Ex Parte Dowden
No. WR-82, 103-01
Case Summary written by Abigail Drake, Staff Member.
JUDGE KEASLER delivered the opinion of the court, in which JUDGES MEYERS, HERVEY, RICHARDSON, and NEWELL joined. JUDGE JOHNSON concurred.
Convicted and sentenced for online solicitation of a minor, Christopher Dowden filed applications for a writ of habeas corpus. Fournier and Dowden presented claims of actual innocence after the court recently held the statute under which the court convicted him to be unconstitutionally broad. The applicant asserted that because the statute was unconstitutional, he was “actually innocent.”
Issue: Does the unconstitutionality of the statute, as decided in Ex parte Lo, entitle the applicants to an actual innocence claim?
The court looked to the history of the actual innocence theory, which showed that such claims prevail if the applicant can show that no rational trier of fact could find him guilty beyond a reasonable doubt in light of newly introduced evidence. Furthermore, the applicant must show by clear and convincing evidence that no reasonable juror would have convicted him with the new evidence.
Additionally, the court looked to Ex parte Rich, in which the court stated that an illegal sentence does not give rise to an actual innocence claim. Moreover, the court reiterated that actual innocence claims shall only succeed when the accused did not, in fact, commit the charged offense or any lesser-included offense.
Here, the applicant did not provided any additional evidence under which a reasonable juror would refuse to convict beyond a reasonable doubt. In fact, the applicant pleaded guilty of the charged crime. The sole basis for his actual innocence claim rested on the unconstitutionality of the statute. Therefore, while the applicant was entitled to relief due to the unconstitutionality of the statute, his claim of actual innocence failed.
Finally, the majority opinion in Ex parte Lo should apply retroactively to Dowden and those convicted of online solicitation of a minor under the now-unconstitutional statute.
JUDGE ALCALA filed a concurring opinion.
There was no new evidence that changed the facts regarding the act that the applicant committed. There was only a change in the law. Although a defendant who is convicted under an unconstitutional statute is actually innocent, “legal innocence” is different from “factual innocence,” the latter of which is required to meet the standard of actual innocence. Moreover, the majority was correct in retroactively applying the decision in Lo because, without the statute, there was no authority under which courts could confine Dowden.
JUDGE YEARY filed a dissenting opinion, in which PRESIDING JUDGE KELLER joined.
The majority was correct in deciding that Dowden’s actual innocence claim failed. However, there should be no retroactive effect in Ex parte Lo because it is unclear if the unconstitutional breadth of the statute covered the conduct Dowden engaged in, or if his conduct was still illegal under the constitutional portion. The marginal benefit of potentially wrongly-incarcerated citizens is not worth the damage that releasing correctly-convicted citizens back onto the streets will do.