*1 NETHERLAND, WARDEN GRAY 20, 1996 June 15, 1996 April Argued Decided 95-6510. No. *3 O’Con- Court, in which opinion J., delivered Rehnquist, C. J., a Stevens, filed JJ., Thomas, joined. Kennedy, and alia, nor, Sc opinion, dissenting Ginsburg, J., filed 171. p. post, dissenting opinion, p. Breyer, JJ., post, joined, Souter, and Stevens, S. U. Court, of the by appointment Olive, Evan Mark on him With petitioner. for the cause argued John Turner, Jr., Paul G. Lee, R. Donald were briefs Blume. H. Vir Attorney General Jr., Assistant McLees, H. John himWith respondent. cause argued ginia, General, and Attorney III, Gilmore S. James were brief Attorney General.* Deputy Anderson, Chief E. David Founda- Legal Justice the Criminal a brief filed Scheidegger S. *Kent affirmance. urging curiae amicus tion as delivered Chief opinion Justice Rehnquist of the Court. Petitioner, convicted capital complains murder, that his right to due of law under the Fourteenth Amend- ment was violated because he given was not adequate notice of some of the evidence the Commonwealth intended to use against him at the penalty hearing of his trial. We hold that this claim would necessitate a “new rule,” and that therefore it does provide a basis on which may seek federal habeas relief.
I A Richard McClelland was manager of a department
store, Murphy’s Mart, in Virginia. Portsmouth, May On 1985, at approximately p.m., 9:30 petitioner and Melvin Tucker, a friend, both under the influence of parked cocaine, in the parking lot of the Murphy’sMart and watched McClel- land and a store security guard inside. Shortly before mid night, McClelland and guard came out of the store and separate left in automobiles. With Tucker in the passenger petitioner seat, followed pulled McClelland, in front of his car at stop sign, threatened him with a .32-caliber revolver, *4 ordered him petitioner’s into car, and struck him. Peti tioner and Tucker took McClelland’swallet and threatened to harm his family if he did not cooperate. Gray v. Com monwealth, 233 Va. 313, 340-341, 356 S. E. 2d 157, 172, cert. denied, 484 U. S. 873
Petitioner drove the car back to the Murphy’sMart, where he forced gunpoint McClellandat to reopen the They store. filled gym three bags with money, totaling between $12,000 and $13,000. Petitioner drove McClelland and Tucker to a service bought station, gasoline for his car and for gas a can in the car’s trunk, proceeded and to a remote side road. He took McClelland 15to 20 feet behind the car and ordered him to lie down. While begged McClelland petitioner not to not would he him assured petitioner him, shoot
hurt fired petitioner McClelland, assured Having thus harmed. rapid succession. in head of his back the into shots pistol six 172-173. 2d, at E.S. 341-342, 356 Va., at peti- road, side body on dead Leaving McClelland’s they where intersection returned Tucker and tioner to de- wanted he telling Tucker Petitioner, him. seized had with interior its doused evidence, as car stroy McClelland’s E.S. 341-342, 356 Id., at match. awith it lit and gasoline 173. 2d, at in indicted arrested later were Tucker Petitioner counts, several Suffolk city of Circuit the including petitioner that Having evidence murder. capital get” going to “he killing that before announced had sales a job as her from wife having fired for McClelland told had petitioner Mart, Murphy’s woman it, performed had he killing that after witnesses other In Tucker. with bargain plea into entered prosecutor capi instead murder first-degree being tried return about trial petitioner’s testify at would Tucker murder, tal identify petitioner killing and up to leading events 167. 2d, E.S. 331, 356 Id., man.” “trigger actual as
B began. trial Monday, December On order court trial moved Petitioner’s introduce planned it evidence to disclose prosecution “in acknowledged phase. intro- intend do we guilty found [petitioner] event people other made has he statements duce has he of which committed has crimes other about prosecu- particular, In Record convicted.” a noto- admitted petitioner show intended tion to Suf- adjacent city Chesapeake, murder double rious *5 Shanta, daughter, 3-year-old her Lisa folk. killed. McClelland before months five murdered petitioner’s told counsel in court that the only evidence he would introduce would be by statements peti- tioner to Tucker or fellow inmates that he committed these murders. Id., at 11. On Thursday, December 5, 1985, the jury peti convicted tioner on all counts. That evening, prosecution in
formed
counsel that the Commonwealth would
introduce
beyond
evidence,
petitioner’s own admissions,
linking petitioner to the Sorrell murders. The additional
evidence included photographs of the crime scene and testi
mony by
police
detective who investigated the murders
by
the state medical
performed
examiner who
autopsies
on the Sorrells’ bodies. The testimony was meant to show
that the manner in which Lisa and Shanta Sorrell had been
killed resembled the manner in which McClellandwas killed.
The next morning, petitioner’s counsel made two motions
“to have excluded from evidence during [the] penalty trial
any evidence pertaining
any
.
felony
. .
for which the
defendant
yet
has not
been charged.” 18id., at 776. Coun
argued
sel
that the additional evidence
scope
exceeded the
unadjudicated-crime
evidence admissible for sentencing
Virginia
under
law,
“[i]n
because
essence,
[the
what
prosecu
is]
tor
doing
trying [the
Sorrell] case in minds
jurors.”
Id., at
(citing
Watkins v. Commonwealth, 229
Va. 469, 331 S. E.
2d 422
cert. denied,
158
body
Lisa’s
he found
that
testified
murders,
Sorrell
gated the
Shan-
and
automobile
burned
partially
aof
seat
front
medical
Presswalla, the
Faruk
Dr.
trunk.
body
ta’s
testi-
bodies,
autopsies on
performed
had
who
examiner
from
shot
head,
to the
bullets
six
killed
was
Lisa
fied
2d, at
E.S.
345, 356
supra, at
Gray,
gun.
a .32-caliber
Presswalla,
Dr.
cross-examine
not
did
Petitioner’s
suggest
Slezak
Officer
only cross-examined
and
murder,
“copycat”
a
may
been
have
murder
McClelland’s
793, 802.1
Record
18
perpetrator.
by a different
committed
for McClelland’s
sentence
petitioner’s
jury fixed
The
judgment
entered
trial court
The
death.
murder
sentenced
petitioner and
against
charges
all the
for
verdicts
affirmed, 233
Supreme Court
Virginia
The
death.
him
Gray v.
certiorari,
denied
and we
157,
2dE.S.
