*1 KUHLMANN, SUPERINTENDENT, SULLIVAN

CORRECTIONAL FACILITY WILSON Argued January No. 84-1479. 1986 Decided June *2 Powell, J., judgment and delivered the announced the Court I, IV, V, BURGER, respect and in which opinion with to Parts Court JJ., White, Blackmun, Rehnquist, O’ConnoR, joined, J., and and C. III, BURGER, J., respect II in which C. opinion to Parts and and Rehnquist J., O’Connor, JJ., Burger, joined. C. filed con- *3 Brennan, J., dissenting opinion, a curring opinion, post, p. 461. filed Stevens, J., Marshall, J., p. dissenting 461. filed a joined, post, which p. opinion, post, argued petitioner. Kartagener R. the cause for

Steven Jeremy him were Mario Merola and With on the briefs Gutman. argued

Philip a for the cause and filed brief S. Weber respondent. judgment of the Court announced the Powell Justice respect opinion Parts the Court with

and delivered the respect opinion II and III to Parts I, V, and and an with IV, and which Rehnquist, Justice, Chief Justice join. Justice O’Connor requires the circumstances under

This case us to define prisoner’s peti- a state which federal courts should entertain rejected raises claims a for on tion writ petition prior relief. for the same h-4 morning July respondent early 4, 1970, two

In the Garage in the Bronx, the Star Taxicab confederates robbed dispatcher. Shortly fatally night York, New shot the employees garage respondent, before, of the had observed employee premises conversing there, former on the with two They respondent fleeing other men. also witnessed after the robbery, carrying money eluding loose his arms. After days, police respondent four turned himself in. Re- present spondent admitted that he had when the been crimes place, robbery, gave took claimed that he had witnessed the police description knowing robbers, but denied any Respondent them. bery also denied involvement the rob- claiming he he murder, had fled because was being afraid of for the crimes. blamed arraignment, respondent After in the his was confined placed Bronx House of where he was in a cell Detention, with Benny prisoner respondent, named Lee. Unknown to Lee agreed police Respondent had to act as a informant. made incriminating reported police. statements that Lee respondent suppress Prior to trial, moved to the statements ground they right on the were obtained in violation of his evidentiary hearing The trial an to counsel. court held on suppression motion, which revealed that the statements following were made under the circumstances. jail, respondent in the Lee had

Before arrived entered into according arrangement Detective Cullen, which agreed report Lee to listen to conversations and police positive his remarks to Cullen. had evi- Since *4 respondent’s participation, purpose placing dence of the respondent’s Lee in the cell was to determine the identities of respondent confederates. Cullen instructed Lee not to ask any questions, simply “keep open” the but to his ears for spoke perpetrators. Respondent names other first to Lee about the crimes after he looked out the cellblock Garage, had at the Star Taxicab where the crimes' window messing Respondent me,” with said, occurred. “someone’s narrating began talking robbery, the and to Lee about the story given police ar- of his the time same that he had the explanation respondent “didn’t rest. Lee advised that this respondent story. good,”1 did not alter his respondent sound too but days, changed however, the few de- Over next original Respondent a account. then received tails his who mentioned that members of his brother, visit from his upset they respondent family because had were believed dispatcher. respondent again visit, murdered the After Respondent crimes Lee. to now admitted described men, identified, and two other whom he never had he robbery, planned carried and had and out murdered dispatcher. respondent’s Lee informed Cullen of statements surrep- and furnished Cullen with notes that he had written titiously respondent. sharing cell while with testimony hearing Lee,2

After of Cullen and the trial ques- court found that Cullen had instructed Lee “to ask no merely [respondent] tions of about the crime but as listen might say presence.” [respondent] to what in his The court obeyed instructions, determined that Lee these that he “at any questions respect crime,” no time asked with and “only [respondent] regard- he listened to made notes ing [respondent] say.” what had The trial court also “spontane- found that statements to Lee were precedent, ous” “unsolicited.” Under state defend- police agent ant’s volunteered statements were admissi- required police because the were not ble evidence incriminating prevent making talkative defendants from People Kaye, 139, 25 N. 2d statements. See Y. accordingly E. 2d court denied N. trial suppression motion. that, hearing respond after suppression hearing, At the Lee testified crimes, “I I think participation initial of his in the remember ent’s version good. story him sound too telling Things that the wasn’t —it didn’t didn’t trial, to somewhat good him.” Lee testified ver look too At different said, look, you up better “Well, come sion of his remark: I a better me, too sound cool to I story than that one doesn’t that’s what that because said.” testify suppression Respondent hearing. did

441 respondent jury The convicted common-lawmurder and weapon. possession May of a 18, 1972, felonious On the trial years him a to term of 20 court sentenced to life on the mur- up years and to concurrent term der count to 7 on the Appellate weapons count. Division affirmed without opinion, People App. Wilson, Div. 2d 343 N. Y. S. (1973), Appeals 2d 563 the New York Court of denied respondent appeal. leave to respondent petition December 7, 1973,

On filed a for fed- Respondent argued, among relief. eral other things, pursuant that his statements to Lee were obtained investigative police methods that violated his constitutional rights. considering After Massiah v. States, (1964), S. 201 the District Court for the Southern District January New York denied the writ on 7,1977. The record interrogation demonstrated “no “only spontaneous whatsoever” Lee and respondent.

statements” from In the preclude[d] “fact[s] any District Court’s view, these Sixth Amendment violation.” panel Appeals

A divided of the Court of for the Second Cir- cuit affirmed. v. Henderson, Wilson 584 F. 2d 1185 The court noted that a defendant is denied his Sixth Amend- rights ment when the trial court admits evidence incrimi- nating agents deliberately statements that state “‘had elic- him ited from after he had been indicted and the absence of quoting counsel.’” States, Massiah v. United supra, Relying part at 206. on Brewer v. Williams, “deliberately the court reasoned that the requires something elicited” test of Massiah more in- than criminating statements uttered in the absence of counsel. On the facts found the state trial court, which were enti- presumption tled to a of correctness under 28 U. S. C. § 2254(d), respondent the court held that had not established rights.3 a violation of his Sixth Amendment We denied a Appeals The Court of suppression observed that state purpose” ments would serve “no useful because Cullen had engaged *6 442

petition Henderson, 442 certiorari. Wilson v. for a writ (1979). 945 Henry,

Following this Court’s decision in United States v. applied sup- the Massiah test 447 U. S. 264 which to paid jailhouse press to a informant, statements made re- relitigate spondent decided his Sixth Amendment claim. September 11, he in state 1981, filed trial court motion On judge The the motion, to vacate his conviction. denied on grounds Henry factually distinguishable that was from precedent Henry that state case,4 under was not to given People Pepper, effect, see v. 53 2d be retroactive N. Y. Appellate 2d 213, N. E. Division denied appeal. respondent leave to July respondent 1982,

On returned the District 6, Court petition, on for again arguing Southern District New York a habeas incriminating that admission evidence of his rights. to Lee statements Respondent violated his Sixth Amendment Henry contended that decision constituted applied retroactively new law that should be rule of to this unnecessary District it case. The Court found to consider retroactivity Henry because it decided that did not under- prior disposition respondent’s Appeals’ mine the Court Noting Henry Amendment claim. Sixth reserved question the Constitution forbade admission in whether evi- of an accused’s statements to an informant who made dence “no effort to stimulate conversations about the crime charged,” Henry, supra, v. see United States at n. behavior,” “reprehensible police but rather had made a “conscious effort” [under Massiah] protect respondent’s rights pursu- “constitutional while Henderson, Wilson investigation.” 2d, v. ing a crucial homicide F. dissented, Judge arguing “deliberately elicited” Oakes test Massiah proscribed admission evidence of accused’s statements ob- pursuant investigatory tained tactics used here. 1194-1195. Henry found that States judge distinguishable The trial paid jailhouse reporting informant that case was the de because police. fendant’s statements presented open

