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Full Opinion
SCHLUP
v.
DELO, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER
United States Supreme Court.
*300 *300 Stevens, J.,delivered the opinion of the Court, in which O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed a concurring opinion, post, p. 332. Rehnquist, C. J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined, post, p. 334. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 342.
Sean D. O'Brien argued the cause for petitioner. With him on the briefs were Anthony G. Amsterdam, Randy Hertz, and Timothy K. Ford.
Jeremiah W. (Jay) Nixon, Attorney General of Missouri, argued the cause for respondent. With him on the brief were Stephen D. Hawke and Frank A. Jung, Assistant Attorneys General.[*]
*301 Justice Stevens, delivered the opinion of the Court.
Petitioner Lloyd E. Schlup, Jr., a Missouri prisoner currently under a sentence of death, filed a second federal habeas corpus petition alleging that constitutional error deprived the jury of critical evidence that would have established his innocence. The District Court, without conducting an evidentiary hearing, declined to reach the merits of the petition, holding that petitioner could not satisfy the threshold showing of "actual innocence" required by Sawyer v. Whitley, 505 U. S. 333 (1992). Under Sawyer, the petitioner must show "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner" guilty. Id. , at 336. The Court of Appeals affirmed. We granted certiorari to consider whether the Sawyer standard provides adequate protection against the kind of miscarriage of justice that would result from the execution of a person who is actually innocent.
I
On February 3, 1984, on Walk 1 of the high security area of the Missouri State Penitentiary, a black inmate named Arthur Dade was stabbed to death. Three white inmates from *302 Walk 2, including petitioner, were charged in connection with Dade's murder.
At petitioner's trial in December 1985, the State's evidence consisted principally of the testimony of two corrections officers who had witnessed the killing. On the day of the murder, Sergeant Roger Flowers was on duty on Walk 1 and Walk 2, the two walks on the lower floor of the prison's high security area. Flowers testified that he first released the inmates on Walk 2 for their noon meal and relocked their cells. After unlocking the cells to release the inmates on Walk 1, Flowers noticed an inmate named Rodnie Stewart moving against the flow of traffic carrying a container of steaming liquid. Flowers watched as Stewart threw the liquid in Dade's face. According to Flowers, Schlup then jumped on Dade's back, and Robert O'Neal joined in the attack. Flowers shouted for help, entered the walk, and grabbed Stewart as the two other assailants fled.
Officer John Maylee witnessed the attack from Walk 7, which is three levels and some 40-50 feet above Walks 1 and 2.[1] Maylee first noticed Schlup, Stewart, and O'Neal as they were running from Walk 2 to Walk 1 against the flow of traffic. According to Maylee's testimony, Stewart threw a container of liquid at Dade's face, and then Schlup jumped on Dade's back. O'Neal then stabbed Dade several times in the chest, ran down the walk, and threw the weapon out a window. Maylee did not see what happened to Schlup or Stewart after the stabbing.
The State produced no physical evidence connecting Schlup to the killing, and no witness other than Flowers and Maylee testified to Schlup's involvement in the murder.[2]
*303 Schlup's defense was that the State had the wrong man.[3] He relied heavily on a videotape from a camera in the prisoners' dining room. The tape showed that Schlup was the first inmate to walk into the dining room for the noon meal, and that he went through the line and got his food. Approximately 65 seconds after Schlup's entrance, several guards ran out of the dining room in apparent response to a distress call. Twenty-six seconds later, O'Neal ran into the dining room, dripping blood.[4] Shortly thereafter, Schlup and O'Neal were taken into custody.