356
313,
Va.
Court
(1987).
Circuit
Suffolk
The
873
U.
484
S.
Virginia,
cor-
of habeas
for writ
petition
state
petitioner’s
dismissed
dismissal,
affirmed
Supreme Court
Virginia
The
pus.
949
S.U.
(1991).
C corpus from a writ sought then Petitioner Vir- District Eastern for the District States United argued, inter murders, to the respect ginia. With any of these convicted “never he had alia, crimes,” these awaiting trial he was nor crimes to use intentions its disclose “did Commonwealth 1 as evidence testimony introduced prosecutor The peti evidence into introduced also dangerousness. future of9 convictions, least felony 18 record, included which criminal tioner’s malicious robbery armed violence, including for crimes were restaurant’s locked that he revealed record Petitioner’s wounding. restaurant, threatened robbing while freezer ain food employees Commonwealth, Gray McClelland. than other persons of two the lives 873 denied, U. S. 179, 157, cert. E. 2d S. Va. Sorrell murders as against [him] until such a late date that it impossible [his] defense counsel rea- sonably to prepare or against defend such evidence at trial,” “ and that Tucker ‘sold’his testimony to the Commonwealth *7 for . . . less than a life sentence.” 1 Appendix Joint (CA4), (hereinafter No. 94-4009 pp. A.). 32-33 J.
The Commonwealth moved to dismiss the petition. To clarify arguments its against petitioner’s Sorrell murder claim, it petitioner’s characterized allegations sepa- as seven rate subclaims. The first subclaim asserted petitioner that given was “inadequate notice of the evidence which the Com- monwealth intended to permit introduce to him to defend against it,” and the relying third, on Brady Maryland, U. S. 83 “[t]he asserted that Commonwealth failed to disclose evidence tending prove that someone else had committed the Sorrell murders.”2 Respondent’s Brief in Support of Motion to (ED Dismiss in No. Va.), 3:91CV693 p. 2. According to the Commonwealth, the notice-of- evidence subclaim was meritless and could not be the basis for relief in federal corpus habeas proceedings because it sought the application retroactive of a new rule of consti- tutional Id., law. at 18-19, 19-20. The Commonwealth alleged that Brady subclaim had presented the state courts on appeal direct or in state corpus habeas proceedings, and was thus procedurally barred under Va. §8.01-654(B)(2) Code Ann. Respondent’s Brief in Support of Motion to supra, Dismiss, at 19.
Initially, the District Court dismissed the habeas petition. The adopted court the Commonwealth’s characterization of petitioner’s Sorrell claim. See 1 J. A. 193. The court held petitioner was not entitled to relief on the notice-of- evidence subclaim, because he no “has constitutional to notice of individual items of testimony which the Com-
2The other five subclaims are not relevant to our review. Id., phase.” to introduce intends wealth
mon Brady subclaim review declined court The 194. 194. A. 1 J. barred. procedurally it because amended Court District motion, petitioner’s Later, spe- claim within find judgment its admissibility the Sorrell about claim process due cific judgment, (In amending this Id., at evidence. murder unchanged as remained it announced court the remaining 251.) Id., at dismissed. it claims, claim, the Sorrell hearing on evidentiary holding an After a writ granted petitioner ordered District as an claim characterized court corpus. lawof due denied “was petitioner allegation Con- States United of the Amendment Fourteenth under fair provide failed Commonwealth because stitution *8 would murders concerning evidence notice Citing App. phase.” penalty his introduced be court 357-359 U. S. Florida, 430 Gardner petition- defect constitutional awas there determined and confronted “Petitioner hearing: phase er’s Press- Dr. Slezak testimony officer by the surprised [petitioner’s] “violated defect This App. 349. walla.” unreliable,” clearly hearing rendered notice fair day’s notice one than attorneys less had petitioner’s because client. their against used be evidence additional of the 349-350. Id., Cir Fourth to the arguing appealed, Commonwealth The give him relief habeas petitioner grant cuit violation law, constitutional federal rule a new benefit Circuit (1989). Fourth The S.U. Lane, 489 Teague v. petition rejected writ, granting judgment reversed claims, other several dismissal from cross-appeals er’s peti corpus directions with remanded 59, 67 3dF.58 Thompson, Gray v. dismissed. tion District Gardner, on distinguished court “was Gardner, unlike petitioner, because relied, not sentenced on the basis of any secret information.” 3d, F. at 64. The court thus concluded that notice-of-evidence claim “was not compelled by existing prec edent at the time his conviction became final,” and thus could not be considered in federal habeas proceedings under Teague. F. 3d, at 64.
The Commonwealth scheduled petitioner’s execution for
December 14, 1995. Petitioner
applied
stay
execu
tion and petitioned for a writ of certiorari
from this Court.
We granted his stay application on
December
1995. 516
U. S. 1034. On January 5, 1996, we granted certiorari,
lim
ited
the questions whether petitioner’s notice-of-evidence
claim stated a new rule and whether
the Commonwealth
violated petitioner’s due process rights under Brady by
withholding
him
exculpating
from responsibility
for the Sorrell murders.
We first address petitioner’s Brady claim. The District Court determined that “[t]his claim was not presented Supreme Court of Virginia direct nor in appeal state ha- beas corpus proceedings,” and that “the factual basis of the claim was available to [petitioner] at the time he litigated state habeas corpus petition,” and dismissed the claim on this basis. 1 J. A. 194. Petitioner does not contest these determinations in this Court.
Petitioner’s failure to raise his Brady claim in state court
*9
implicates the requirements
in habeas of exhaustion and pro
cedural default. Title 28
2254(b)
§
U. S. C.
bars the granting
of habeas corpus relief “unless it appears that the applicant
has exhausted the remedies available in the courts of the
State.” Because “[t]his requirement...
refers
only
reme
dies still available at the time of the federal petition,” Engle
Isaac,
v.