the District Court believed that this case question question negatively. and that the must be answered findings The District Court noted that the trial court’s were presumptively 2254(d), correct, see 28 U. S. C. and were fully supported by the record. The court concluded that findings these were “fatal” to claim under Henry they since showed that Lee made no “affirmative ef- *7 any respondent. fort” of kind “to elicit information” from again panel A Ap- different, and divided, of the Court of peals reversed. Wilson v. 742 F. Henderson, 2d 741 As an initial matter, that, court stated under Sanders v. (1963), justice” 1 States, 373 U. S. the “ends of re- quired petition, notwithstanding consideration of this the fact prior panel adversely that the had determined the merits to respondent. 742 2d, F. at 743. The court then reasoned respondent that the circumstances under which in- made his criminating indistinguishable statements to Lee were from Henry. Finally, Henry the facts of the court decided that fully applicable was here because it did not announce a new merely applied principles constitutional rule, but settled new facts. 742F. 2d, at 746-747. Therefore, the court con- judges rejected cluded that all of the who had considered and respondent’s claim had erred, and remanded the case to the District Court with instructions to order release prison retry from unless the State elected to him.5 Graafeiland, 5Judge dissenting, Van observed majority con change ceded that there had been no in the law that had “transformed con formerly duct that we held to be constitutional into conduct that is now 2d, Thus, majority’s unconstitutional.” 742 F. at 749. rejection judges the conclusion reached previously who had considered re spondent’s claim accept was based on its refusal to the trial court’s factual Id., determinations. at 748. The dissent majority criticized the for dis regarding presumption “the that the findings State court’s factual are cor rect, 2254(d), § adequate explanation why S. C. without an as to Id., findings fairly supported by are not the record.” at 749. In Judge view, boilerplate Van Graafeiland’s justice’ “[a] statement that the ‘ends of 444 (1985), granted certiorari, consider

We Appeals’ justice” Court of decision that the “ends of re- corpus petition quired this successive habeas consideration of application Henry decision in court’s our facts this case. We now reverse.

K In concluding appropriate respond A it was entertain corpus petition, Appeals ent’s successive habeas the Court upon States, relied Sanders S. v. United guidelines for announced the federal courts to follow which equivalent presented petitions when their or an “abuse of claimed to be “successive” the writ.”6 question prisoner’s narrow Sanders was whether federal properly motion 28 U. C. denied under S. without hearing ground that on the the motion constituted succes application. only 4-6. sive The Court undertook not question, explore to answer that but also the standard that *8 govern courts’ of should district consideration successive inquiry petitions. Sanders framed the in terms of the re justice,” advising quirements of the “ends of district courts to raising petitions equivalent dismiss habeas or their claims adversely prisoner prior petition on a if determined rejection justify on merits not warrant of that reconsideration the does all Ibid, omitted). (citations gone on has before.” petition” The of have terms “successive and “abuse the writ” distinct meanings. petition” grounds A raised “successive raises identical those rejected See Sanders v. prior petition. on the merits on a States, today the at 15-17. Our decision concerns circum properly under which courts should entertain the merits of stances district petition. concept The such of “abuse writ” is founded on the Thus, prisoner equitable corpus. petition nature of habeas where files a upon raising grounds prior petition, that relied in a were available but not seeks,” him engages “disentitle[s] in other conduct that to the relief he may subsequent petition ground the the federal court dismiss on that prisoner has abused the writ. at 17-19. justice by reaching “the ends of would not be served the mer- subsequent application.” Id., 15, its of the 16-17. While making proof clear that the burden of on this issue rests on prisoner, provided id., 17, the Court in little Sanders specificguidance proof prisoner as to the kind of that a must justice” offer to establish that the “ends of would served be by relitigation previously against of the claims decided him. Appeals’

The Court of decision this case demonstrates provide guidance. opin- the need for this Court to Appeals light important ion of the Court of sheds no on this question, merely declaring threshold “ends of justice” required corpus successive federal habeas review. provide guidance judges Failure to clear leaves district “at large disposing applications corpus,” for a writ of habeas creating danger they engage in will “the exercise not Allen, law but of arbitrariness.” Brown v. (1953) J.). (opinion Frankfurter, This Court there- govern fore must now define the considerations that should disposition petitions federal courts’ of successive for habeas corpus.

B Congress Since when first authorized the federal persons custody,7 courts to issue the writ on behalf state upon interpret this Court often has been called the lan- guage defining jurisdiction. scope of the statutes of that may helpful construing It be review our cases these fre- quently specific question used statutes before we answer today. before us early years century, scope

Until the substantive of the federal habeas statutes was refer- defined *9 7 1789, 20, 14, 81, The Judiciary grant Act of ch. 1 Stat. the first of jurisdiction courts, authority to the federal included to issue the writ of subjiciendum corpus ad prisoners. 1867, habeas on behalf of federal Congress grant persons in authorized the federal courts to habeas relief to custody 5, 1867, 28, 1,§ the of the States. Act of Feb. ch. 14 Stat. 385. Powell, (1976). Stone v. 465, See 428 U. S. 474-475 446 scope the law, of the writ at common where the

ence inquiry exclusively ju- on habeas limited the courts’ “to sentencing of v. Powell, risdiction the tribunal.” Stone (1976). Wainwright Sykes, 465, 475 v. S. U. S. See (1977); Legal History High 72, 78, Oaks, see also the Corpus, 451, Court—Habeas (1966). 64 Mich. L. Rev. 458-468 judgment committing finality the the of a Thus, of jurisdiction competent respect court of was accorded absolute habeas review. See v. Bustamonte, on Schneckloth (1973) concurring). During 218, (POWELL, J., 254-256 U. S. century, expanded grounds gradually the this the Court on authorizing available, which habeas relief was use of challenge prisoner the writ to convictions where claimed rights. Wainwright of a violation certain constitutional See Sykes, supra, supra, Powell, v. at Stone v. at 475- 79-80; initially accomplished expansion Court while purporting inquiry sentencing to adhere to the into the jurisdiction. Wainwright Sykes, court’s v. 433 U. at 79. S., Ultimately, jurisdiction concept of the Court abandoned acknowledged “review is available claims ‘disregard rights accused, of constitutional of only preserving his where writ is the effective means of rights.’” quoting Waley Ibid., Johnston, 104-105 expanding scope

Our decisions have not limited been Significantly, Powell, the writ. we Stone v. removed prison- from the reach of the statutes a federal habeas state er’s claim that “evidence obtained unconstitutional pris- search or seizure was introduced his trial” unless the provide him oner could that the had “an show State failed opportunity litigation” Fourth for full and fair his Amend- omitted). (footnotes claim. Al- ment at 494 though accepted jurisdiction previously had Court persuaded search and seizure we were claims, id., goal any legitimate furthering “advance of Fourth judicially rights” through application ere- Amendment *10 by exclusionary “outweighed rule on federal habeas was ated sys- acknowledged to a rational costs to other values vital Among justice.” those costs Id., tem of criminal at 494. participants at a crimi- diversion of the attention of the were question guilt innocence,” or nal trial “from the ultimate evidence that “often the most and exclusion of reliable probative bearing guilt on the or innocence of the information except this cate- Id., defendant.” at 490. Our decision to danger gory corpus created no of claims from habeas review compelling denying “safeguard against an that we were liberty.” loss of innocent man to suffer unconstitutional defendant who Id., 491-492, Rather, at n. convicted pressed and seizure claim on collateral attack was a search “usually society ha[d] asking no to redetermine an issue that ” bearing justice at 492, on the basic of his incarceration. n. 31. past construing of the two or three decades decisions reading statutes, whether those statutes

reach narrowly, broadly the Court has reaffirmed that “habeas traditionally governed by eq- corpus regarded been as has Fay principles.” v. Noia, 391, uitable 372 U. S.

citing ex rel. Baldi, United States Smith v. S. (1953) (dissenting supra, opinion). Powell, Stone v. at See uniformly guided 478, n. 11. The Court has been proposition that the to afford relief writ should be available “persons society wronged” grievously those whom has light concepts justice. Fay supra, Noia, of modern supra, n. 31. as Powell, 440-441. See Stone v. Just justice prevailing inception notions of at the of habeas when a conviction a court that were offended was issued jurisdiction, intoler- lacked so the modern conscience found obtained violation of certain constitutional able convictions scope of has defined the commands. But Court never simply by perceived to assure to a need the writ reference free of trial that an individual accused of crime is afforded performed its has Rather, constitutional error. the Court statutory through weighing task a sensitive of the interests *11 adjudication implicated by corpus federal habeas of constitu- adversely prisoner by determined to the the tional claims g., Engle Isaac, 107, E. v. state courts. (1982); U. S. 126-129 supra, Fay Powell, Stone at 489-495; Noia, v. v. supra, at 426-434.8

