Before new evidence of his innocence was discovered, Davis brought an unsuccessful direct appeal in Georgia's state courts and an unsuccessful habeas petition in federal court. Later, on the strength of the new evidence (including recantations by several trial witnesses and new testimony from three witnesses who heard another man confess to the crime), Davis tried to obtain a new trial from Georgia's state courts. The Georgia Supreme Court decided that Davis was not entitled to an evidentiary hearing to prove his actual innocence. Last year, the U.S. Supreme Court denied Davis' petition to review that decision.

As required by the noxious AEDPA, Davis asked the Court of Appeals for the Eleventh Circuit for permission to file a second habeas petition alleging that the new evidence, unavailable at the time his first habeas petition was filed, established his actual innocence. The Eleventh Circuit stayed Davis' execution while it considered that request, but lifted the stay after deciding (pdf) by a 2-1 vote that Davis did not meet the AEDPA's strict requirements for commencing a second habeas proceeding -- requirements that, as a practical matter, are nearly impossible to satisfy. The dissenting judge objected that the "AEDPA cannot possibly be applied when to do so