346, adequate and independent an provides to exhaustion rise thus sentence, conviction the for ground state-law claim, defaulted theof corpus review habeas federal prevents prejudice cause demonstrate can petitioner unless supra, Isaac, 298; at supra, Lane, Teague v. default. for 90-91 S.U. Sykes, Wainwright v. 129; 126, n. (1977). subjiciendum] corpus ad [ofhabeas writ “[n]o Virginia, In of facts allegation any of basis granted shall any pre- filing of time knowledge petitioner which 8.01-654(B)(2) Be- §Ann. Code Va. petition.” vious Brady claim his of grounds knew petitioner cause re- 8.01-654(B)(2)precludes § petition, first his filed when proceed- habeas state any future in claim petitioner's view attempt demonstrate no makes petitioner ing. Because proceed- habeas state in default his for prejudice cause writ. suit federal ain cognizable claim ings, his
Ill A challenge process due separate makes Petitioner about evidence introduced prosecution which in manner in claims separate two perceive We murders. below, detail greater in explain will we challenge. As alleges claim, a “notice-of-evidence” raises petitioner process due petitioner deprived Commonwealth that by evidence notice adequate him give failing to phase sentencing introduce Commonwealth claim, “misrepresentation” separate raises He trial. due violated the Commonwealth alleges which by intended it about petitioner misleading sentencing. use that, held we S.U. Connor, Picard In for relief claima remedies, exhausting state purposes federal specific ato reference include must corpus *10 guarantee, constitutional as well as a statement of the facts that entitle petitioner to relief. We considered whether petitioner habeas was entitled to relief on the basis of a claim, which was not raised in the state courts or in his fed- eral petition, habeas that the procedure indictment by which he was brought to trial equal violated protection. Id., at 271. In announcing that “the substance of a federal habeas corpus claim must presented first be to the state courts,” id., rejected 278, we the contention that petitioner satis- fied the requirement exhaustion 2254(b) § 28 U. S. C. presenting the state only courts with the facts necessary to state a claim for relief. [state “The court] dealt with the arguments [the petitioner] habeas offered; we cannot fault that court for failing also to consider sponte sua whether the procedure indictment [the petitioner] denied equal protection of the laws.” Id., at 277.
We have also indicated that it is not enough to make a general appeal to a guarantee constitutional as broad as process due present the “substance” of such a claim to a state court. In Anderson v. Harless, 459 U. S. 4 petitioner habeas granted was relief on ground that it violated process due for a jury instruction to obviate requirement that prove all the elements of beyond crime a reasonable doubt. Id., at 7 (citing Sand strom v. Montana, (1979)). 442 U. S. 510 only manner in which the petitioner habeas had cited federal authority by referring to a state-court decision in which “the de fendant ... asserted a broad process federal due jury instructions that properly explain state law.” S., 459 U. (internal quotation omitted). marks Our review of the r record satisfied us that the Sandstrom claim “was pre never sented to, or by, considered [state] courts,” but we found it especially significant that the “broad federal due right” that the petition might have been read to incorporate did not include “the particular more analysis developed in cases such as Sandstrom.” 459 U. S., at
164 on relies brief challenge in due Relying Ibid. process. due of analys[es]” “particular
two (1977), and 349 U. S. Florida, 430 v. like Gardner cases on ar- (1986),petitioner 1S. Carolina, U. 476 Skipper South v. the of notice “‘such given been have should he gues that have] [would hearing as [sentencing] the in involved issues for Brief case,”’ prepare to enable[d] him reasonably 283 Law Administrative Schwartz, B. (quoting 32 Petitioner opportunity fair “a denied was 1984)), (2d ed. for Brief issues,” sentencing determinative heard “legiti- defendant’s the from right stems This 33. Petitioner leads which procedure the character in interest mate S.,U. Gardner, 430 death, sentence” imposition deny” “opportunity an him giving justifies 358, which at id., at 362. information, sentencing determinative potentially may unconstitution- state way which in another “Yet opportunity meaningful defendant] of a [a deprive ally ... Brief misinforming him.” simply issues, is address S.U. 390 re Ruffalo, In cites Petitioner 34. Petitioner for Mooney (1959),and 423 U. S. Ohio, 360 (1968),Raley v. 544 proposition. this Ruf- 103 S. Holohan, U. v. held which in proceeding disbarment awas falo of the notice given not attorney disbarred adminis- which committee by the Ohio him against charges chair- Raley, In 550. S., U. discipline. 390 bar tered as- commission investigating state a members man against self-incrimination privilege witnesses sured con- were witnesses when but them, available held Ohio Supreme Court contempt victed priv- Amendment Fifth rendered immunity statute state Mooney in And at 430-434. S.,U. ilege unavailable. know- prosecution alleged that defendant Holohan, 110. atS.,U. his trial. testimony at perjured ingly used widely dif- Mooney arise Raley, and Gardner, Ruffalo, testi- secret use forbids Gardner fering contexts. capital case aof proceeding mony defendant has had no opportunity to consider or rebut. Ruf- deals with a defendant’s falo notice charges of the against him. Whether might supported have Ruffalo petitioner’s notice-of-evidence claim, see infra, 169-170, it not support does the misrepresentation claim for which petitioner cites Mooney it. prosecution forbade the to en- gage in “a deception deliberate of court jury.” 294 S.,U. Raley, though involving no deception, deliberate *12 held that defendants who detrimentally relied on the as- surance of a committee chairman punished could not be for having done Mooney, so. of course, would support lend to petitioner’s claim if it could be shown that the deliberately misled just him, not changed that he his mind over the course of the trial. The two separate. claims are
B argues Commonwealth misrepresentation claim “was never argued any before in court.” Brief for Respondent petitioner 39. If presented never this claim appeal on direct or in state habeas proceedings, federal habeas review of the claim would be barred petitioner unless could demonstrate cause prejudice for his to failure raise the claim in state proceedings. Supra, at 161-162. If the claim was not raised or addressed in federal proceedings, below, practice our usual would be to decline to review it. Yeev. (1992). Escondido, 503 519, U. S.
