Cite as: 523 U. S. 614 (1998)
Scalia, J., dissenting
slaughter because he had no intent to kill. In such a case, it is excusing the petitioner from his procedural default, not holding him to it, that would be the miscarriage of justice.
The Court evidently seeks to avoid this absurd consequence by prescribing that the defendant's "showing of actual innocence must also extend" to any charge the Government has "forgone," ante, at 624. This is not even a fully satisfactory solution in theory, since it assumes that the "for-gone" charge is identifiable. If, as is often the case, the bargaining occurred before the charge was filed ("charge-bargaining" instead of "plea-bargaining"), it will almost surely not be identifiable. And of course in practical terms, the solution is no solution at all. To avoid the patent inequity, the Government will be called upon to refute, without any factual record to rely upon, not only the defendant's testimony of his innocence on the charge of conviction, but his testimony of innocence on the "forgone" charge as well—and as to the second, even the finding of "factual basis" required in federal courts, see n., supra, will not exist. But even if rebuttal evidence existed, it is a bizarre waste of judicial resources to require minitrials on charges made in dusty indictments (or indeed, if they could be identified, on charges never made), just to determine whether the defendant can litigate a procedurally defaulted challenge to a guilty plea on a different offense. Rube Goldberg would envy the scheme the Court has created.
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It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of "actual innocence" will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant's own fault. But of course we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could. The "actual innocence" ex-
635
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