What is the current state of the law on actual innocence?

truly persuasive" demonstration of actual innocence would render the execution of a defendant unconstitutional, but that "the threshold showing for such an assumed right would necessarily be extraordinarily high." Id. at 417. As we have noted, however, a majority of the Justices in Herrera would have supported a claim of free-standing actual innocence. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997), cert. denied, 523 U.S. 1133 (1998). We also held that "a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id.