Everyone agrees that Richard Lee doesn't show enough evidence of "actual innocence" to justify extending the limitations period for filing a federal habeas claim. But everyone -- or, more accurately, nearly everyone -- on the eleven member en banc panel agrees that if he had shown enough such evidence, that would extend the limitations period. Thus reversing the panel, which held that even if he was actually innocent, the limitations period would bar relief.
Chief Judge Kozinski's the odd person out. He concurs, saying that we should wait until someone's maybe innocent to decide the question.
Proving that the guy doesn't mind being alone.
Seems to me that we routinely decide legal questions even when the facts might not justify relief. Even in the old days. Marbury comes to mind.