III

A phrase justice” in The Court Sanders drew the “ends of di- rectly from the version 28of U. C. 2244in effect in 1963. S. provision, governed petitions by which then filed both prisoners, part

federal and state stated relevant that no judge required application federal “shall be to an entertain corpus inquire a for writ of habeas to into the detention of a appears person legality if, ... it that the of such detention by prior applica- has been a determined” federal court “on a corpus petition presents tion for writ of habeas and no ground presented not new theretofore and determined, judge justice ... is satisfied that the ends will not be of (1964ed.) (em- §2244 by inquiry.” served such C. added). phasis Accordingly, describing guidelines for suc- 8 Contrary suggestion dissent, of Justice Brennan’s our cases deciding ordinarily that procedur federal habeas review does not extend to Post, ally plainly “general scope defaulted claims concern the the writ.” of that, point balancing competing at 464. The of those decisions is on implicated by persons in affording interests federal collateral state relief custody, jurisdiction corpus federal courts not over should exercise habeas category claims, a certain of not those claims are constitutional whether or as carving meritorious. decisions out Whether one characterizes those “exception” jurisdiction, apparently federal as the dissent an habeas scope do, concerning jurisdic of that prefers post, n. or as tion, same, under framework analysis the result is the and was reached Noia, Similarly, Fay weighed pertinent interests. Justice “practical made a expressly opinion appraisal for the Court Brennan’s forfeitures, system procedural weighing the state interest” that in implicated federal against terest the other interests collateral review course, at 433. procedurally Of defaulted claims. that the reading expansive of the adopted scope in Noia of the Court writ does by balancing so competing that it did not undercut the fact interests. than the lan- quote did little more Sanders cessive petitions, statute, day for another leaving then-pertinent guage content. substantive language of giving task reviewed carefully Congress In 1966, §2244. including their provisions, amended statutes which we construe successive 2244(b), today, governs Section no ref- The section makes filed state prisoners. petitions that the federal and provides the “ends justice,”9 erence from “subsequent applications” “need not” entertain courts predi- and is application alleges “unless the prisoners state on” the ground adjudicated on a factual or other cated unless the court ... is satisfied “and application prior deliberately the earlier application has not on applicant *12 the or otherwise abused ground the asserted newly withheld we are language, cognizant In construing writ.”10 in of the need —often rec- light the section adopted Congress individ- the interests of the weigh this Court —to by ognized of the contrary interests the sometimes against ual prisoner of criminal system a fair and rational administering State laws.11

9 by federal petitions filed 2244(a), governs § now successive In which language of former virtually intact the Congress preserved prisoners, justice.” the “ends of 2244, including the reference to § 2244(b)provides: §C. 10 Title28 U. S. factual hearing the merits of a material evidentiary on “When after law, person cus- of an issue of

issue, hearing on the merits or after a by a court court has been denied judgment of a State tody pursuant to the from States release justice judge of the United or a or the United States corpus, a of habeas remedy application for a writ custody on an or other person corpus in of such habeas behalf for a writ of subsequent application justice or or a by of the United States a court not be entertained need alleges predicated and is application unless the the United States judge of hearing earlier the adjudicated on ground factual or other on a court, judge or is satisfied justice, writ, unless the application for deliberately withheld application on the earlier applicant has not writ.” abused the ground or otherwise newly asserted 11 corpus review by habeas implicated federal Sensitivity interests . . dis- courts “shall. the federal statutory command implicit Congress history legislative in- The demonstrates that § including 2244(b), amendments, tended those greater degree finality judgments in habeas introduce “a Rep. Cong., corpus proceedings.” 2d S. No. 89th (Senate (1966) Report). Congress was concerned Sess., “steadily increasing” imposed on the burden federal by “applications prisoners State for writs of courts corpus.”12 Rep. Cong., see H. R. No. 89th 1; (1966)(House Report). many Sess., instances, 2d 5-6 “heavy applications was “unnec- burden” created these essary” filing applications prisoners because state “have been containing allegations either identical those asserted application predicated upon previous denied, that has been obviously grounds they known well to them when filed the preceding application.” Report, at 2; Senate see House Re- Report port, explicitly The at 5. Senate states that the “purpose” of the amendments was to “alleviate the unnec- essary by adding provisions “to 2244 . burden” section . . qualified application judicata.” doctrine of res Sen- Report, Report, 2; ate see House at 8. The House also pose justice require.” (empha- as the matter law and S. C. added). sis Report incorporates Judge a letter from Circuit Senate Senior Phillips Joseph D. Tydings L. to Senator that states: Orie *13 by legislation... “The this need for demonstrated the fact the num- corpus by for in applications ber of writs of habeas Federal courts State prisoners in 1963, from 134 1941 to 814 in In court increased fiscal 1,692 applications by prisoners; for the writ were filed State court in fiscal 1964, 3,248 applications filed; 1965, 4,845 were in applica- such fiscal such filed; 1966, 3,773 in applica- tions were the first months of fiscal such filed, percent yet applications than 5 such tions were less were decided by applicant in favor the Federal district courts of the for the writ. More percent Report, 4, than 95 were held to be without merit.” Senate 5-6. 1966, by imposed applications the burden for Since federal habeas by prisoners 1966, 5,339 filed state has continued to increase. In a total of applications 8,534 applications was filed. such were filed. An- Report nual of the Director of the Administrative Office of S.U. Courts expressed increasing concern that number of habeas applications prisoners “greatly from state interfered with the procedures processes by delaying, in State courts many proper judgments.” eases, enforcement of their Id., at 5. legislative

Based on the 1966 amendments and their his- tory, petitioner argues longer that federal courts no must justice” dismissing consider the “ends of before successive petition. reject argument. We It is clear that Con- gress general give intended for district as the courts, rule, to preclusive judgment denying effect to a on the merits a ha- petition alleging grounds beas identical in substance to those subsequent petition. permissive raised But the lan- 2244(b) § guage gives federal courts discretion to entertain petitions successive under some circumstances. Moreover, 9(b) Governing Rule of the Rules Section 2254 Cases in the Courts, United States District which was amended in 1976, permissive language, providing contains similar that the dis- “may” petition” trict court dismiss a “second or successive “allege grounds that does not new or different for relief.” § Congress’ enacting 2244(b), Consistent with intent Advisory 9(b), however, Committee Note to Rule p.C., states that federal courts S. should entertain petitions only successive “rare instances.”13 Unless those caprice, “rare instances” are to be identified whim or dis- given judges guidance determining trict must be when to 2244(b). granted exercise the limited discretion them Accordingly, identifying as a means of the rare case in which federal courts should exercise their discretion to hear a suc- petition, rely cessive we continue to on the reference in justice.” provide Sanders “ends of Our task is to justice” of the “ends of definition will accommodate Con- gress’ give finality judgments intent to to federal habeas

13 Advisory justice” Committee Note relies on the inquiry “ends of Sanders identify peti described the unusual case where a successive be heard. tion should *14 provide corpus of habeas historic function relief from

the unjust incarceration.

