes made by the prosecutor, the trial judge, and his
attorney, respondent was also erroneously convicted and sen-
tenced under Texas’ habitual offender law, § 12.42(a)(2)
(Supp. 2004). Respondent consequently received a sentence
of more than 16 years in the penitentiary. The State con-
cedes that respondent does not qualify as a habitual offender
and that the 16-year sentence was imposed in error.1 Re-
spondent has already served more than 6 years of that sen-
tence—a sentence far in excess of the 2-year maximum that
Texas law authorizes for respondent’s crime.
1 Brief for Petitioner 4; Tr. of Oral Arg. 4 (“[I]t’s almost a law school
hypothetical, because the error is so clean”).

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Stevens, J., dissenting
Because, as all parties agree, there is no factual basis for
respondent’s conviction as a habitual offender, it follows inex-
orably that respondent has been denied due process of law.
Thompson v. Louisville, 362 U. S. 199 (1960); Jackson v. Vir-
ginia, 443 U. S. 307 (1979). And because that constitutional
error clearly and concededly resulted in the imposition of an
unauthorized sentence, it also follows that respondent is a
“victim of a miscarriage of justice,” Wainwright v. Sykes, 433
U. S. 72, 91 (1977), entitled to immediate and unconditional
release.
The Magistrate Judge, the District Court, and the Court
of Appeals all concluded that respondent is entitled to such
relief. Not a word in any federal statute or any provision
of the Federal Rules of Procedure provides any basis for
challenging that conclusion. The Court’s contrary determi-
nation in this case rests entirely on a procedural rule of its
own invention. But having also invented the complex juris-
prudence that requires a prisoner to establish “cause and
prejudice” as a basis for overcoming procedural default, the
Court unquestionably has the authority to recognize a nar-
row exception for the unusual case that is as clear as this one.
Indeed, in the opinion that first adopted the cause and
prejudice standard, the Court explained its purpose as pro-
viding “an adequate guarantee” that a procedural default
would “not prevent a federal habeas court from adjudicating
for the first time the federal constitutional claim of a defend-
ant who in the absence of such an adjudication will be the
victim of a miscarriage of justice.” Ibid. The Court has
since held that in cases in which the cause and prejudice
standard is inadequate to protect against fundamental mis-
carriages of justice, the cause and prejudice requirement
“must yield to the imperative of correcting a fundamentally
unjust incarceration.” Engle v. Isaac, 456 U. S. 107, 135
(1982).
If there were some uncertainty about the merits of re-
spondent’s claim that he has been incarcerated unjustly, it

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398 DRETKE v. HALEY
Stevens, J., dissenting
might make sense to require him to pursue other avenues
for comparable relief before deciding the claim.2 But in this
case, it is universally acknowledged that respondent’s incar-
ceration is unauthorized. The miscarriage of justice is mani-
fest. Since the “imperative of correcting a fundamentally
unjust incarceration” will lead to the issuance of the writ
regardless of the outcome of the cause and prejudice inquiry,
the Court’s ruling today needlessly postpones final adjudica-
tion of respondent’s claim and perversely prolongs the very
injustice that the cause and prejudice standard was designed
to prevent.
That the State has decided to oppose the grant of habeas
relief in this case, even as it concedes that respondent has
already served more time in prison than the law authorized,
might cause some to question whether the State has forgot-
ten its overriding “obligation to serve the cause of justice.”
United States v. Agurs, 427 U. S. 97, 111 (1976); see post,
p. 399 (Kennedy, J., dissenting). But this Court is surely
no less at fault. In its attempt to refine the boundaries of
the judge-made doctrine of procedural default, the Court has
lost sight of the basic reason why the “writ of habeas corpus
indisputably holds an honored position in our jurisprudence.”
Engle, 456 U. S., at 126. Habeas corpus is, and has for cen-
turies been, a “bulwark against convictions that violate fun-
2 Because it is not always easy to discern the difference between “consti-
tutional claims that call into question the reliability of an adjudication of
legal guilt,” to which the cause and prejudice requirement applies, and
claims that a constitutional violation “probably resulted in the conviction
of one who is actually innocent,” for which failure to show cause is ex-
cused, Murray v. Carrier, 477 U. S. 478, 495–496 (1986), a court reviewing
a claim of actual innocence must generally proceed with caution. But that
type of caution is plainly unwarranted in a case in which constitutional
error has concededly resulted in the imposition of an unlawful sentence.
In such a case, there is simply no risk that entertaining the habeas appli-
cant’s procedurally defaulted claim will result in an unwarranted encroach-
ment on the principles of comity and finality that underlie the procedural
default doctrine.

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Kennedy, J., dissenting
damental fairness.” Ibid. (internal quotation marks omit-
ted). Fundamental fairness should dictate the outcome of
this unusually simple case.
I respectfully dissent.
Justice Kennedy, dissenting.
For the reasons Justice Stevens sets forth, the respond-
ent should be entitled to immediate relief, and I join his dis-
senting opinion. The case also merits this further comment
concerning the larger obligation of state or federal officials
when they know an individual has been sentenced for a crime
he did not commit.
In 1997, Michael Haley was sentenced to serve 16 years
and 6 months in prison for violating the Texas habitual
offender law. Texas officials concede Haley did not violate
this law. They agree that Haley is guilty only of theft, a
crime with a 2-year maximum sentence. Yet, despite the
fact that Haley served more than two years in prison for his
crime, Texas officials come before our Court opposing Ha-
ley’s petition for relief. They wish to send Haley back to
prison for a crime they agree he did not commit.
The rigors of the penal system are thought to be mitigated
to some degree by the discretion of those who enforce the
law. See, e. g., Jackson, The Federal Prosecutor, 31 J. Am.
Inst. Crim. L. & C. 3, 6 (1940–1941). The clemency power
is designed to serve the same function. Among its benign
if too-often ignored objects, the clemency power can correct
injustices that the ordinary criminal process seems unable
or unwilling to consider. These mechanisms hold out the
promise that mercy is not foreign to our system. The law
must serve the cause of justice.
These mitigating elements seem to have played no role in
Michael Haley’s case. Executive discretion and clemency
can inspire little confidence if officials sworn to fight injustice
choose to ignore it. Perhaps some would say that Haley’s
innocence is a mere technicality, but that would miss the

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400 DRETKE v. HALEY
Kennedy, J., dissenting
point. In a society devoted to the rule of law, the difference
between violating or not violating a criminal statute cannot
be shrugged aside as a minor detail.
It may be that Haley’s case provides a convenient mecha-
nism to vindicate an important legal principle. Beyond that,
however, Michael Haley has a greater interest in knowing
that he will not be reincarcerated for a crime he did not
commit. It is not clear to me why the State did not exercise
its power and perform its duty to vindicate that interest in
the first place.