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The first DNA exoneree in this country was a man with a sub-70 IQ who pleaded guilty to avoid the death penalty, and a total of 139 out of 315 (44.1%) DNA and non-DNA exonerees in 2015 and 2016 had been convicted after guilty pleas. Nonetheless, a number of states have pleading defendant prohibitions in their postconviction statutes that preclude defendants who pleaded guilty from (1) seeking DNA testing; and/or (2) presenting freestanding claims of actual innocence based on non-DNA evidence. Existing Constitutional challenges to these statutes have been largely foreclosed by the Supreme Court’s opinion in District Attorney’s Office for the Third Judicial District v. Osborne. This article advances a new theory for a right to prove innocence after pleading guilty. Through a series of cases, the Supreme Court has created a right known as the “right to access the courts.” A state violates this right to access the courts by creating a right to appellate review but precluding certain classes of defendants from having the actual or constructive ability to exercise that right. Most notably, in Halbert v. Michigan, the Supreme Court found that Michigan violated the right to access the courts by providing the right to appellate counsel to defendants found guilty after trials but withholding that right from pleading defendants. This article contends that similar reasoning requires recognition of a right to access the courts for defendants who plead guilty and later seek to use DNA or non-DNA evidence to prove their actual innocence.

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