Schlup contended that the videotape, when considered in conjunction with testimony that he had walked at a normal pace from his cell to the dining room,[5] demonstrated that he could not have participated in the assault. Because the videotape showed conclusively that Schlup was in the dining room 65 seconds before the guards responded to the distress call, a critical element of Schlup's defense was determining when the distress call went out. Had the distress call sounded shortly after the murder, Schlup would not have had time to get from the prison floor to the dining room, and *304 thus he could not have participated in the murder. Conversely, had there been a delay of several minutes between the murder and the distress call, Schlup might have had sufficient time to participate in the murder and still get to the dining room over a minute before the distress call went out.[6]
The prosecutor adduced evidence tending to establish that such a delay had in fact occurred. First, Flowers testified that none of the officers on the prison floor had radios, thus implying that neither he nor any of the other officers on the floor was able to radio for help when the stabbing occurred. Second, Flowers testified that after he shouted for help, it took him "a couple [of] minutes" to subdue Stewart.[7] Flowers then brought Stewart downstairs, encountered Captain James Eberle, and told Eberle that there had been a "disturbance." [8] Eberle testified that he went upstairs to the prison floor, and then radioed for assistance. Eberle estimated that the elapsed time from when he first saw Flowers *305 until he radioed for help was "approximately a minute."[9] The prosecution also offered testimony from a prison investigator who testified that he was able to run from the scene of the crime to the dining room in 33 seconds and to walk the distance at a normal pace in a minute and 37 seconds.
Neither the State nor Schlup was able to present evidence establishing the exact time of Schlup's release from his cell on Walk 2, the exact time of the assault on Walk 1, or the exact time of the radio distress call. Further, there was no evidence suggesting that Schlup had hurried to the dining room.[10]
After deliberating overnight, the jury returned a verdict of guilty. Following the penalty phase, at which the victim of one of Schlup's prior offenses testified extensively about the sordid details of that offense,[11] the jury sentenced Schlup to death. The Missouri Supreme Court affirmed Schlup's conviction and death sentence, State v. Schlup, 724 S. W. 2d 236 (Mo. 1987), and this Court denied certiorari, Schlup v. Missouri, 482 U. S. 920 (1987).[12]
*306 II
On January 5, 1989, after exhausting his state collateral remedies,[13] Schlup filed a pro se petition for a federal writ of habeas corpus, asserting the claim, among others, that his trial counsel was ineffective for failing to interview and to call witnesses who could establish Schlup's innocence.[14] The District Court concluded that Schlup's ineffectiveness claim was procedurally barred, and it denied relief on that claim without conducting an evidentiary hearing.[15] The Court of Appeals affirmed, though it did not rely on the alleged procedural bar. Schlup v. Armontrout, 941 F. 2d 631 (CA8 1991). Instead, based on its own examination of the record, the Court found that trial counsel's performance had not been constitutionally ineffective, both because counsel had reviewed statements that Schlup's potential witnesses had given to prison investigators, and because the testimony of those witnesses "would be repetitive of the testimony to be presented at trial." Id. , at 639.[16] But cf. 11 F. 3d 738, 746, *307 n. 3 (CA8 1993) (Heaney, J., dissenting) (challenging the conclusion that such testimony would have been "repetitive"). The Court of Appeals denied a petition for rehearing and suggestion for rehearing en banc, Schlup v. Armontrout, 945 F. 2d 1062 (1991), and we denied a petition for certiorari, 503 U. S. 909 (1992).
On March 11, 1992, represented by new counsel, Schlup filed a second federal habeas corpus petition. That petition raised a number of claims, including that (1) Schlup was actually innocent of Dade's murder, and that his execution would therefore violate the Eighth and Fourteenth Amendments, cf. Herrera v. Collins, 506 U. S. 390 (1993); (2) trial counsel was ineffective for failing to interview alibi witnesses; and (3) the State had failed to disclose critical exculpatory evidence. The petition was supported by numerous affidavits from inmates attesting to Schlup's innocence.
The State filed a response arguing that various procedural bars precluded the District Court from reaching the merits of Schlup's claims and that the claims were in any event meritless. Attached to the State's response were transcripts of inmate interviews conducted by prison investigators just five days after the murder. One of the transcripts contained an interview with John Green, an inmate who at the time was the clerk for the housing unit. In his interview, Green stated that he had been in his office at the end of the walks when the murder occurred. Green stated that Flowers had *308 told him to call for help, and that Green had notified base of the disturbance shortly after it began.[17]
Schlup immediately filed a traverse arguing that Green's affidavit provided conclusive proof of Schlup's innocence. Schlup contended that Green's statement demonstrated that a call for help had gone out shortly after the incident. Because the videotape showed that Schlup was in the dining room some 65 seconds before the guards received the distress call, Schlup argued that he could not have been involved in Dade's murder. Schlup emphasized that Green's statement was not likely to have been fabricated, because at the time of Green's interview, neither he nor anyone else would have realized the significance of Green's call to base. Schlup tried to buttress his claim of innocence with affidavits from inmates who stated that they had witnessed the event and that Schlup had not been present.[18] Two of those affidavits *309 suggested that Randy Jordanwho occupied the cell between O'Neal and Stewart in Walk 2, and who, as noted above, see n. 4, supra, is shown on the videotape arriving at lunch with O'Nealwas the third assailant.