There is some ambiguity as to whether misrepresenta- tion claim was raised or addressed in the District Court or the Court Appeals. On the one hand, the District Court ordered relief primarily on the basis of Gardner, e., i. lack of notice. Supra, at 160. On the other hand, some of the Dis- trict findings Court advert to a deliberate decision prosecutor to mislead counsel for tactical advan-° tage. g., See, e. App. 348,350. The ambiguity in the federal record complicates the procedural state-court default issue, procedural
because default is an affirmative defense for ad- was claim misrepresentation If
Commonwealth. the Common- proceedings, federal stage of some dressed default procedural raise obligated been have wealth thereaf- defense assert lose defense, aas (1980); 234, n. S.U. Anderson, 447 v. Jenkins See ter. 227-228 S.U. Farley, 510 Schiro also see whether to determine Appeals the Court remand We merits briefs his what raised fact petitioner complaint “fundamental has he asserts this Court affirm- Commonwealth’s : the . . . litigation throughout presentation its regarding misrepresentation ative sentencing a fair Petitioner deprived . .. murders mis- If 4-5. Petitioner Brief Reply proceeding.” should Appeals raised, claim representation any de- preserved has Commonwealth whether consider preserved claim consider proceed it fenses appropriate. as defenses
C consider claim, and notice-of-evidence turnWe *13 this that correctly concluded Appeals the whether fed- rule new of a application retroactive sought the claim writ’s that concluded have We law. constitutional eral necessary intrusion least with fulfilled may be purpose by proceedings criminal finality of interest States’ with contemporaneous standards constitutional applying See petition. his review to conviction J.). (opinion O’Connor, 309-310 S.,U. Teague, court state “a only if appropriate is relief Thus, habeas conviction time claim petitioner’s] [the considering prece- existing by compelled felt have would final became by required was [he] seeks rule that conclude dent S. 494 U. Parks, Constitution.” Saffle that trial the start knew petitioner latest, theAt tending to introduce intended prosecutor then knew He murders. committed he show stand Tucker call Commonwealth repeat his petitioner statement that had admitted to commit- ting the murders.3 App. See 340; Record 8-9. He none- theless contends that he deprived of adequate notice of the other police witnesses, the officer and the medical ex- aminer who had investigated the Sorrell murders, whom he was advised that only would call on the eve- ning before the sentencing hearing. App. 342; 18 Record petitioner 777. But did not attempt to cure inadequacy of notice requesting more time to respond to this evi- dence. He instead moved “to have excluded from evidence during this penalty any trial evidence pertaining any any felony for which the yet defendant has other— charged.”4 Id., at 776.
On these petitioner facts, for prevail on his notice-of- evidence claim, he must establish process that due requires that he receive more than day’s notice of the Common- wealth’s evidence. He must also establish that due required a continuance whether or sought not he one, that, if he chose not to seek a continuance, exclusion only was the appropriate remedy for the inadequate notice. We conclude only adoption of a new constitutional rule could establish propositions. these
A defendant’s to notice charges of the against he must defend well established. In re Ruffalo, 390 U. S.
3When petitioner did object later, at the start of the penalty phase, to admission all the Sorrell evidence, murder conceded would have been prepared to refute such evidence if it had consisted only of testimony by Tucker or petitioner’s fellow inmates that petitioner had admitted to killing Sorrells. See 18 Record 4The District Court described petitioner’s counsel as having made a *14 “plea for additional time to prepare.” App. The Court of Appeals found plea insufficient to have legal effect in “If court: the defense felt unprepared to undertake effective cross-examination, one would think a formal motion for continuance would have been forthcoming, but none was made; ever counsel moved only that the evidence be excluded.” Gray v. Thompson, (CA4 58 1995). F. 3d 64 We agree with the Court of Appeals. 168 aBut 196 S.U. Arkansas, 333 (1968); v. Cole evidence the to notice right ahas he that claim
defendant’s on stands charges the prove to use to plans the state that Proc- Due “the said haveWe footing. different quite a discovery amount the regarding say to little has Clause ess Oregon, v. Wardius afforded.” be must parties the which Bursey, 429 v. (1973). In 470, 474 Weatherford S.U. aof claim due the (1977), considered we S. 545 U. surprise aid the with convicted had who defendant agent. undercover anwas accomplice who an testimony of the introduce to intended not had prosecutor Although the Id., day of trial. mind the his changed testimony, he agent’s defendant had told agent cover, the keep his To at 549. the defend- testify against not he his counsel ex- claim, defendant’s rejected We at 560. Id., ant. to dis- constitutional “[tjhere general nois plaining only addressed Brady,” which case, and a criminal covery in To at 559. id., one,” create not “did evidence, exculpatory order to court compel a not do cases mildly, these it put is fact, in import, their evidence; disclose claim. validity against strongly Florida, on Gardner principally relies Petitioner may not a defendant proposition S. 349 U. which information basis “on death sentenced (opinion Id., explain.” deny or opportunity no had sentenced court trial J.). Gardner, In Stevens, in assembled part on in relying death defendant commission; parole state investigation presentence portion a confidential contained report “investigation at 353. Id., counsel.” to defense disclosed con- see even opportunity no literally Gardner Petitioner it. contest alone information, let fidential to hear opportunity hand, had other case, present open Presswalla Dr. Slezak testimony of Officer notice claim His them. to cross-examine court, *15 much more akin to rejected the one supra, Weatherford, upheld than to the one in Gardner.
Even were our cases otherwise on the notice issue, we
acknowledged
have
that exclusion of evidence is not the sole
remedy
a
violation of a
conceded
to notice of an
Taylor
alibi
In
witness.
(1988),
Illinois,
v.
The dissent
petitioner
seeks the benefit of
a well-established
capital
rule, that “a
defendant must be
afforded meaningful
opportunity
explain
deny
against
evidence introduced
him sentencing.”
at
Post, disagree
we
180. Because
with the dissent’s assertion that
petitioner moved for a
disagree
continuance, we
with its
characterization of the
underlying
constitutional rule
claim for
Compare supra,
relief.
