STEVENS, J., dissenting to a system that ensures fairness and reliability by subjecting the prosecution's case to meaningful adversarial testing. III Changes in the law are characteristic of constitutional adjudication. Prior to 1985, most of those changes were in the direction of increasing the protection afforded an individual accused of crime. To vindicate the legitimate reliance interests of state law enforcement authorities, however, and in recognition of the state interest in preserving the outcome of trials adhering to contemporaneous standards, the Court often refused to apply its new rules retroactively. In Teague v. Lane, 489 U. S. 288, 310 (1989), the Court gave full expression to its general policy of allowing States "to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards," holding that the claims of federal habeas petitioners will, in all but exceptional cases, be judged under the standards prevailing at the time of trial.10 Since 1985, relevant changes in the law often have been in a different direction, affording less rather than more protec 9 See, e. g., Stovall v. Denno, 388 U. S. 293, 300 (1967) ("factors of reliance and burden on the administration of justice" mandate against retroactive application of United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), establishing right to counsel at pretrial identification); Johnson v. New Jersey, 384 U. S. 719 (1966) (declining to apply Miranda v. Arizona, 384 U. S. 436 (1966), retroactively); Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966) (Griffin v. California, 380 U.S. 609 (1965), prohibiting adverse comment on a defendant's silence, does not apply retroactively). 10 See also Engle v. Isaac, 456 U. S. 107, 128-129, n. 33 (1982) (discussing "frustration" of state courts when they "faithfully apply existing constitutional law" only to have change in constitutional standards applied retroactively). STEVENS, J., dissenting tion to individual defendants.11 An evenhanded approach to retroactivity would seem to require that we continue to evaluate defendants' claims under the law as it stood at the time of trial. If, under Teague, a defendant may not take advantage of subsequent changes in the law when they are favorable to him, then there is no self-evident reason why a State should be able to take advantage of subsequent changes in the law when they are adverse to his interests. The Court, however, takes a directly contrary approach here. Today's decision rests critically on the proposition that respondent's ineffective-assistance claim is to be judged under the law as it exists today, rather than the law as it existed at the time of trial and sentencing. Ante, at 372. In other words, respondent must make his case under Perry v. Lockhart, 871 F. 2d 1384 (CA8), cert. denied, 493 U. S. 959 (1989), decided four years after his sentencing; unlike the State, he is not entitled to rely on "then-existing constitutional standards," Teague, 489 U. S., at 310, which rendered him ineligible for the death penalty at the time that sentence was imposed. I have already explained why the Court's reliance on hindsight is incompatible with our right to counsel jurisprudence. It is also, in my judgment, inconsistent with case law that insists on contemporaneous constitutional standards as the benchmark against which defendants' claims are to be measured. A rule that generally precludes defendants from taking advantage of postconviction changes in the law, but allows the State to do so, cannot be reconciled with this 11 See, e. g., Payne v. Tennessee, 501 U. S. 808 (1991) (Eighth Amendment does not preclude use of victim impact evidence against capital defendant at sentencing; overruling Booth v. Maryland, 482 U. S. 496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989)); Arizona v. Fulminante, 499 U. S. 279 (1991) (harmless-error rule applicable to admission of involuntary confessions); Duckworth v. Eagan, 492 U. S. 195 (1989) (Miranda warnings adequate despite suggestion that lawyer will not be appointed until after interrogation); Florida v. Riley, 488 U. S. 445 (1989) (police may search greenhouse from helicopter at altitude of 400 feet without warrant). STEVENS, J., dissenting Court's duty to administer justice impartially. Elementary fairness dictates that the Court should evaluate respondent's ineffective-assistance claim under the law as it stood when he was convicted and sentenced-under Collins, and also under Strickland as it was understood until today. As I see it, the only windfall at issue here is the one conferred upon the State by the Court's decision. Had respondent's counsel rendered effective assistance, the State would have been required to justify respondent's execution under a legal regime that included Collins. It is highly unlikely that it could have met this burden in the Arkansas courts, see supra, at 384-385, and it almost certainly could not have done so in the federal courts on habeas review. Now, however, the State is permitted to exploit the ineffective assistance of respondent's counsel, and the lapse in time it provided, by capitalizing