On August 23, 1993, without holding a hearing, the District Court dismissed Schlup's second habeas petition and vacated the stay of execution that was then in effect. The District Court concluded that Schlup's various filings did not provide adequate cause for failing to raise his new claims more promptly. Moreover, the court concluded that Schlup had failed to meet the Sawyer v. Whitley, 505 U. S. 333 (1992), standard for showing that a refusal to entertain those claims would result in a fundamental miscarriage of justice. In its discussion of the evidence, the court made no separate comment on the significance of Green's statement.[19]
On September 7, 1993, petitioner filed a motion to set aside the order of dismissal, again calling the court's attention to *310 Green's statement. Two days later, Schlup filed a supplemental motion stating that his counsel had located John Green[20] and had obtained an affidavit from him. That affidavit confirmed Green's postincident statement that he had called base shortly after the assault. Green's affidavit also identified Jordan rather than Schlup as the third assailant.[21]
*311 The District Court denied the motion and the supplemental motion without opinion.
Petitioner then sought from the Court of Appeals a stay of execution pending the resolution of his appeal. Relying on Justice Powell's plurality opinion in Kuhlmann v. Wilson, 477 U. S. 436 (1986), Schlup argued that the District Court should have entertained his second habeas corpus petition, because he had supplemented his constitutional claim "with a colorable claim of factual innocence." Id., at 454.
On October 15, 1993, the Court of Appeals denied the stay application. In an opinion that was subsequently vacated, the majority held that petitioner's claim of innocence was governed by the standard announced in Sawyer v. Whitley, 505 U. S. 333 (1992), and it concluded that under that standard, the evidence of Schlup's guilt that had been adduced at trial foreclosed consideration of petitioner's current constitutional claims.[22]
Judge Heaney dissented. Relying on Green's affidavit, the videotape, and the affidavits of four other eyewitnesses, Judge Heaney concluded that the petitioner had met both the Kuhlmann standard and a proper reading of the Sawyer standard.[23] Cf. infra, at 331. He believed that the District Court should have conducted an evidentiary hearing in which the affiants would have been subjected to examination by the State so "their credibility could be accurately determined."[24]
In the meantime, petitioner's counsel obtained an affidavit from Robert Faherty, the former lieutenant at the prison whom Schlup had passed on the way to lunch on the day of the murder and who had reprimanded Schlup for shouting out the window. See n. 10, supra. Faherty's affidavit stated that Schlup had been in Faherty's presence for at least *312 two and a half minutes; that Schlup was walking at a leisurely pace; and that Schlup "was not perspiring or breathing hard, and he was not nervous." Affidavit of Robert Faherty ¶¶ 4, 6 (Oct. 26, 1993).[25]
On November 15, 1993, the Court of Appeals vacated its earlier opinion and substituted a more comprehensive analysis of the law to support its decision to deny Schlup's request for a stay. 11 F. 3d 738. The majority adhered to its earlier conclusion that Sawyer stated the appropriate standard for evaluating Schlup's claim of actual innocence. 11 F. 3d, at 740. The opinion also contained an extended discussion of Schlup's new evidence. The court noted in particular that Green's new affidavit was inconsistent in part with both his prison interview and his testimony at the Stewart trial. Id. , at 742. The court viewed Faherty's affidavit as simply "an effort to embellish and expand upon his testimony" and concluded "that a habeas court should not permit retrial on such a basis." Id. ,at 743.
Judge Heaney again dissented, concluding that Schlup had "presented truly persuasive evidence that he is actually innocent," and that the District Court should therefore have addressed the merits of Schlup's constitutional claims. Id. , at 744. Judge Heaney also argued that Schlup's ineffectiveness claim was substantial. He noted that Schlup's trial counsel failed to conduct individual interviews with Griffin Bey, McCoy, or any of the other inmates who told investigators that they had seen the killing. Moreover, counsel failed to interview Green about his statement that he had called *313 base. In fact, counsel apparently failed to conduct individual interviews with any of the potential witnesses to the crime.