166-167,
4,n. with
post, at 184-185,n. 11.
glosses
The dissent
over the similar
“(dic
ities between this case and
Weatherford,
” post,
[s],’
tate
disposition
at 180, the
petitioner’s
claim—
adversely
petitioner
clearly
any precedent
than
—more
cited
the dissent. But even without
Weatherford
petitioner’s failure to move for a continuance, we
still
think the new-rule doctrine
meaningless
“would be
applied
if
generality.”
this level of
Sawyer Smith,
evidence rule. tional
D nonethe granted be should relief argues that Petitioner of one within falls proposes rule new less, because permits exception first “The exceptions. two Teague’s a class places rule if rule a new of application retroactive pro the State of power beyond the conduct private of S.,U. Teague, 489 (citing at 494 S.,U. Parks, 494 scribe.” second “The here. issue not is 311). exception This im procedure’ criminal of rules ‘watershed for is exception crimi accuracy of and fairness fundamental plicating supra, Teague, (citing at 495 supra, Parks, proceeding.” nal (1990)). Peti 416 S.U. McKellar, 494 v. Butler 311; “man is new rule notice-of-evidence his argues that tioner fairness fundamental of principles long-recognized dated sentencing determinations.” capital accuracy in critical 47. Petitioner Brief ex- paradigmatic that v. Parks in observed We Saffle re- is the procedure of criminal rule a watershed ample of trials criminal all provided be quirement Wain- (citing Gideon at S.,U. offenses. serious may think one (1963)). “Whatever S. 335 U. wright, none has rule, it proposed [petitioner’s] importance adopted in Gideon rule centrality primacy excep- within be thought to may rules other therefore Teague rule supra, at Parks, tion.” his relief habeas may obtain petitioner applies, claim. notice-of-evidence
IV procedurally Brady claim petitioner’s holdWe retro- seeks claim notice-of-evidence defaulted states claim Neither rule. newaof application active in federal granted may be relief upon which ground judgment vacate we However, proceedings. corpus Appeals Court of and remand the case for consideration misrepresentation claim in proceedings con- sistent opinion. with this
It is so ordered. Justice Stevens, dissenting. Ginsburg
Justice has cogently explained why well- settled requires law the reversal of judgment of the Appeals. Court of join I opinion her with this additional observation. The tending support proposi- tion petitioner committed the Sorrell murders was not even sufficient support filing of charges against him. *17 Whatever process limits due places upon the introduction of evidence unadjudicated capital conduct in they cases, surely were exceeded here. Given the importance” “vital “any impose decision to the death be, sentence ap- pear to be, based on reason caprice rather than or emotion,” the sentencing proceeding would have been fundamentally unfair prosecutors even if the given defense counsel fair notice of their intent to offer this evidence. See Gardner v. Florida, (1977) 430 U. S. 357-358 (opinion of Stevens, J.). Justice Ginsburg, with whom Justice Stevens, Jus- Breyer tice Souter, and Justice join, dissenting.
Basic to due in criminal proceedings is right the to a full, fair, potentially effective opportunity to defend against the charges.' State’s Gray Petitioner was not ac corded that fundamental penalty phase the of his trial capital for murder. I therefore conclude that no “new rule” implicated is petition in his corpus, dissent from the Court’s decision, which Gray denies the resentencing proceeding he seeks. I
Petitioner Gray Coleman s began murder trial Monday, December 2, 1985, city in the Virginia. Suffolk, He was during the commis- McClelland killing Richard
charged with §18.2- Ann. Code Va. capital offense. robbery, a aof sion pro- would trial law, 1995). Virginia 31(4) Under (Supp. jury would phase, guilt During the stages: two in ceed murder; and capital guilty Gray whether determine whether decide jury would phase, penalty during the imprisonment. life death sentenced Gray should 19.2-264.4(A) §Ann. Code Va. See phase guilt before conference in-chambers anAt directing order a court requested lawyers Gray’s began, introduce evidence disclose Defense convicted.1 Gray were if phase penalty during the prose- whether particular, in know, wanted counsel relating the murders introduce planned cutor De- daughter, Shanta. 3-year-old her Lisa basis court trial informed fense request: prob- willWe my concern. Honor, . Your “. . day or middle stop very best ably next trial the and start afternoon
late prose- [the to believe good reason [W]ehave day.... statement to introduce people call going cutor] is *18 inmate another made supposedly client that our very violent .and were Sorrells] which [the murdered he area. entire throughout this crimes well-known it in know to want going arewe in comes “If It’s argument.... our prepared canwe so advance 94-4009 in No. Appendix 3 Joint dynamite.” absolute A.). (hereinafter J. (CA4), pp. 1328-1329 Commonwealth, 225 1 Peterson pursuant made request This law, Virginia that, under instructed (1983), which 2d 520 S. E. Va. defend [the known to make “is trials capital practice” “preferred if stage penalty adduced to be is before trial ant] 2d, E.S. Id., guilty.” is found The Sorrell murders “were one of the most highly publi- cized crimes the history of the Virginia Tidewater, area.” App. 341. In December 1984, days five they after were re- ported missing, Lisa and Shanta Sorrell were found dead in a partially burned car in Chesapeake, Virginia, city shares borders with Suffolk. body Lisa’s was slumped in the front passenger seat of the car; she had been shot in the head six times. Shanta had been removed from her car seat and locked in the trunk, where she died inhaling after smoke produced by the fire in the car’s passenger compartment. Gray Neither anyone nor else has ever been charged with commission of the Sorrell murders.2 In response to defense counsel’s request, disclosure prosecutor Gray’s told lawyers and the court that he would introduce “statements” Gray had made to other inmates in Gray allegedly admitted killing the Sorrells. The fol- lowing exchange then place took between defense counsel Moore Ferguson: “MR. MOORE: Is it going to be just evidence or
statement? “MR.FERGUSON: your Statements that client made. “MR. MOORE: Nothing other than statements? “MR. FERGUSON: To people, other that’s correct. Statements by your made client that he did these things.” 3 J. A. (emphasis added). 2That Gray had not been convicted of killing the Sorrells not,
under Virginia law, bar admission of evidence relating to those crimes during the penalty phase of his trial. One of Virginia’s two aggravating circumstances requires the jury to determine whether “there a probabil ity that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society.” Va. §19.2- Code Ann. 264.2 The Virginia Supreme Court has held that “evidence of prior unadjudieated criminal conduct... may be used in the phase to prove the defendant’s propensity to commit criminal acts of violence in *19 the future.” Watkins v. Commonwealth, 229 469, 488, Va. 331 S. E. 2d 422, (1985). 436 of phase guilt ended, the conference in-chambers the After Thursday on 4 o’clock at later, days Three began. trial
the
finding
a verdict
returned
jury
the
5,
afternoon, December
Proceed-
McClelland.
of
murder
capital
the
of
guilty
Gray
phase
penalty
the
day, with
the
adjourned
ings were
morning.
next
the
begin
9:30
counsel
defense
informed
prosecutor
evening, the
That
intro-
planned
statements, he
Gray’s
addition
in
that,
That
murders.