B which now consider the limited circumstances under We prisoner relitigating in the interests of the constitutional prior petition may outweigh on a claims held meritless finality countervailing according interests the served judgment. prior We turn first to the interests of the the prisoner. may prisoner having in have a interest a second vital justice to test fundamental of his incarceration.

chance the many judges the where, here, Even as who have reviewed proceedings provided by prisoner’s in claims several petition and on first for federal have State his error, that his trial was free from constitutional a determined legitimate prisoner powerful retains interest obtain- custody ing charge if his release he is innocent of from he was interest extend, which incarcerated. That does not guilt prisoners plain. however, to whose is conceded As guilty prisoner Harlan observed, himself has “an Justice insuring point that there will at some interest be cer- tainty litigation, an end comes with that attention ultimately focused not on will be whether conviction was prisoner free from error rather on but whether can be place community.” to a restored useful Sanders v. (dissenting). States, at 24-25 against prisoner’s Balanced interest in access to a justice forum to test the his in basic confinement are the terests State administration of its criminal statutes. Finality many important serves of those interests. Avail ability guilty of unlimited federal collateral review to defend legitimate deterring ants frustrates the State’s interest in penal crime, since the deterrent force laws is diminished to persons contemplating activity the extent that criminal be possibility they 'escape punishment there is lieve will

453 through repetitive collateral attacks.14 See v. Engle Isaac, 456 127-128, n. 32. Similarly, serves the finality State’s goal those who rehabilitating commit crimes be “[rjehabilitation cause demands that the convicted defendant realize that ‘he is justly subject sanction, he stands need of rehabilitation.’” at 128, n. 32 (quoting Bator, in Criminal Finality Law and Federal Habeas Corpus (1963)). State 76 Prisoners, Harv. L. Rev. 452 441, See Schneckloth v. 412 Bustamonte, S.,U. at 262 (Powell, J., also concurring). Finality serves the State’s legitimate puni tive interests. When a prisoner is freed on a successive peti tion, often after many years crime, his the State be un may able him.15 successfully retry Rowe, v. Peyton (1968). 54, 62 This result if unacceptable the State must forgo conviction of a guilty defendant the “erosion of through and memory” of witnesses” “dispersion that occur with the passage time that invariably attends collateral attack.16 depends upon expectation “Deterrence violating ‘one the law swiftly certainly subject will punishment, just and become punish Isaac, Engle 107, 127-128, ment.”’ v. 456 U. S. quoting n. 32 Bator, Finality in Law Corpus Criminal and Federal Habeas for State Pris (1963). oners, 441, 76 Harv. L. Rev. prisoner Where the petition, secures his release on a successive delay between following the crime and retrial issuance of the writ often will delay be substantial. The Respondent this case is illustrative. com robbery 1970, mitted the and murder in and was convicted in 1972. Direct appeal completed intervening years in 1973. The largely have been review, corpus past consumed federal habeas years with the four de relitigation voted to claim that admission evidence of his statements to Lee violated the Sixth Amendment. 16Finality goals important serves other system justice to our of criminal and to availability federalism. Unlimited of federal collateral attack bur justice system dens our petitions criminal as successive divert the “time of judges, prosecutors, lawyers” important from the trying task of crimi nal Friendly, cases. Is Innocence Irrelevant? Collateral Attack on Crimi (1970). Judgments, nal Engle 38 U. Chi. L. Rev. 148-149 See v. Isaac, supra, at 127. Federal habeas review creates friction between our courts, state and judges federal as thorough- state able and —however judgments may know that their single be set judge, aside federal Friendly, supra, Engle 127-128; Is Innocence Isaac, Judgments, 38 Attack on Criminal Irrelevant? Collateral L. 146-148 U. Chi. Rev. light purpose of of the historic implicated by petitions ha- successive for federal

interests conviction, a state we conclude that beas relief from require peti- justice” federal courts to entertain such “ends of *16 prisoner supplements only his the constitutional tions where showing a colorable of factual innocence. This claim with Friendly by Judge proposed than more a dec- standard generally. ago prerequisite ade as a for federal habeas review Friendly Friendly, supra. Judge persuasively argued As requirement prisoner then, that the come forward a showing peti- of those innocence identifies colorable again justified seeking in relief in- who are from their tioners adopt this standard now to effectuate the carceration. We Congress of clear intent that successive federal habeas re- granted only cases, be in rare but that it should view should require. justice pris- when the of be available ends so showing may requisite by establishing oner make the that probative under the he has colorable claim of fac- evidence prisoner evidentiary tual innocence. The must make his argued showing though in even this case—the evidence —as may unlawfully guilt of have been admitted.17 S., years appeal. 456 U. after it was entered and affirmed on direct at See Moreover, system “possess primary 128. under our federal the States au- thority law,” and the defining enforcing “hold initial for the criminal responsibility rights. Federal vindicating constitutional intrusions sovereign power into criminal both States’ pun- state trials frustrate good-faith attempts to honor rights.” ish offenders their constitutional Bustamonte, Ibid., citing (1983) Schneckloth v. 263-265 J., costs, (Powell, concurring). Despite Congress those has continued appropriate cases, relief in “recognizing afford federal habeas need society safeguard against compelling a free for an additional an innocent Powell, Stone [person] liberty.” to suffer of an unconstitutional loss 491-492, n. 31. Friendly explained, Judge prisoner As not make a does colorable not, “by might not, showing showing of he or even innocence would have been in the claimed have been convicted absence evidence uncon-

C foregoing Applying case, standard we hold that concluding Appeals erred “ends of the Court justice” would be served consideration petition. evidence of The court conceded that the successive nearly overwhelming.” respondent’s guilt 2d, 742F. “was argued by respondent does not The constitutional claim any question guilt or innocence. The itself raise as to his Appeals should have dis- District Court and the Court 2244(b) petition ground under on the missed this successive denying prior judgment relief on this identical claim that the was final.18 Rather,

stitutionally Friendly, supra, prisoner at 160. obtained.” evidence, that, including probability light a fair of all the must “show (but illegally regard any with due alleged to have been admitted it) unreliability tenably wrongly claimed to have been ex- and evidence trial, only trier of the to have become available after the facts cluded or Ibid, (footnote guilt.” doubt of his would have entertained a reasonable omitted). Thus, prisoner requisite question whether the can make *17 guilt showing probative reference to all evidence of must be determined or innocence. 18 opinion opinion in dissenting Brennan’s mischaracterizes our Justice respects. plurality “implies that the that fed several The dissent states right prisoner eral habeas review is not available as a matter of to a who alleges petition properly preserved [constitutional in his a federal first added). Post, involves, opin (emphasis at 462 This case and our claim].” describes, only applicable petitions successive for fed ion the standard to Thus, pages the first six of the dissent have lit eral habeas relief. merely There, tle, any, if this ease. Justice Brennan relevance to general scope federal habeas cor length his views as to the reiterates apply a dis jurisdiction, explanation of how those views when pus no corpus petition presenting judge required to a habeas trict consider proceeding. previous merits in a federal habeas decided on the issue holding mistakenly reject asserts that we Sanders’ The dissent further be decided proper question successive review is should that the whether stated, Post, have we standard.” at 462. As under a ‘“sound discretion’ 2244(b) courts dis- gives the federal language of of course permissive since and petition, whether to entertain a successive cretion to decide gen- as a justice” phrase “ends have relied on the those courts Sanders may ap- be review identifying in which successive cases eral standard today ignores —isthe open the dissent left propriate. What Sanders —and 456

> correctly Appeals if had to decided en- Even the Court petition, we it tertain this successive conclude that respondent holding that in was entitled relief under erred (1980). Henry, 447 United States v. As Dis- Henry open question observed, left trict Court whether Amendment forbids admission evidence of an Sixth jailhoúse statements to a accused’s “placed informant who was proximity [made] in close but no effort to stimulate charged.” Id., conversations about the crime n. 9.19 beginning Our review of the line of cases with Massiah v. question U. States, 377 S. shows properly must, decided, as the District Court be answered negatively.

A concurring The decision Massiah had its roots two opinions Spano York, written v. New S. (1985). Following Moulton, Maine v.