Judge Heaney adhered to his conclusion that Schlup's counsel was ineffective, even though counsel allegedly had reviewed 100 interviews conducted by prison investigators.[26] Judge Heaney argued that counsel's review of the interview transcriptsrather than demonstrating counsel's effectivenessmade counsel's failure to conduct his own interviews with Green and the few inmates who admitted seeing the attack even more troubling. See id. ,at 747, n. 5. Judge Heaney concluded that Schlup's case should be remanded to the District Court to conduct an evidentiary hearing and, if appropriate, to address the merits of Schlup's constitutional claims.
On November 17, 1993, the Court of Appeals denied a suggestion for rehearing en banc. Dissenting from that denial, three judges joined an opinion describing the question whether the majority should have applied the standard announced in Sawyer v. Whitley, supra, rather than the Kuhlmann standard as "a question of great importance in habeas corpus jurisprudence." 11 F. 3d, at 755. We granted certiorari to consider that question. 511 U. S. 1003 (1994).[27]
III
As a preliminary matter, it is important to explain the difference between Schlup's claim of actual innocence and the *314 claim of actual innocence asserted in Herrera v. Collins, 506 U. S. 390 (1993). In Herrera, the petitioner advanced his claim of innocence to support a novel substantive constitutional claim, namely, that the execution of an innocent person would violate the Eighth Amendment.[28] Under petitioner's theory in Herrera, even if the proceedings that had resulted in his conviction and sentence were entirely fair and error free, his innocence would render his execution a "constitutionally intolerable event." Id., at 419 (O'Connor, J., concurring).
Schlup's claim of innocence, on the other hand, isprocedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, see Strickland v. Washington, 466 U. S. 668 (1984), and the withholding of evidence by the prosecution, see Brady v. Maryland, 373 U. S. 83 (1963), denied him the full panoply of protections afforded to criminal defendants by the Constitution. Schlup, however, faces procedural obstacles that he must overcome before a federal court may address the merits of those constitutional claims. Because Schlup has been unable to establish "cause and prejudice" sufficient to excuse his failure to present his evidence in support of his first federal petition, see McCleskey v. Zant, 499 U. S. 467, 493-494 (1991),[29] Schlup may obtain review of his constitutional claims only if he falls *315 within the "narrow class of cases . . . implicating a fundamental miscarriage of justice," id., at 494. Schlup's claim of innocence is offered only to bring him within this "narrow class of cases."
Schlup's claim thus differs in at least two important ways from that presented in Herrera. First, Schlup's claim of innocence does not by itself provide a basis for relief. Instead, his claim for reliefdepends critically on the validity of his Strickland and Brady claims.[30] Schlup's claim of innocence is thus "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera, 506 U. S., at 404; see also 11 F. 3d, at 740.[31]
More importantly, a court's assumptions about the validity of the proceedings that resulted in conviction are fundamentally different in Schlup's case than in Herrera's. In Herrera, petitioner's claim was evaluated on the assumption that the trial that resulted in his conviction had been error free. In such a case, when a petitioner has been "tried before a jury of his peers, with the fullpanoply of protections that our Constitution affords criminal defendants," 506 U. S., at 419 (O'Connor, J., concurring), it is appropriate to apply an *316 "`extraordinarily high' " standard of review, id., at 426 (O'Connor, J., concurring).[32]
Schlup, in contrast, accompanies his claim ofinnocence with an assertion of constitutional error at trial. For that reason, Schlup's conviction may not be entitled to the same degree of respect as one, such as Herrera's, that is the product of an error-free trial. Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim. However, if a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.
Consequently, Schlup's evidence of innocence need carry less of a burden. In Herrera (on the assumption that petitioner's claim was, in principle, legally well founded), the evidence of innocence would have had to be strong enough to make his execution "constitutionally intolerable" even if his conviction was the product of a fair trial. For Schlup, the evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.