Sorrell
the
relating to
evidence
further
duce
Detective
testimony of
(1) the
included:
further
mur-
Sorrell
the
investigated
who
police officer
the
Slezak,
shortly
scene
crime
the
observations
his
regarding
ders,
(2)
discovered;
were
Shanta
Lisa
of
bodies
the
after
inte-
the
depicting
scene,
crime
the
of
photographs
graphic
seat,
front
the
in
body
car, Lisa’s
burned
partially
the
of
rior
testimony Doctor
of
(3) the
trunk;
the
body in
Shanta’s
and
Presswalla,
the
conducted
who
examiner
medical
state
the
deaths;
their
of
causes
the
regarding
victims,
the
of
autopsies
the
time
victims
(4)
photographs
graphic
Lisa’s
back
depicting
photograph
including a
autopsies,
(5) Doctor
wounds;
gunshot
six
reveal
head, shaved
40-47.
29-37,
App.
See
reports.
autopsy
Presswalla’s
by the
evidence, advanced
additional
This
mur-
Sorrell
suggested
phase,
eve
similar”
“strikingly
a manner
in
out
carried
were
ders
Va.
Commonwealth, Gray McClelland.
murder
Sorrell,
Lisa
Like
157,
2dE. S.
too,
car,
head; times
six
shot
been
had
McClelland
ex-
later
counsel
defense
As
burned.
partially
had
murder
McClelland
between
similarities
“the
plained,
sitting
anyone
obvious
murder
App.
jury box.”
a proceedings
trial
6, before
morning, December
Friday
On
Thursday
court
informed
resumed, defense
they
court
lawyers told
Gray’s
developments.
evening’s
evening that
previous
time
first
learned
*20
prosecutor planned to introduce
relating
to the Sor-
rell murders other
Gray’s
than
alleged statements. Counsel
stated that while they were prepared to rebut the state-
they
ments,
were “not prepared
[the
to rebut
additional evi-
dence] .. . because of the shortness of notice.” 4 J. A. 2065.
“We are
prepared
to try the Sorrell murder today,” coun-
sel told the court. “We have not
given
been
sufficient no-
tice.” Ibid.
Gray’slawyers argued that the case
relied on
prose-
cutor, Watkins v. Commonwealth,
The penalty phase of the trial then commenced. The prosecutor, in keeping with representations before the guilt phase began, called Melvin Tucker to the stand. Gray’s Tucker was accomplice in the McClelland murder; along he, with Gray, initially had charged capital with plea murder. After negotiations, however, the agreed to reduce the charge against Tucker to first-degree murder, a noncapital offense, in exchange for Tucker’s testi- mony against Gray. App. 339, and n. 3. Tucker testified during guilt phase that Gray had “trigger been the man” in McClelland’smurder. shortly after that, phase testified Tucker searching “were Gray robbery, he McClelland crime. information” some newspaper through Gray stated Tucker, According to Id., at *21 Lisa of picture ato pointed and Sorrell, Lisa off” “knocked lawyers Gray’s 22-23.3 Id., newspaper. in Sorrell tes- phase penalty his after Tucker cross-examine to declined been already had lie to motive Tucker’s view, timony; in their id., at See phase. guilt during the exposed adequately had (“Melvin Moore) Tucker counsel (testimony defense of guilt during the cross-examined extensively . . . . . . been during there sitting were who jurors same The .... phase they and phase during the there were guilt trial why toas picture accurate pretty and drawn told been had anything anybody tell a deal strike Tucker Melvin to need didn’t That life. his To save hear. to they wanted again.”). up brought Defense Slezak. Detective called then prosecutor The of presence outside objection, their renewed Sorrell relating any evidence admission jury, to reiterated Counsel Gray’s statements. than other murders “taken been had this,” and notice no “had they had that by going “is prosecutor What 25. Id., at surprise.” he said what “is emphasized, they today,” do The 27. Id., trial.” beginning atdo going was was ruling that earlier its adhered court
admissible. Gray linking testimony Tucker’s than nothing more With allowed then court trial murders, Sorrell Slezak testimony of Detective introduce prosecutor autopsy scene crime as well as Presswalla, Doctor events version respect one in suggested, District theAs six 1985, some May in occurred murder McClelland implausible. May from newspaper No killed. Sorrells after months into evidence. introduced ever Lisa photograph containing App. See
photographs and the victims’ autopsy reports. See ante, at During 157-158. the defense Gray case, took the stand, ad- complicity mitted in the McClellandmurder being but denied “triggerman,” any and denied involvement the Sor- App. rell murders. 346-347. closing arguments, After which the highlighted the similarities between the Sorrell and McClelland urged murders, and Gray’s commission the Sorrell murders demonstrated his “future dangerous[ness],” id., see jury 51-53, the Gray’spun- fixed ishment at death.
Gray unsuccessfully argued on appeal direct to the Vir- ginia Supreme Court and in state habeas proceedings that admission of the additional Sorrell murders evidence violated to a fair trial under the Fourteenth Amendment. Gray then filed a federal petition in the United States *22 District Court for the Eastern Virginia. District of Gray argued, among things, other that admission of the Sorrell murders evidence violated his Fourteenth Amendment rights. 1 J. A. 35. Specifically,he asserted:
“The Commonwealth did not disclose its intentions to use the Sorrell murders against as evidence Gray until such late date impossible that it was Gray’s defense reasonably counsel prepare or against defend such evidence at trial. Because of the Gray notice, late . . . adequately could not prepare to defend his innocence regarding the Sorrell murders.” Id., at 33.
The District Court concluded that pressed other by claims Gray petition his federal habeas procedurally were either barred or meritless. The court found, however, the that Sorrell evidence claim “was consistently raised in the State courts procedurally not Id., defaulted.” at 253.