See S. first-degree murder, his indictment for the defendant in Spano lawyer retained surrendered authorities. leaving police custody, Before the defendant in counsel cau- respond interrogation. prosecutor him to tioned The questioned persisting police in the face of defendant, request repeated repeated his speak refusal to answer and his lawyer. lengthy interrogation involved with his ultimately improper police tactics, and the defendant con- question inform court’s critieal of what considerations should decision previously decided will serve the that successive review of an issue “ends ” provide justice. today purports to some While the dissent substance justification” for Sanders standard requiring “good relitigation of a *18 decided, guidance no real provides previously claim its standard to federal claims confronted with successive relief. As to courts supra, standard, 445. the for a see need Moulton, In Maine v. again S. 159 we 474 U. reserved this situation where question, declining simply to reach the acts informant ” “ “participating] in ‘listening post’ without active as conversation and Id., replies.” n. particular prompting] Following trial at which his fessed. confession was admit- evidence, in the defendant was convicted and ted sentenced Agreeing atS., 316-320. with the to death. Court involuntary improperly was the confession and thus ad- in under evidence the Fourteenth Amendment, mitted concurring position Justices also took the that the defendant’s right interrogation. to counsel was the secret violated (Douglas, concurring). at 325 J., As Justice Stewart ob- person right served, an indicted has the to assistance of coun- throughout proceedings against sel him. Id., at 327. right subjected The defendant was denied that he when was “all-night inquisition,” during police ignored to an which his repeated lawyer. requests for his Ibid. adopted reasoning in

The Court Massiah of the concur- ring opinions Spano in that, held once a defendant’s Sixth right has attached, Amendment to counsel he is denied right agents “deliberately incriminating when federal elicit” lawyer. him in statements from absence his adopted S., at test, 206. The Court one rather than simply that turned on whether statements were obtained “interrogation,” protect persons in an accused from “‘indi- surreptitious interrogations rect as well con- as those jailhouse. in ducted this case, Massiah was more seri- ously upon imposed . . . because he did not even know that he government interrogation by agent.’” under Ibid., (1962) quoting United States v. F. Massiah, 2d 72-73 (Hays, dissenting part). in J., Thus, Court made clear interrogation investigative that it was concerned with techniques equivalent interrogation, that were and that it technique in so viewed the issue Massiah.20 defendant Massiah made the incriminating The statements in a con confederates, agreed one of secretly permit versation with his who had agents Government to listen the conversation over a radio transmitter. agents “engage instructed the confederate to Massiah conversation Massiah, crimes.” United States relating alleged 2d, 307 F. at 72 J., (Hays, dissenting part). *19 Henry, applied the the Court Massiah States jailhouse incriminating inform- statements made to a to

test Appeals in case The Court of found a violation of ant. engaged the informant had the defendant Massiah because developed relationship of trust and and “had conversations defendant] [the defendant] [the such that re- confidencewith incriminating S., information.” 447 U. at 269. This vealed holding Appeals reasonably that the Court affirmed, Court “deliberately that the Government informant used concluded incriminating [the position information from to secure de- his fendant] present.” Id., was not at 270. Al- when counsel questioned though defendant, had the informant not informant had “stimulated” conversations the defendant incriminating Id., to “elicit” information. at 273; order emphasized 9. The id., facts, see at n. Court that those “ surrep- to Massiah, like the facts amounted ‘indirect ” interrogation]’ S., of the defendant. U. at 273. titious applied Term, we the Massiah standard Earlier involving incriminating statements made under circum- case substantially of Massiah stances similar facts itself. Moulton, 474 S. 159 In Maine v. the defendant incriminating meeting statements with his accom- made police. plice, agreed cooperate During had with the who meeting, accomplice, who wore a wire transmitter with the conversation, record the discussed defendant the against repeatedly charges pending asked the him, defendant encouraged him the details of the crime, remind plan killing to describe his witnesses. defendant 4. The concluded that these investi- 165-166, and n. Court gatory techniques right denied the defendant his counsel Significantly, empha- pending charges.21 on the Court relationship between the defendant that, sized because observed, however, “[i]n- that where the defendant makes Court crimes, criminating pertaining to other as to which the Sixth statements attached,” “are, course, right yet has those statements Amendment n. at a trial of those offenses.” admissible *20 engaging informant, and the the informant’s the defendant upcoming “in active conversation about their trial certain incriminating elicit” statements from the defendant. participation Thus, n. 13. at the informant’s “in this equivalent interroga- conversation was ‘the functional Ibid, (quoting Henry, tion.’” States S., v. at concurring)). J., (Powell, As our recent examination of this Sixth Amendment issue primary in Moulton clear, makes concern the Massiah interrogation by investigatory line of decisions is secret tech- equivalent police niques interrogation. are the that direct Since “the Sixth Amendment is not violated whenever— happenstance incriminating or luck State obtains state- —the right ments from the accused after the to counsel at- has citing Henry, tached,” 474 U. United States v. supra, concurring), defendant not does (Powell, J., right by showing simply make out a violation of that that an through prior voluntarily, arrangement informant, either reported incriminating police. his statements to the Rather, police in- the defendant must demonstrate that the and their beyond merely listening, action, formant took some that was designed deliberately incriminating to elicit remarks.

B apparent Appeals It that is thus the Court of erred con- cluding respondent’s right that counsel was violated under of this Its error stem from the circumstances case. did not any disagreement appropriate with the District Court over question Henry, resolution of reserved but rather from implicit present open that case its conclusion did that question. That conclusion was based on a fundamental mis- namely, Appeals’ take, the Court failure to accord to the findings presumption state trial court’s factual of correct- 2254(d). expressly required by U. S. ness C. Patton v. (1984); Yount, 467 U. S. 1025 Mata, Sumner S. 539 Cullen had state court found that Officer instructed The for the of determin- only respondent purpose Lee to listen and robbery the identities the other ing participants of respond- The had solid evidence already murder. police Lee The court further found that fol- ent’s participation.22 time instructions, any ques- that he “at no asked lowed those respondent concerning pending charges, tions” of “spontaneous” he listened” to “only that remark made Lee only “unsolicited” statements. has this record was his comment re- any support in the crimes participation initial version of his spondent’s Without good.” holding any “didn’t sound too *21 to were not entitled the of findings presumption state court’s of 2254(d),23the Court focused on Appeals correctness under remark and of Lee’s interaction gave description that one is completely odds with the facts respondent with of view, the trial court. the Court by Appeals’ found slowly, and but Lee’s verbal inter- “[s]ubtly surely, ongoing [respondent’s] served to exacerbate [respondent] course with 2d, of mind.”24 742 F. at 745. After already troubled state findings, some of the trial court’s and revising ignoring thus the Court of concluded findings, Appeals other more relevant incrimi- “deliberately the elicited” police Ibid. This conclusion conflicts with the statements. nating respondent they fleeing as man Eyewitnesses had identified saw money. garage from the with armful respond Judge majority The did not to Van Graafeiland’s criticism that “dispense presumption that the State court’s the court could not with adequate explanation why as findings without an factual are correct (cita 2d, fairly supported the record.” 742 F. at 749 findings are not omitted). tions 24Curiously, Appeals expressed respondent the Court concern in a cell that overlooked the scene his crimes. placed shows, however, that fact was sheer coincidence. Nor For the record all any require police charged one perceive reason isolate do we be, scene, may he whatever it from his cell so that cannot view crime window.

decision of other state every and federal who reviewed judge and is clear error in record, light provisions 2254(d). §of intent

V of the Court of judgment reversed, and the Appeals case is proceedings remanded further consistent with this opinion.

It sois ordered. Chief BURGER, Justice concurring.

I with the Court’s agree fully This opinion judgment. Henry, case is clearly distinguishable from United States There ais vast difference between an “ear” in the cell and placing suspect’s placing a voice cell to conversation for the “ear” to encourage record.

Furthermore, abuse the Great Writ needs be curbed so as to if limit, put to, con- stop “sporting test” of criminal theory justice widely so practiced today. Brennan,

Justice with whom Justice Marshall joins, dissenting. I

Because believe that the Court of con- Appeals correctly of justice” cluded that the “ends be would served plenary *22 consideration of second federal habeas petition Henry, States United and that 447 264 U. S. (1980), directly case, controls the merits of this I dissent.