on postsentencing changes in the law to justify an execution. Because this windfall is one the Sixth Amendment prevents us from bestowing, I respectfully dissent. Syllabus HERRERA v. COLLINS, DIRECTOR, TEXAS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 91-7328. Argued October 7, 1992-Decided January 25, 1993 On the basis of proof which included two eyewitness identifications, numerous pieces of circumstantial evidence, and petitioner Herrera's handwritten letter impliedly admitting his guilt, Herrera was convicted of the capital murder of Police Officer Carrisalez and sentenced to death in January 1982. After pleading guilty, in July 1982, to the related capital murder of Officer Rucker, Herrera unsuccessfully challenged the Carrisalez conviction on direct appeal and in two collateral proceedings in the Texas state courts, and in a federal habeas petition. Ten years after his conviction, he urged in a second federal habeas proceeding that newly discovered evidence demonstrated that he was "actually innocent" of the murders of Carrisalez and Rucker, and that the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's due process guarantee therefore forbid his execution. He supported this claim with affidavits tending to show that his now-dead brother had committed the murders. The District Court, inter alia, granted his request for a stay of execution so that he could present his actual innocence claim and the supporting affidavits in state court. In vacating the stay, the Court of Appeals held that the claim was not cognizable on federal habeas absent an accompanying federal constitutional violation. Held: Herrera's claim of actual innocence does not entitle him to federal habeas relief. Pp. 398-419. (a) Herrera's constitutional claim for relief based upon his newly discovered evidence of innocence must be evaluated in light of the previous 10 years of proceedings in this case. In criminal cases, the trial is the paramount event for determining the defendant's guilt or innocence. Where, as here, a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the constitutional presumption of innocence disappears. Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution. See, e. g., Moore v. Dempsey, 261 U. S. 86, 87-88. Thus, claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief Syllabus absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings. See Townsend v. Sain, 372 U. S. 293, 317. The rule that a petitioner subject to defenses of abusive or successive use of the habeas writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence, see, e. g., Sawyer v. Whitley, 505 U. S. 333, is inapplicable in this case. For Herrera does not seek relief from a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because new evidence shows that his conviction is factually incorrect. To allow a federal court to grant him typical habeas reliefa conditional order releasing him unless the State elects to retry him or vacating his death sentence-would in effect require a new trial 10 years after the first trial, not because of any constitutional violation at the first trial, but simply because of a belief that in light of his new found evidence a jury might find him not guilty at a second trial. It is far from clear that this would produce a more reliable determination of guilt or innocence, since the passage of time only diminishes the reliability of criminal adjudications. Jackson v. Virginia, 443 U. S. 307, Ford v. Wainwright, 477 U. S. 399, and Johnson v. Mississippi, 486 U. S. 578, distinguished. Pp. 398-407. (b) Herrera's contention that the Fourteenth Amendment's due process guarantee supports his claim that his showing of innocence entitles him to a new trial, or at least to a vacation of his death sentence, is unpersuasive. Because state legislative judgments are entitled to substantial deference in the criminal procedure area, criminal process will be found lacking only where it offends some principle of justice so rooted in tradition and conscience as to be ranked as fundamental. See, e. g., Patterson v. New York, 432 U. S. 197, 202. It cannot be said that the refusal of Texas-which requires a new trial motion based on newly discovered evidence to be made within 30 days of imposition or suspension of sentence-to entertain Herrera's new evidence eight years after his conviction transgresses a principle of fundamental fairness, in light of the Constitution's silence on the subject of new trials, the historical availability of new trials based on newly discovered evidence, this Court's amendments to Federal Rule of Criminal Procedure 33 to impose a time limit for filing new trial motions based on newly discovered evidence, and the contemporary practice in the States, only nine of which have no time limits for the filing of such motions. Pp. 407-412. (c) Herrera is not left without a forum to raise his actual innocence claim. He may file a request for clemency under Texas law, which contains specific guidelines for pardons on the ground of innocence. History shows that executive clemency is the traditional "fail safe" remedy |