314
Opinion of the Court
claim of actual innocence asserted in Herrera v. Collins, 506 U. S. 390 (1993). In Herrera, the petitioner advanced his claim of innocence to support a novel substantive constitutional claim, namely, that the execution of an innocent person would violate the Eighth Amendment.28 Under petitioner's theory in Herrera, even if the proceedings that had resulted in his conviction and sentence were entirely fair and error free, his innocence would render his execution a "constitutionally intolerable event." Id., at 419 (O'Connor, J., concurring).
Schlup's claim of innocence, on the other hand, is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, see Strickland v. Washington, 466 U. S. 668 (1984), and the withholding of evidence by the prosecution, see Brady v. Maryland, 373 U. S. 83 (1963), denied him the full panoply of protections afforded to criminal defendants by the Constitution. Schlup, however, faces procedural obstacles that he must overcome before a federal court may address the merits of those constitutional claims. Because Schlup has been unable to establish "cause and prejudice" sufficient to excuse his failure to present his evidence in support of his first federal petition, see McCleskey v. Zant, 499 U. S. 467, 493-494 (1991),29 Schlup may obtain review of his constitutional claims only if he falls
28 In Herrera, we assumed for the sake of argument that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." 506 U. S., at 417.
29 Schlup argued in the District Court that the lack of diligence of his appointed postconviction counsel, coupled with problems created by the State, established cause and prejudice. See App. 38-43 (state postconviction proceedings); id., at 43-45 (proceedings on first federal habeas). That argument was rejected by the District Court and the Court of Appeals, and petitioner does not renew it in this Court.
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