I—I v. States, Sanders 373 1, U. S. we held that a federal court refuse to entertain a successive may petition for habeas relief or its under 28 S. equivalent C. §2255 justice where “the ends of would not be served by reaching the merits of the The de- subsequent application.” cision a stated, whether to hear successive we petition, committed “to the sound discretion of the federal trial Id., at 18. We declined to define precisely “the judges.” phrase justice,” observing “cannot be too of that ends finely particularized.” at 17. argue

Today we should re- four of the Court that Members ject discretion” standard and contend Sanders’ “sound justice of of are reconsideration issues the ends served only previous petitions where the federal habeas raised showing prisoner a of factual innocence.1 can make colorable support n. 17. In of this standard con- Ante, at 454, plurality petitions, a advances re- of successive sideration theory corpus jurisprudence. habeas visionist of this Court’s plurality implies is not avail- The that federal habeas review right prisoner alleges in to a who his able as a matter preserved petition properly claim that his con- first federal commands. in violation constitutional viction was obtained plurality suggests prisoner entitled to Rather, the only relief if his interest freedom from unconstitu- outweighs interests the ad- tional incarceration the State’s Ante, 452-453, ministration of its criminal laws. plurality re- further intimates that federal nn. 14-16. §2254 is under 28 U. S. C. view of state-court convictions solely prevent predicated the incarceration of on the need to substantial] person, stating “[djespite [the an innocent upon imposes [federal States], Con- costs habeas review appro- gress afford federal habeas relief has continued to society ‘recognizing priate in a free for an the need ad- cases, against compelling [person] safeguard an innocent ditional liberty.’” Ante, an unconstitutional loss suffer (quoting n. Powell, 491-492, n. 16 Stone v. (1976)). Having implied that factual innocence is cen- thus generally, jurisprudence plurality to our habeas de- tral proper interpretation that it is fundamental to the clares justice.” plurality’s Neither standard for “the ends today rejects, implicitly explic either majority of the Court While *23 why appropriate explain plurality’s it to the itly, argument, I believe view is incorrect. theory petitions nor its habeas

consideration of successive of by statutory language, legislative supported is his- tory, precedents.2 our plurality asserts, ante, only 456-456, 18, at n. that it The addresses applicable petitions I

the standard to successive habeas and that mis- dictum, opinion suggesting eharacterize its that the Part contained plurality’s opinion, II-B the regarding purpose scope of the and the of the any significance. plurality correctly Great Writ has While the states that holding opinion, what have Part III Part would been of of its had that Court, directly governed only peti commanded would have successive tions, my protest gen methinks Brothers much and Sister too about their In eral discussion of the writ. to mask the fact that it fashions its order cloth, plurality attempts jus standard from to factual-innocence whole tify plurality’s pur that standard reference to the view of “the historic Ante, ante, 454; pose corpus.” see at of at also 448-452. Conse quently, upon plurality’s order to standard comment for successive I petitions, necessary plurality’s find it first to address the treatment of the Thus, general scope purposes pages of the Writ. Great “first six of the much to dissent” has as “relevance” this case as does Part II-B of the Ante, 455-456, plurality’s opinion. at n. 18. plurality precise

The for failing propose further chastises me defini- States, Sanders v. justice” tion of the “ends of standard 373 U. S. Sanders adhering by leaving and for decision whether petitions hear successive “sound trial discretion federal judges.” argues The plurality Sanders open at 18. left “the crit- question ical of what considerations should inform a court’s decision that previously jus- successive review of an issue decided will serve the ‘ends of Ante, 455-456, open, tice.’” n. Sanders question did leave that Sanders, but in a plurality suggests. different sense than the we ac- “ knowledged meaning phrase justice’... that the cannot ‘the ends finely particularized,” and, be too of this recognition fact, left it case- judges we to the “sound of federal trial discretion” to make by-ease justice require. plurality, determinations of what the ends standard, merely purporting Sanders’ while to elucidate “sound discretion” replace legal innocence. single would discretion with a standard —actual refined And, plurality more while asserts that there is a need for a Sanders standard, that, it years offers no evidence over the 23 since discre- decided, difficulty federal the “sound applying trial courts have had respect to successive so tion” standard or have abused their discretion with 2244(b) petitions interpretation of our longstanding revision warranted.

464 century, middle when we decided

At least since the (1942), Waley 101 Brown v. 316 U. S. Johnston, v. 443 it has been clear that “habeas lies S. Allen, 344 U. every any inquire in constitutional defect criminal into Mackey States, 667, v. 401 U. S. 685-686 trial,” (1971) J.), procedurally (opinion that not been Harlan, has exception defaulted, the narrow of Fourth Amendment with exclusionary supra. Powell, rule claims. Stone v. As we ago, enacting just two Terms there is “no doubt that stated Congress sought ‘interpose the courts be- 2254, federal guardians people's people, tween the States and the as rights protect people from federal unconstitutional —to (1984) (quoting Ross, action.’” Reed v. 468 U. S. (1972)). Foster, Mitchum 407 U. S. v.

Contrary plurality’s assertions, the Court has never general scope weighing of the writ the com- delineated the peting prisoner Our interests of the and the State. cases ad- dressing propriety of federal collateral review of constitu- appeal tional made at trial or on have balanced these error procedurally solely respect to claims that were interests Wainwright Sykes, g., See, defaulted in state court. e. v. (1982); (1977), Engle Isaac, v. 456 U. S. S. p. Recognizing Murray post, “the Carrier, v. proceedings integrity interest in the of its rules State’s finality judgments if . be undermined . . would and the its ignore procedural forfei- free to the federal courts were too supra, at 10, we held in court,” Ross, Reed v. tures state prisoner generally Wainwright Sykes, supra, a state v. prejudice in order to obtain show cause and actual fed- must procedurally defaulted claim. relief of a eral habeas supra. Engle But even as Isaac, we established See also v. Wainwright Sykes, cause-and-prejudiee standard emphasized supra, Allen, “rule” of Brown v. we petitioner supra, who claims he is “that the federal judgment pursuant final of a court in state viola- detained States Constitution is entitled to have the tion of the United independent own court make its determina- federal habeas way changed,” by claim ... no tion our of his federal special procedurally adoption rules for defaulted claims. Sykes, swpra, Waimuright v. at 87.3 *25 supra, plural- Furthermore, Stone v. the Powell, on which heavily ity regime relies, did not for establish new federal corpus prisoner’s under the interests habeas which are against weighed the interests and which State’s under he usually forfeits habeas review unless he can out a make color- showing of factual innocence or able unless the constitutional protect generally right accuracy he seeks to furthers the factfinding at trial. Stone v. the Indeed, Powell, Court expressly [was] stated that its “decision . . . not concerned scope authority with the of the habeas statute as for litigating generally.” constitutional claims n. 37 (emphasis original). simply Rather, the Court “reaf- firm[ed] exclusionary judicially rule is a created rem- edy personal right rather than a constitutional . . . and . . . utility emphasized] [exclusionary] the minimal rule” in proceedings. federal the context of collateral Ibid. Subse- quent uniformly cases have construed Stone v. Powell as creating only special rule Fourth for Amendment exclusion- ary repeatedly rule claims and have refused to extend its any federal review to limitations on other context. p. (declining ante, Kimmelman v. 365 to Morrison, extend right to Stone v. Powell to Sixth Amendment effective- principal allegation assistance-of-counsel claims where the representation inadequate is manifestation counsel’s 3 words, exception In we recognized other have to exercise of jurisdiction respect procedures in the unusual where federal cases appropriate; exception make this such an is similar to ab of state courts Harris, g., Younger e. See, 401U. (1971); stention rules. v. S. 37 Burford Co., (1943). However, judicially v. Sun Oil 319 U. S. like other cre jurisdiction it exceptions Congress, ated to federal conferred is nar exception “virtually obligation” ju exercise that unflagging row to to States, River Dist. v. risdiction. Colorado Water Conservation 424 U. S. claim); litigate adequately a Fourth Amendment

failure to (1979) (declining extend Mitchell, 443 to Rose v. of racial discrimination the selec- v. Powell claims Stone foremen); grand jury Virginia, 443 U. S. Jackson tion (1979) (declining to extend Stone v. Powell claims support prisoners of their the evidence convic- state permit of fact to a rational trier tions was not sufficient beyond required guilt re doubt, a reasonable as under find (1970)). Winship, 397 S. 358 simply plurality’s Despite intimations, never we have properly presented, review held that federal habeas either to con- constitutional claims limited nondefaulted accuracy protections that advance stitutional solely prisoners factfinding process or is at trial available showing a colorable of factual innocence. who can make out expressly contrary, re- we have stated on habeas On *26 petitioners’ inno- we have to deal with is not the view “what solely guilt question or whether their constitu- cence but Dempsey, rights preserved.” v. 261 have been Moore tional (1923) J.). (Holmes, Congress vested 87-88 has jurisdiction in over all habeas the federal courts cases petitioner “in claims he has been detained violation which States,” Constitution or laws ... of the United of the § 2241(c)(3), rights “[t]he constitutional of crim- and, U. S. C. granted guilty inal defendants are to the innocent and the ante, v. at 380. Thus: Morrison, alike.” Kimmelman ‘guilty’ punishment society’s highest if “Even were [some] in a of value ... constitution Members this priorities prefer, ordering would that is not the of Court forged by Constitution the Framers .... under the rights affect the Particular constitutional that do not factfinding procedures of cannot for that reason fairness possible justification be denied at the trial itself. What denying rights then can there be for vindication of such deny rights when state courts do on federal habeas those Powell, at trial?” Stone at 523-525 v. (Bren- dissenting). J., nan, certainly provide any jus- does habeas statute itself not scope limiting gen- of