Our rather full statement of the facts illustrates the foregoing distinction between a substantive Herrera claim and Schlup's procedural claim. Three items of evidence are particularly relevant: the affidavit of black inmates attesting to the innocence of a white defendant in a racially motivated killing; the affidavit of Green describing his prompt call for *317 assistance; and the affidavit of Lieutenant Faherty describing Schlup's unhurried walk to the dining room. If there were no question about the fairness of the criminal trial,a Herrera -type claim would have to fail unless the federal habeas court is itselfconvinced that those new facts unquestionably establish Schlup's innocence. On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup's guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error, Schlup's threshold showing of innocence would justify a review of the merits of the constitutional claims.
IV
As this Court has repeatedly noted, "[a]t common law, res judicata did not attach to a court's denial of habeas relief." McCleskey, 499 U. S., at 479. Instead, "`a renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge.' " Ibid. , quoting W. Church, Writ of Habeas Corpus § 386, p. 570 (2d ed. 1893).
The Court has explained the early tolerance of successive petitions, in part, by the fact that the writ originally performed only the narrow function of testing either the jurisdiction of the sentencing court or the legality of Executive detention. See McCleskey, 499 U. S., at 478; Wainwright v. Sykes, 433 U. S. 72, 78 (1977).[33] The scope of the writ later expanded beyond its original narrow purview to encompass *318 review of constitutional error that had occurred in the proceedings leading to conviction. See McCleskey, 499 U. S., at 478-479; Wainwright v. Sykes, 433 U. S., at 79. That broadening of the scope of the writ created the risk that repetitious filings by individual petitioners might adversely affect the administration of justice in the federal courts. Such filings also posed a threat to the finality of state-court judgments and to principles of comity and federalism. See, e. g., McCleskey, 499 U. S.,at 491; Murray v. Carrier, 477 U. S. 478, 487 (1986).
To alleviate the increasing burdens on the federal courts and to contain the threat to finality and comity, Congress attempted to fashion rules disfavoring claims raised in second and subsequent petitions. For example, in 1966, Congress amended 28 U. S. C. § 2244(b) "to introduce `a greater degree of finality of judgments in habeas corpus proceedings.' " Kuhlmann v. Wilson, 477 U. S., at 450, quoting S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966) (Senate Report); see also McCleskey, 499 U. S., at 486. Similarly, in 1976, Congress promulgated Rule 9(b) of the Rules Governing Habeas Corpus Proceedings in part to deal with the problem of repetitive filings.
These same concerns resulted in a number of recent decisions from this Court that delineate the circumstances under which a district court may consider claims raised in a second or subsequent habeas petition. In those decisions, the Court held that a habeas court may not ordinarily reach the merits of successive claims, Kuhlmann v. Wilson, 477 U. S. 436 (1986), or abusive claims, McCleskey, 499 U. S., at 493, absent a showing of cause and prejudice, see Wainwright v. Sykes, 433 U. S. 72 (1977).[34] The application of cause and *319 prejudice to successive and abusive claims conformed to this Court's treatment of procedurally defaulted claims. Carrier, 477 U. S. 478; see also McCleskey, 499 U. S., at 490-491 ("The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review"). See generally Sawyer, 505 U. S., at 338-340. The net result of this congressional and judicial action has been the adoption in habeas corpus of a "`qualified application of the doctrine of res judicata.' " McCleskey, 499 U. S., at 486, quoting Senate Report, at 2.[35]
At the same time, the Court has adhered to the principle that habeas corpus is, at its core, an equitable remedy. This Court has consistently relied on the equitable nature of habeas corpus to preclude application of strict rules of res judicata. Thus, for example, in Sanders v. United States, 373 U. S. 1 (1963), this Court held that a habeas court must adjudicate even a successive habeas claim when required to do so by the "ends of justice." Id. , at 15-17; see also McCleskey, 499 U. S., at 495. The Sanders Court applied this equitable exception even to petitions brought under 28 *320 U. S. C. § 2255, though the language of § 2255 contained no reference to an "ends of justice" inquiry. 373 U. S., at 12-15.
