Cite as: 506 U. S. 390 (1993)
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 relief— a 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
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