CA1: what isn’t actual innocence

Walker v. Russo, No. 07-1650.  This is a habeas appeal.  “The only question at trial [at state court] was whether the defendant was guilty of first degree murder or a lesser offense; that depended on whether the murder was premeditated.”  The only issue in this appeal of a habeas denial is an ineffective assistance argument regarding whether his lawyer failed to elicit certain fact testimony, and that he is actually innocent.  (And therefore can be excused from the cause and prejudice procedural default exception.)  The First concludes that his theory, “If this evidence were added into the mix, Walker's theory goes, a jury would have acquitted because if Walker was leaving the premises he could not have planned to stab Davis and so the murder was not premeditated.” is too much of a leap to make the “actual innocence” standard.

So, ironically, he can’t demonstrate “actual innocence” and it doesn’t’ matter whether he is “actually guilty.”  The First says it isn’t discussing House v. Bell, 126 S. Ct. 2064 (2006).