Marvin Edwin Johnson v. Richard L. Dugger, Secretary, Florida Department of Corrections

I. I DISSENT

The majority’s decision in this case departs sharply from Supreme Court precedent that requires a petitioner to make a colorable showing of “actual innocence” in order to obtain federal habeas review after an unexcused procedural default. According to today’s decision, a petitioner need only make a colorable showing that a constitutional error probably prejudiced his chances for a more favorable sentence. Thus, so long as he can demonstrate a “reasonable probability” that a constitutional error affected the outcome of his sentencing, a petitioner may ignore state procedural law…