After conducting
evidentiary
an
hearing,
the District
granted Gray
Court
a writ
corpus.
of
Relying pri-
marily on
Gardner v. Florida,
Police subsequently learned that Timothy Sorrell had an apparent motive for the murders. Two weeks before Lisa and Shanta were killed, the Sorrells obtained a life insurance policy, designated Timothy and Shanta as beneficiaries in the event of Lisa’s death. Id., at 344.7 parents Lisa’s later filed a lawsuit to stop Mr. Sorrell from obtaining the proceeds of the policy, insurance alleging that he respon- sible for Lisa’s death. Ibid. In addition, police uncovered evidence suggesting that Mr. Sorrell was involved in a stolen ring merchandise place at his of employment, Sup- the Naval ply Center, and that Lisa very “was angry and unhappy about her apparent husband’s criminal Id., activities.” 345.8 Based on this information, Detective Slezak asked the
5Police designated Mr. Sorrell as the sole suspect on evidence they sent to crime labs for analysis. Id., at 344. 6Asked to describe what about Mr. Sorrell’s demeanor made him suspi
cious, Slezak testified: “I don’t know how to describe it other than to say that it was not you what would expect to find in a situation like that. He just seemed Id., defensive.” at 186. 7By contrast, police never established Gray’s supposed motive for killing the Sorrells. Lisa was found (a with her jewelry necklace and gold ear rings) undisturbed, as well as cash and a postal money order $280,
id., suggesting that robbery was not the perpetrator’s motive, id., at 317. 8Despite defense counsel’s pretrial request for all exculpatory evidence pursuant to Brady v. Maryland, U. S. 83 the prosecutor never disclosed the evidence incriminating Timothy Sorrell. Gray presented a Brady claim in his federal petition, but the District Court noted
180 it whether determine Attorney “to Commonwealth’s
local Ibid.9 Timothy Sorrell.” prosecute appropriate was murders Sorrell potency prejudicial Assessing the trial, the Gray’s phase penalty at admitted evidence was violation process due that concluded Court District va- therefore Court District The 353. Id., at harmless. not case remanded sentence, Gray’s death cated resentencing. for court trial state reversed. Circuit Fourth for Appeals Court The federal held It 59 3dF. 58 Thompson, Gray v. claim process Gray’s due because barred was relief which, under law constitutional rule” a “new on depended on applied be not could 288 S.U. Lane, 489 Teague v. accordingly re- Appeals Court The review. collateral dismiss District directing the case, manded petition. Gray’s habeas
II result “if the Teague under rule” “newa announces A case de- time existing at precedent dictated not was (plurality 301 Id., final.” became conviction fendant’s we when in final became Gray’s conviction opinion). de- Court’s Supreme Virginia review certiorari denied S.U. Virginia, 484 Gray See appeal. direct cision before well decided precedent below, explained (1987). As accorded not Gray was conclusion “dictates” trial. of his phase due fundamental. it is but encompassing, Gray’s claim defend- capital a contends, Clause, Process Due Under explain opportunity meaningful afforded must ant sentencing. him against introduced deny 5. Petitioner Brief Reply 45; Petitioner Brief See held it court, therefore state in raised claim J. A. barred. procedurally an affidavit stated reportedly trial, the local Gray’s After (news report id., at 927 2See suspect. longer no Mr. D1). 7, 1986, p. Jan. Virginian-Pilot,
181 The District Court Gray concluded that stripped any meaningful opportunity explain to deny or the Sorrell mur- ders lawyers evidence, for his were unfairly “ambushed”— clearly surprised and devastatingly by prosecu- disarmed tor’s decision, announced on the eve of the penalty trial, to introduce extensive evidence other Gray’s than statements. App. 349-351. Gray’s reasonably counsel relied on the prosecutor’s unequivocal only” “statements pledge, see id., at 342, made at the outset of trial; based prosecutor’s on the assurances, defense spent no tracking resources down police information in records on the Sorrell murders. The prosecutor’s altogether switch, unanticipated by defense counsel, left them with no chance to uncover, through their own investigation, information that could have defused the prosecutor’s case, in short, without time prepare an effec- tive Id., defense. at 351.
The Fourth Circuit
Gray’s
recast
claim,' transforming it
into an assertion of a broad
right
constitutional
to discovery
capital
cases. See
There is
“new” in a rule
capital
defendants
must be afforded a meaningful opportunity against
defend
the State’s
phase evidence. As this Court affirmed
more than
century
a
ago:
justice
“Common
requires that no
man shall be
person
condemned in his
property
without
. . .
opportunity
an
make
defence.” Baldwin Hale,
v.
(1864).
182 do.10 will not proforma opportunity A 277 274, S. U. mean- “at a be heard an opportunity demands Due Armstrong manner.” meaningful time ingful Oliver, 333 U. S. re In see (1965); 545, 552 Manzo, S.U. “a reasonable afforded must (defendant (1948) way him] against charges meet [the opportunity States, S.U. Morgan v. United or explanation”); defense only embraces hearing (“The right (1938) *26 opportu- reasonable a also but to present the right meet party opposing the of claims know nity opportu- effective fair, full, potentially a them.”). Absent to a charges, the State’s against to defend nity Mullane v. Ibid.; see one.” a barren be “but hearing (1950) 315 Co., 339 S.U. Trust &Bank Hanover Central due process”). not gesture mere is a (“process principal Florida, 430 349 S.U. v. In Gardner that confirmed Court, we District relied decision satisfy “must trial a capital phase sentencing Id., 358 (plu- Clause.” Process Due requirements a whether the question Gardner presented opinion). rality sen- judge trial when process due denied was defendant report, on a presentence in part relying to death him tenced coun- defense disclosed not portion a confidential including to chal- ... an “opportunity deprivation Counsel’s sel. infor- undisclosed materiality” or accuracy lenge left reasoned, Gardner plurality id., mation, con- accepted information “some risk manifest misinterpreted,” .. . erroneous, or been] [have may fidence night (notice to (1967) parents 1, 33 Gault, S. U. re In Cf. due inadequate; constitutionally hearing delinquency juvenile before of scheduled in advance sufficiently given “be notice requires process af be will prepare opportunity reasonable so proceedings court (defense counsel (1932) 45, 58 Alabama, U. S. forded”); Powell re constitutional satisfy the not could trial morning appointed case; investigate opportunity lacked because quirement to ignore simply otherwise, would decide “[t]o observed actualities”). id., at 359. As a basis for a death sentence, Gardner teaches, information unexposed to adversary testing does qualify as reliable. See ibid. The Gardner Court vacated the defendant’s sentence, concluding that he “was denied due of law when the death [penalty] was imposed, at in part, least on the basis of information which he had no opportunity to deny explain.” Id., at 362.
