632
Scalia, J., dissenting
Second, the Court has given as one of its justifications for the super-generous miscarriage-of-justice exception to inexcusable default, "the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare." Schlup, supra, at 321. That may be true enough of petitions challenging jury convictions; it assuredly will not be true of petitions challenging the "voluntariness" of guilty pleas. I put "voluntariness" in quotation marks, because we are not dealing here with only coerced confessions, which may indeed be rare enough. The present case is here because, in Henderson v. Morgan, 426 U. S. 637, 644- 646 (1976), this Court held that where neither the indictment, defense counsel, nor the trial court explained to the defendant that intent to kill was an element of second-degree murder, his plea to that offense was "involuntary." A plea, the Court explained, can "not be voluntary in the sense that it constitute[s] an intelligent admission that he committed the offense unless the defendant receive[s] 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' " Id., at 645, quoting Smith v. O'Grady, 312 U. S. 329, 334 (1941). Of course the word "voluntary" had never been used (by precise speakers, at least) in that sense—in the sense of "intelligent"—and what the Henderson line of cases did was, by sleight-of-tongue, to obliterate the distinction between involuntary confessions and misinformed or even uninformed confessions. Once all those categories have been lumped toan unloaded Ruger .357 caliber revolver, serial number 151-36099. The defendant denies knowledge of these guns." App. 8.
Of course "knowingly used" in this statement presumably means "knowingly used" in the erroneous sense that prompts this litigation. And that will almost always be the situation where the "involuntariness" of the plea is a consequence of subsequently clarified uncertainty in the law: The factual basis will not include a fact which, by hypothesis, the court and the parties think irrelevant.
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