tification, either for habeas review erally narrowly defining justice to or for the ends of make ha- petition only prisoners beas relief available on a successive showing of who can make a colorable factual innocence. respect general scope of review, With federal habeas § grants statutory authority 2241, which federal courts the corpus, guilt issue of no of writs habeas makes mention innocence or the need to balance interests the State pertinent prisoner. part, simply and the it states prisoner “[t]he writ habeas shall extend to a custody [h]e unless . . . violation of the Constitution laws or treaties of the United States.” U. S. C. 2241(c)(3). anything legislative history Nor in the does support Congress statute habeas view intended proposed by to limit review in the manner Court. years, than For more our construction of the habeas permit virtually statute review federal collateral all excep- nondefaulted constitutional claims—with the narrow tion, over of Fourth dissent, Amendment claims—without guilt competing reference actual or innocence or to the in- prisoner, unmistakably has terests of the State and been clear. Brown S. 443 Allen, See Several during period, Congress has times had the Court’s inter- pretation expressly brought through pro- to its attention bills *27 posing jurisdiction. of federal habeas drastic revision See (1981) pp. L. 91-92 Yackle, §19, Postconviction Remedies (describing past in relevant bills introduced several Con- gresses). Congress steadfastly Each of times, those refused significant any changes to in this make Court’s construction (“[S]ince jurisdiction. only Id., §19, of that 1948 the at 92 Congress [habeas] amendments to the statutes that the approved simply contemporaneous has have . . . tracked decisions”) omitted). (footnote Supreme The fact Court that Congress longstanding has of our been made aware construc- powerful undisturbed, it “lends tion and has chosen to leave viability.” Square support Niag- [its] D continued Co. Inc., Bureau, 409, ara Frontier S. Tariff regard specific question whether factual inno- With precondition peti- of a cence is a for review successive habeas 2244(b) § governs applications for tion, neither writs —which subsequent are filed of habeas to state courts that disposition prior petition, legisla- its federal habeas history, Governing the Rules Section 2254 tive nor Cases (hereafter Rules Govern- the United States District Courts ing 2254), support plurality’s position. Section Section 2244(b), part as amended in states relevant that a subsequent petition “need not be entertained . . . unless application alleges predicated on and is a factual other ground hearing adjudicated appli- not on the of the earlier that writ, cation for unless court... satisfied applicant application deliberately not on the earlier has newly ground or withheld the asserted otherwise abused added.) By very (Emphasis its terms, then, the writ.” 2244(b) merely they not informs district courts that need petitions; gives is, that the statute dis- consider successive petitions. discretion to hear such trict courts the larly, Simi- 9(b) Governing Rule of the Rules Section which pe- adopted were that a “second or 1976, states successive may judge allege if finds it tition be dismissed the fails grounds prior new or different for relief and the determina- grounds on if new different are or, tion was the merits alleged, judge petitioner finds that the failure of the grounds prior petition assert those constituted abuse added.) (Emphasis of the writ.” Congress clearly that courts continue to deter- intended may petitions they mine which successive choose not to hear ends-of-justice First, reference to the Sanders standard. nothing Reports accompanying in the House or Senate §2244 suggests Congress bill amended in 1966 *28 Rep. R. wished to abandon the standard. See H. Sanders (1966); Rep. Cong., No. 89th 2d Sess. S. No. 89th (1966). history Cong., legislative Second, 2d Sess. Governing adopting in Rules Section demonstrates that 9(b) Congress expressly existing Rule endorsed the case law subsequent governing petitions and cited Sanders.4 H. R. (1976). Rep. pp. Advisory No. 5-6 94-1471, Third, the 9(b) relating to Committee’s Notes Rule state that Sanders provides subsequent petitions the relevant standards for and indicate that the district courts have the discretion to refuse petitions: subsequent to entertain vexatious and meritless y. “In States, Sanders 373 U. S. dealing problem applica-

court, with the of successive tions, stated: “‘Controlling weight may given prior be to denial of application only for federal relief (1) ground presented subsequent appli- if the same adversely applicant was determined on the cation (2) application, prior prior determination on the (3) justice merits, and the ends of would not be served reaching subsequent application.’ the merits [Emphasis added].”

“Sanders, ^[28] C. §2244, [Rule 9(b)] make it has the to entertain a clear that the court discretion suc- application. cessive (b) important with the

“Subdivision is consistent corpus. purpose of habeas It does not well established 9(b) Report regarding While House Rule the discussion focuses portion writ, governs peti on of the Rule that abuse rather than claims, repeatedly allege tions that it is that the the same clear Committee 9(b) entirety existing law, particu intended Rule to conform its ease larly 94-1471, Sanders v. United States. See Rep. pp. H. R. No. 6-6 *29 remedy petitioner rightfully a which the is

eliminate to pointed in the court However, Sanders, entitled. out: corpus requires “‘Nothing of in the traditions habeas piecemeal litiga- to tolerate needless the federal courts only proceedings to whose tion, or entertain collateral delay.’ purpose harass, is or at 18. vex, to U. S. may the a instances, “. . . rare court feel need to grounds already petition alleging a that have entertain Sanders, 373 U. S. been decided on merits. at 1, use of be However, 16. abusive the writ should discour- frequent enough aged, and of abuse re- instances are to quire dealing example, a a means them. For already application, successive decided on the merits, may hope getting be submitted before a differ- judge multijudge courts. . . This ent . subdivision is screening petitions so aimed at out the abusive ... get quicker petitions more can and meritorious fuller p. C., consideration.” Advisory gave prob- no Committee indication that 9(b), §2244(b), guilty lem Rule seeks to correct is that of a prisoner repeated seeking federal same con- review the apparent Rather, stitutional claim. it is that the Rule at- tempts only problem remedy posed vexatious petitions. explicitly subsequent meritless The Committee though, contemplated, [subse- nonabusive, “meritorious quent] petitions” “ful[l] would receive consideration.” Ibid. give cases, our is fair

When we review habeas task “to ef- by Congress.” jurisdiction fect to the enacted habeas (opinion Brown at 500 Allen, Frankfurter, J.). respect petitions, giving With successive “fair Congress effect” to intent to construe “the ends of justice” as Sanders did—to mean that it is within sound pe- discretion of the court hear meritless abusive, refuse petitions prisoner in which titions and to hear advances potentially good justifi- provides meritorious claim returning cation for to court a second time with the same claim.5 respondent alleged potentially

In the instant case, meri- torious Sixth Amendment claim. He also advanced a com- plete justification returning to federal court a second time with this claim. Between his first and second federal habeas petitions, Henry, this Court decided United States v. substantially U. S. 264 a case which the facts were similar to the facts of case6 and which we *30 prohibition against elaborated on the Sixth Amendment’s government right interference with an accused’s to counsel, prohibition previously recognized a that we had in Massiah v. States, 377 U. S. 201 and Brewer v. Wil- Henry, liams, U. S. 387 The intervention of supra, appropriate analysis clarified the for Sixth Amend- respondent’s; Appeals ment claims like thus the Court of did by granting not abuse its discretion reconsideration of re- spondent’s dispositive legal constitutional claim under the standard.7 agree plurality

