On March 28, 2011, the Supreme Court declined to review the lower court opinion. At the same time, it denied petitions for writs of certiorari and habeas corpus, leaving for another day the underlying question. The dissenting member of the panel argued that the application to permit a second habeas petition should be granted when a death row inmate makes a viable claim of actual innocence. After Davis filed his petition with the Supreme Court, the Court transferred his petition for habeas relief to the United States District Court for the Southern District of Georgia with instructions to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence." Justice Stevens suggested three avenues to relief in response to Justice Scalia's dissenting quip that the transfer sends the district court on a "fool's errand"—it has been instructed to probe the evidence of Davis's innocence but must conclude that habeas relief is barred in another event. The District Court may conclude that §2254(d)(1) does not apply, or does not apply with the same rigidity, to as original habeas petition such as this. In re Davis, 130 S.Ct. Original Habeas Petitions in the Supreme Court

The Judiciary Act of 1789, which established the federal court system, declared that "all the before mentioned courts of the United States [, the Supreme Court, circuit courts, and district courts] shall have power to issue writs of ... habeas corpus.... And that either of the justices of the supreme court, as well as judges of the district courts shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment." Herrera, convicted of murder and sentenced to death 10 years earlier, sought habeas relief based on newly discovered evidence which he asserted established his innocence. Faced with a claim of actual innocence unsupported by any claim of constitutional defect, the Court declared:
We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. The case does indicate, however, that the level of persuasion required of a freestanding innocence claim is higher than that required of an innocence-plus-constitutional-defect claim—for House was found to have met the innocence-plus standard, but not the freestanding innocence standard. Davis

To succeed, Davis's petition may have to survive several inquiries. Fifth, if actual innocence is a basis for habeas relief, how persuasive must be the proof of innocence to warrant relief? Sixth, does the evidence in Davis meet this standard? Only two thought otherwise. The section is built upon an earlier Supreme Court second or successive petition rule that used a standard of probability rather than clear and convincing evidence ("The Carrier standard requires the habeas petitioner to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent. Regardless of any standard established, it remains to be seen whether Davis—unlike Herrera or House before him—will be able to assemble and present evidence sufficient to satisfy it. Davis after Transfer

The District Court conducted a hearing and an extensive examination of the record. This he could not do. On March 28, 2011, it did so without written opinion.
In re Davis presented the Supreme Court with another opportunity to decide whether a state death row inmate, who on the basis of newly available evidence establishes that he is actually innocent, is entitled to habeas corpus relief to prevent his execution. Under existing law, newly discovered evidence of innocence may permit a federal court to consider an inmate's claim (otherwise barred) that his conviction or sentence was the product of constitutional error (constitutional error plus innocence). The Court has never held that a freestanding claim of innocence may alone suffice. On two occasions, in Herrera and in House, however, it has said that, assuming for argument the right to consideration of a freestanding claim, the evidence on the record in the cases before it did not satisfy the level of persuasion necessary for such relief.
Davis, convicted and sentenced to death for the murder of a moonlighting police officer, had to overcome several obstacles before habeas relief could be granted. First, the Court would have to recognize the right to relief based solely on a claim of innocence. Then, it would have to identify the level of persuasion required for relief on that basis (i.e., how compelling must proof of innocence be?). Then, the evidence (new and old) would have to satisfy that standard. Before those issues could be reached, however, Davis had to overcome the statutory bar on claims previously rejected in state court (second or successive petition bar). In an effort to do so, Davis filed his habeas petition with the Supreme Court rather than with a lower federal court.
The Court transferred Davis's "original" petition to a federal district court with instructions to receive evidence and make findings of fact relating to Davis's claim of innocence. Justice Scalia, in dissent, described as a fool's errand sending the district court on search for evidence of innocence when the statutory bar would preclude relief regardless of the result of the search. Justice Stevens disagreed in a separate concurring opinion. He argued that the district court might conclude either that the statutory bar does not apply to original petitions; or does not apply in the same manner; or does not apply because the bar is constitutionally invalid in cases of actual innocence.
The District Court conducted an extensive examination of the evidence and concluded that (1) the Eighth Amendment precludes execution of the actually innocent; (2) the clear and convincing evidence standard is the appropriate standard by which to judge such claims; and (3) Davis failed to satisfy the standard. Both the District and Circuit Court concluded any appeal must be to the Supreme Court.
On March 28, 2011, the Supreme Court declined to review the lower court opinion and denied petitions for writs of certiorari and habeas corpus, leaving for another day the broader issues raised in Davis.
Related CRS Reports include CRS Report R41011, Habeas Corpus Legislation in the 111th Congress (includes a discussion of "actual innocent" proposals); CRS Report RL33391, Federal Habeas Corpus: A Brief Legal Overview; and CRS Report RS22432, Federal Habeas Corpus: An Abridged Sketch.