We firmly established the importance of the equitable inquiry required by the ends of justice in "a trio of 1986 decisions" handed down on the same day. Sawyer, 505 U. S., at 339 (referring to Kuhlmann v. Wilson , 477 U. S. 436, Murray v. Carrier, 477 U. S. 478, and Smith v. Murray, 477 U. S. 527). In Kuhlmann, seven Members of this Court squarely rejected the argument that in light of the 1966 amendments, "federal courts no longer must consider the `ends of justice' before dismissing a successive petition." 477 U. S., at 451 (plurality opinion); id. , at 468-471 (Brennan, J., dissenting); id. , at 476-477 (Stevens, J., dissenting); see also Sawyer, 505 U. S., at 339 (noting that in Kuhlmann, "[w]e held that despite the removal of [the reference to the ends of justice] from 28 U. S. C. § 2244(b) in 1966, the miscarriage of justice exception would allow successive claims to be heard"). Thus, while recognizing that successive petitions are generally precluded from review, Justice Powell's plurality opinion expressly noted that there are "limited circumstances under which the interests of the prisoner in relitigating constitutional claims held meritless on a prior petition may outweigh the countervailing interests served by according finality to the prior judgment." 477 U. S., at 452. Similarly, writing for the Court in Carrier, Justice O'Connor observed that the Court had adopted the cause and prejudice standard in part because of its confidence that that standard would provide adequate protection to "`victims of a fundamental miscarriage of justice,' " 477 U. S., at 495-496, quoting Engle v. Isaac, 456 U. S. 107, 135 (1982); however, Justice O'Connor also noted that the Court has candidly refused to "pretend that this will always be true," Carrier, 477 U. S., at 496. For that reason, "`[i]n appropriate cases,' the principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally *321 unjust incarceration.' " Id. , at 495, quoting Engle v. Isaac, 456 U. S., at 135; see also Smith v. Murray, 477 U. S., at 537. In subsequent cases, we have consistently reaffirmed the existence and importance of the exception for fundamental miscarriages of justice. See, e. g., Sawyer, 505 U. S., at 339-340; McCleskey, 499 U. S., at 494-495; Dugger v. Adams, 489 U. S. 401, 414 (1989) (Blackmun, J., dissenting).
To ensure that the fundamental miscarriage of justice exception would remain "rare" and would only be applied in the "extraordinary case," while at the same time ensuring that the exception would extend relief to those who were truly deserving, this Court explicitly tied the miscarriage of justice exception to the petitioner's innocence. In Kuhlmann, for example, Justice Powell concluded that a prisoner retains an overriding "interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated. That interest does not extend, however, to prisoners whose guilt is conceded or plain." 477 U. S., at 452. Similarly, Justice O'Connor wrote in Carrier that "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." 477 U. S., at 496; see also Smith v. Murray, 477 U. S., at 537, quoting Carrier, 477 U. S., at 496.
The general rule announced in Kuhlmann, Carrier, and Smith, and confirmed in this Court's more recent decisions, rests in part on the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.[36] Judge Friendly's observation a quarter of a *322 century ago that "the one thing almost never suggested on collateral attack is that the prisoner was innocent of the crime" remains largely true today.[37] Explicitly tying the miscarriage of justice exception to innocence thus accommodates both the systemic interests in finality, comity, and conservation of judicial resources, and the overriding individual interest in doing justice in the "extraordinary case," Carrier, 477 U. S., at 496.
In addition to linking miscarriages of justice to innocence, Carrier and Kuhlmann also expressed the standard of proof that should govern consideration of those claims. In Carrier, for example, the Court stated that the petitioner must show that the constitutional error "probably" resulted in the conviction of one who was actually innocent. The Kuhlmann plurality, though using the term "colorable claim of factual innocence," elaborated that the petitioner would be required to establish, by a "`fair probability,' " that "`the trier of the facts would have entertained a reasonable doubt of his guilt.' " 477 U. S., at 454, 455, n. 17.
In the years following Kuhlmann and Carrier, we did not expound further on the actual innocence exception. In those few cases that mentioned the standard, the Court continued to rely on the formulations set forth in Kuhlmann and Carrier. In McCleskey, for example, while establishing that cause and prejudice would generally define the situations in which a federal court might entertain an abusive petition, the Court recognized an exception for cases in which the constitutional violation "probably has caused the conviction of one innocent of the crime." 499 U. S., at 494, citing Carrier, 477 U. S., at 485.