Urging that Gardner fails to “dictate” a decision for Gray
here, the Commonwealth relies on the Fourth Circuit’s rea-
soning to this effect: Gardner was a case about “secrecy”;
Gray’s case is about “surprise.” See 58 3d,
F.
at 65. There-
Gray
fore,
seeks an extension, not an application, of Gardner,
see Brief
Respondent
30, in Teague parlance, a “new
rule,” Brief for Respondent 31. It would be
impermis-
an
“leap,”
sible
the Fourth Circuit
equate
maintained, to
to a
failure to disclose, a disclosure in fact made, “but allegedly
so late as to be unfair.”
Teague is not the jacket strait the Commonwealth misun- it derstands Teague be. requires federal courts to decide *27 a constitutional claims according to the prevailing “law at [his] the time conviction became final.” 489 S.,U. (internal 306 (plurality opinion) quotation marks omitted). Teague But does not bar federal habeas courts applying, from myriad in “a of factual contexts,” law that is here, the to a meaningful settled— chance to defend against explain charges pressed by the State. See Wright v. West, (1992) 505 U. S. 277, 309 J., con- (Kennedy, curring (“Where judgment) the beginning point is a rule of general application, a designed rule specific for the purpose of evaluating myriad a of factual contexts, it will be the infrequent yields case that a result so novel forges that it a new rule, one not by precedent.”). dictated The District Court did “forg[e] not a new rule,” by ibid., holding, on the facts of this case, Gray was denied a meaningful opportunity to challenge the Sorrell murders evi- dence. Ordinarily, it is upon incumbent defense counsel, pur- issues, triable the of notice adequate receiving after evi- relevant rebut needed investigation whatever
sue
keeping
however, in
Here,
may introduce.
the State
dence
see
court,
highest
Virginia’s
by
approved
practice
the
with
expressly delineated
prosecutor
1, the
n.
supra, at
introduce
would
he
the
character
scope and
the
than
nothing other
murders:
Sorrell
respect to
with
supra, at
made, see
allegedly
Gray himself
statements
Gray’s
“state-
prosecutor’s
on
reasonably relied
lawyers
details
inquiry into
forgoing
only” assurance
ments
they
investigation,
Resource-consuming
crimes.
the Sorrell
doubt
unnecessary
cast
determined, was
responsibly
only evidence
testimony, the
“snitch”
veracity
inmate
offer.
would
he
initially said
prose-
by the
caught short
undeniably
lawyers were
Gray’s
penalty
before
night
announcement,
startling
cutor’s
“mini-
put on
effect
begin,
towas
phase
lawyers
Gray’s
point,
At
murders.
trial”
preparation
investigation and
conduct
possibly
not
could
evi-
newly announced
prosecutor’s
necessary
counter
re-
were
counsel
trial, defense
Thus, at
dence.
later
proof,
Lacking
spectators.
role
nearly
duced
Sorrell,
Timothy
suggested”
“strongly
uncovered,
lawyers
Gray’s
350-351,
App.
killer,
actual
Gray, was
of Detective
cross-examination
only
feeble
mount
could
whether
detective
inquired
simply
Slezak;
crimes,
“copycat”
prompt
could
crimes
publicized
highly
all
questions
no
lawyers
Gray’s
id.,
37-40.
see
about
testified
who
examiner
medical
Presswalla, Doctor
47.11
Id., at
autopsies.
the Sorrell
*28
ex
to ask
lawyers
Gray’s
11
failure
weight
attaches
The Court
ante, at
is
167,
It
169.
See
phase.
of the
deferral
plicitly
a continuance.
motion
formal
no
made
counsel
defense
uncontested
episode,
morning-of-trial
described
District
But as
earlier
as
And
343.
App.
prepare.”
time
for additional
“plea[ded]
con-
dilemma
about
explicit
was
174-175, counsel
supra,
at
noted,
see
In sum, the record
beyond
shows,
genuine debate, that
Gray was not afforded a “meaningful” opportunity to defend
against the additional Sorrell murders evidence. The fatal
present
infection
in Gardner infects this case as well: De-
fense counsel were effectively deprived of an opportunity to
challenge the “accuracy or materiality” of information relied
on in imposing the death sentence. Gardner,
S.,
430 U.
at
356. Unexposed to adversary testing, the Sorrell murders
“carrie[d]
no assurance of reliability.” App. 351.
The “debate between adversaries,” valued
system
in our
justice for its contribution “to the truth-seeking function of
trials,” Gardner,
fronting the defense: “We are not prepared to try the Sorrell murder today.” 4 J. A. 2065. The Court’s suggestion that “this plea [was] insuf- ficient to have legal effect in court,” ante, 167, 4,n. is puzzling. Neither Court, the Fourth Circuit, nor the Commonwealth has cited any Vir- ginia authority for this proposition. Cf. Smith v. Estelle, 602 F. 694, 2d (CA5 701, (“the n. 8 1979) points state us to no rule of Texas law saying that moving for continuance is the only way to object to surprise”), aff’d grounds, other 451 U. S. Given the potency of the evidence in question, it is difficult to comprehend the Court’s speculation that de- fense counsel, for “tactical” reasons, may have wanted only exclusion and not more time. Compare ante, with Tr. of (counsel Oral Arg. 11 for petitioner urged that if a trial judge asked, “please stop this from happening ..., it violates my [client’s]right to a fair trial,” the existence of that right should not turn on whether counsel next says, “please exclude this evidence, as opposed to please give time”). me more v. Bursey, 429 U. S. Weatherford Court, featured ante, see 169-170, hardly controls this case. There, the State’s witness, and not the prosecutor, misled defense counsel. S., 429 U. at 560. Furthermore, did not involve the Weatherford penalty phase of a capital trial, a stage at which reliability concerns are most vital. Finally, the defendant in did not object at trial Weatherford to the surprise witness, and did not later show how he was prejudiced by the surprise. Id., at *29 * *
* Court’s District conclude I stated, reasons For aon rest did sentence Gray’s death vacating decision reverse therefore I would law. constitutional rule” “new dis- respectfully Appeals, judgment decision. Court’s from sent