5 1 with the that actual innocence constitutes a sufficient justification returning to court a second time with the same claim. I do agree, though, prisoner’s inability that a showing to make a of actual an negates good justification, innocence otherwise respondent’s. such as 6The facts of this case demonstrate the arbitrariness of the Court’s rule. petitions The initial respondent federal habeas filed Henry pre virtually sented identical claims. Because our decision in United States Henry may have altered the law respondent’s prior of the Circuit which failed, petition only just it respondent’s claim be reviewed under proper constitutional standards. plurality’s presents factual-innocence signifi standard also some problems. First, cant institutional this requires standard the federal capacity courts to function in much the same as the state fact —the trier of rough federal courts must make inno question guilt a decision on the requirement central cence. This diverts the federal courts from purpose were of habeas review —the evaluation of claims that convictions Second, what obtained in violation of the it is unclear Constitution. prisoner plurality’s relevance the in which standard would have in a case capital case. alleges Guilt sentencing phase constitutional error I—II—I Appeals the Court of erred re- The Court holds that respondent’s petition. spect Accord- to the merits Appeals ing Court, the Court of failed to accord §2254(d)’s presumption of correctness to the state trial findings respondent’s “at cellmate, Lee, no time court’s any questions” respondent concerning pending asked charges, only “sponta- and that Lee listened to App. statements, As a re- neous” “unsolicited” 62-63. Appeals sult, concludes, the Court the Court of failed rec- ognize presents question, case reserved in Henry, swpra, whether the Sixth Amendment forbids admission into evidence of accused’s statements to jailhouse “placed proximity informant who close but [made] no effort stimulate conversations about the crime charged.” disagree n. 9. I with the Court’s Appeals’ characterization of the Court of treatment of the findings consequently, disagree and, I state court’s with the presents post” “listening that the case Court instant question. *31 simply found that did not ask

The state trial court Lee respondent any questions crime direct about the for which respondent App. court was incarcerated. 62-63. The trial significance only considered the of this fact under state interpreted precedents, require affirma- which the court to “interrogation” by prerequisite a tive the informant as a to did at 63. The court not indi- constitutional violation. it or cate whether referred to a Fifth Amendment to Sixth “interrogation” pre- identifying as a Amendment violation merely that “the to a it stated violation; condition utterances by [respondent] unsolicited, made to Lee were and volun- rather, context; only there is or innocence is irrelevant that a decision community representatives prisoner whether the 'made shall live of then, plurality’s test Presumably, applicable die. would not be such claims.

tarily not violate defendant’s and did Constitutional made rights.” Ibid. disregard Appeals of did the state court’s

The Court respondent questions finding Lee asked no direct re- that Appeals garding expressly crime. Rather, Court of finding, accepted Henderson, Wilson v. 742 F. 741, 2d 1984)(“[e]ven (CA2 accepting that Lee did not ask Wil- .”), questions any that, direct . . but concluded mat- as a son Henry, law, the deliberate elicitation standard ter supra, encompasses supra, Massiah, more other, subtle stimulating incriminating than admissions overt forms suggested police questioning. The court that the deliber- ately respondent placed in a cell that overlooked the scene of hoping trigger inculpatory that the crime, view would respondent’s The comment cellmate.8 court also ob- respondent questions, that, while Lee asked no Lee served concerning respondents’ nonetheless stimulated conversation Garage robbery in the Star Taxicab and murder re- role marking “ respondent’s exculpatory story did not ‘sound ” good’ up and that he had too better come with better one. Appeals Thus, 742 F. 745. the Court of 2d, concluded present case did not the situation reserved Henry, incriminating where an accused makes an remark jailhouse hearing informant, within the who no “makes charged.” effort stimulate conversations about the crime Instead, 447 U. n. the court determined virtually indistinguishable Henry. to be from case guarantees an accused, Sixth Amendment at least charges, right rely after the initiation formal on as the “medium” between himself and the counsel State. (1985). Accordingly, Moulton, Maine v. S. “imposes the Sixth Amendment on the State an affirmative *32 obligation respect preserve and the accused’s choice to Appeals “[a]s The Court noted that soon as Wilson arrived and upset messing garage, he became and stated that ‘someone’s viewed ” 2d, me.’ 742 F. at 745. [the counsel],” id., at and therefore seek assistance particular “[t]he action state whether determination right agents to . . . must be the accused’s counsel violates obligation.” light sure, at 176. To Id.,, be made of this “by whenever, luck or Amendment is violated the Sixth incriminating happenstance,” statements the State obtains right has It after the to counsel attached. from the accused incriminating however, when “the State obtains violated, by knowingly circumventing right the accused’s statements present in a confrontation between the ac- to have counsel Ibid, omitted). (footnote agent.” As we and a state cused Henry, explained not waived his where the accused has government knowingly right circumvents the counsel, “deliberately right elicit[s]” it to counsel where defendant’s inculpatory admissions, is, “inten- S., likely accused] tionally creat[es] [the induce situation incriminating make statements without assistance at 274. Id., counsel.” Henry, had we found that Federal Government “de-

liberately Henry incriminating from elicited” statements following jailhouse inform- on the circumstances. The based apparently ant, Nichols, had followed instructions to obtain directly Henry questioning without and without information initiating concerning charges pending conversations Henry. against rejected argument We the Government’s Henry crime, initiated the discussion of his no that because pointed Amendment violation had occurred. We out Sixth States, under Massiah v. United 377 U. S. it pointed questions the informant is irrelevant whether asks “merely engage[s] general conversation about the crime n. 271-272, Nichols, it.” 447 U. we about passive listener; ... he had ‘some con- noted, “was not Henry’ jail Henry’s while he was versations with Mr. product incriminatory were ‘the of this statements conversa- tion.’” at 271. *33 deciding

In that Nichols’ role in these conversations amounted to elicitation, deliberate we also found three other important. paid any factors Nichols First, was to be for produced information he and thus had incentive to extract inculpatory Henry. admissions from 270. Second, Henry acting was not aware Nichols was an inform- as ant. Ibid. “Conversation stimulated such circumstances,” “may observed, we elicit information that an accused would intentionally persons reveal to known to be Government agents.” Henry custody Id., at Third, 273. was in at the spoke significant, time he with This Nichols. last fact is we “custody imposes pressures stated, because on the accused may bring [and] play confinement into subtle influences that particularly susceptible ploys him will make to the of under- agents.” Id., cover Government at 274. We concluded that by “intentionally creating likely Henry a situation to induce incriminating make statements without the assistance of Henry’s counsel, the Government violated Sixth Amendment Ibid, (footnote omitted). right to counsel.” Henry, case, the instant as in the accused was incarcer- “susceptible ploys ated and therefore of under- agents.” cover Ibid. Like Nichols, Government Lee was a usually informant, secret received consideration for the serv- police, he ices rendered the and therefore had an incentive to produce police hoped he the information which knew the obeyed obtain. as Nichols had Lee done, Just instructions question respondent report police any not to respondent presence statements made Lee’s about question. App. And, Nichols, the crime like Lee en- couraged respondent by conversing to talk about his crime subject days him on over course of several by telling respondent exculpatory story that his would not anyone unlike convince without more work. However, Henry, disturbing respondent’s situation visit from rather than a conversation with the brother, informant, catalyst seems to have the immediate been Ante, 440; Henderson, to Lee. Wilson confession *34 (SDNY, 1983), App. Mar. to Pet. for Cert. Civ. sequence might appear from this of it events 25a-26a. While story regarding respondent’s and his that Lee’s comment willingness respondent general converse with about the respondent’s of admis- not the immediate causes crime were requires I think that the deliberate-elicitation standard sion, government course of behavior. consideration entire intentionally it created a situation which was The State respondent incriminating would make state- forseeable Henry, of counsel, without the assistance ments respondent overlooking assigned to a cell the scene of 274—it designated respond- a informant to be the crime and secret avoiding ques- while direct informant, ent’s cellmate. developed relationship a of cama- tions, nonetheless cellmate respondent encouraged him to talk his raderie with about by respond- coup grace While the de was delivered crime. groundwork respondent’s confession brother, ent’s Clearly the actions had a suffi- laid the State. State’s guilt of nexus with admission constitute cient meaning Henry. I elicitation within of would deliberate judgment Appeals. of the Court affirm Stevens, dissenting. Justice question is confronted with the

When district court justice” would be served entertain- whether the “ends ing petition corpus raising prisoner’s for habeas state petition rejected prior for the claimthat has on a federal been may properly one be considered relief, same of the facts petitioner has advanced a “colorable claim of is whether agree I that this is innocence.” But Justice Brennan every just disposition of an essential element of a succes- not petition. specifically, I that the District More believe sive entertaining petition its Court did not abuse discretion although I this is one of would also conclude that case, prop- in which Court could have those close cases the District erly that a review of the same contention was decided second decision in States required despite intervening Henry, 447 U. S. 264

On I merits, agree with the II analysis Part dissent. I Accordingly, also would Justice Brennan’s affirm the judgment the Court Appeals.