Cite as: 523 U. S. 614 (1998)
Opinion of the Court
§ 924(c)(1)), cert. denied, 503 U. S. 923 (1992).2 Petitioner also contends that his default should be excused because, "before Bailey, any attempt to attack [his] guilty plea would have been futile." Brief for Petitioner 35. This argument, too, is unavailing. As we clearly stated in Engle v. Isaac, 456 U. S. 107 (1982), "futility cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.' " Id., at 130, n. 35. Therefore, petitioner is unable to establish cause for his default.
Petitioner's claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy "has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, supra, at 496. To establish actual innocence, petitioner must demonstrate that, " 'in light of all the evidence,' " "it is more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513 U. S. 298, 327-328 (1995) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). The District Court failed to address petitioner's actual innocence, perhaps because petitioner failed to raise it initially in his § 2255 motion. However, the Government does not contend that petitioner waived this claim by failing to raise it below. Accordingly, we believe it appropriate to remand this case to permit petitioner to attempt to make a showing of actual innocence.
It is important to note in this regard that "actual innocence" means factual innocence, not mere legal insufficiency.
2 Even were we to conclude that petitioner's counsel was unaware at the time that petitioner's plea colloquy was constitutionally deficient, "[w]here the basis of a . . . claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default." Engle v. Isaac, 456 U. S. 107, 134 (1982).
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