*1 ZANT, SUPERINTENDENT, MсCLESKEY GEORGIA AND CLASSIFICATION CENTER DIAGNOSTIC Argued October April No. 89-7024. 1990 Decided *3 Kennedy, J., opinion Court, Rehnquist, delivered the in which J., White, O’Connor, Scalia, Souter, JJ., C. and joined. and Mar- shall, J., dissenting opinion, a Stevens, filed in which Blackmun and JJ., joined, post, p. 506. argued Boger petitioner.
John Charles the cause for With Stroup, him on the Robert H. briefs were Julius L. Cham- George III, III, bers Richard H. Burr Kendall, H. An- and thony Amsterdam. G.
Mary Attorney Beth Westmoreland, Senior Assistant Gen Georgia, argued respondent. eral of the cause for With Attorney her on the brief were Michael Bowers, J. General, Deputy Attorney B. Hill, Jr., William General, and Susan Boleyn, Attorney V. Assistant Senior General.* Capital *Mark E. Olive Representation filed brief for the Alabama urging Resource Center et al. as amici curiae reversal. Scheidegger
Kent filed a brief the Legal S. for Criminal Justice Founda- urging tion curiae as amicus affirmance. opinion of the Court. delivered Kennedy
Justice defines the circumstances of the writ The abuse doctrine presented entertain a claim decline to federal courts which subsequent petition a writ for the first time in a second McCleskey corpus. in a second Petitioner Warren of habeas petition presented claim under Massiah federal habeas (1964),that failed include he States, 377 S. United U. Appeals petition. Court for the in his first federal of the Massiah claim that assertion Eleventh Circuit held Though analysis differs the writ. our this manner abused peti- Appeals, agree we that the from that of Court judgment. we affirm writ, and tioner here abused I—I McCleskey armed, all a Geor- men, other robbed three gia of the robbers in 1978. One shot furniture store duty policeman in the entered the store who killed an off police McCleskey to the confessed midst the crime. robbery. participated When on trial for both he McCleskey robbery renounced his however, murder, and the denying taking with an alibi all the stand after confession testimony, McCleskey’s prose- To rebut involvement. jail occupied next Evans, who had cell cution called Offie McCleskey McCleskey’s. admitted Evans testified robbery during shooting and boasted that he the officer *4 way in the a out the store even face of shot his would have policemen. dozen shooting,
Although further direct no one witnessed supported McCleskey’s guilt of the circumstantial evidence eyewitness that ran from the An testified someone murder. robbery. carrying pearl-handled pistol soon after store McCleskey earlier had stolen that Other witnesses testified pistol pearl-handled caliber as the bullet that of the same McCleskey’s Wright, accom- one killed the officer. Ben McCleskey during plices, crime carried a confirmed matching handgun of the the caliber fatal bul- white-handled Wright McCleskey shooting let. also testified that admitted Finally, prosecutor McCleskey’s the officer. introduced participation robbery. confession of in the jury McCleskey In December 1978, the convicted of mur- der and sentenced him to death. his conviction, Since Mc- Cleskey pursued has direct and collateral remedies for more procedural history than a decade. We describe this in detail, proper understanding both for a of the case and as an illustra- allegations tion of the context in which of abuse of the writ arise. appeal Supreme Georgia,
On direct
to the
Court of
McCles-
key
grounds
summary McCleskey’s
raised six
of error. A
appeal,
claims on direct
as well as those he
asserted
each of
proceedings,
Appendix
his four collateral
is set forth in the
opinion,
portion
appeal
infra, at 503. The
rele-
purposes
McCleskey’s
vant for our
involves
attack on Evans’
testimony. McCleskey
rebuttal
contended that
the trial
allowing
[McCleskey’s]
court
“erred
evidence of
oral state-
admitting
[Evans]
ment
the murder made to
in the next cell,
prosecutor
deliberately
because the
had
withheld such state-
(1963).
Brady Maryland,
ment” in violation of
affirmed
conviction and sentence.
Ibid. We
his
(1980).
Georgia,
McClesky
v.
S. 891
tiorari.
postconviction proceedings.
McCleskey
In
then initiated
corpus
January
petition for
re
he
state
filed
challenges
petition
his mur
23
to
raised
lief.
amended
Appendix, infra,
sentence.
der conviction and death
See
testimony.
claims concerned Evans’
at 503. Three of the
McCleskey
his due
that the
violated
contended
State
First,
Giglio
process rights
States,
405 U. S.
under
v. United
drop pending
(1972),by
agreement to
to disclose an
its failure
cooperation
against
escape charges
for
Evans in return
his
McCleskey
testimony. App.
his
Second,
reasserted
20.
rights by
process
Brady
due
claim that the
violated his
State
withholding
to
he made Evans
of the statement
the deliberate
McCleskey alleged
jail. App.
that ad
Third,
21.
while
testimony
Amendment
the Sixth
violated
mission of Evans’
States,
right
United
in Massiah
to
as construed
counsel
theory, “[t]he
supra.
into evidence of
introduction
On this
[his]
in a situation created to
[Evans],
to
elicited
statements
incriminating
[McCleskey] make
statements with
induce
[McCleskey’s]right
counsel,
violated
out the assistance
to the
the Sixth Amendment
Constitution
counsel under
App. 22.
the United States.”
corpus hearing, Evans testified
At the state habeas
investigating
agreed
the murder
one of
detectives
speak
the federal authorities
a word on his behalf to
about
pending against
charges
him. The state ha-
certain federal
parte
ex
beas court ruled that the
recommendation did not
implicate Giglio, and it
relief on all other claims. The
denied
McCleskey’s
Georgia
application
Supreme
denied
for
Court
probable
peti-
we
cause,
denied his second
certificate of
McCleskey Zant,
of certiorari.
S.
tion for writ
U.
McCleskey filed
first
In
federal habeas
December
corpus
District
the United States
Court
Georgia, asserting
grounds
for relief.
Northern District
*6
Appendix,
petition
infra,
See
504-505. The
al
failed to
lege
Giglio
the Massiah claim, but it did reassert
and
Brady
Following
hearings August
claims.
extensive
October
the District Court held that the detective’s
promise
statement to Evans was a
of favorable treatment,
Giglio.
promise
and that failure to disclose the
violated
Mc
(ND
1984).
Cleskey
Supp.
Zant,
v.
380-384
F.
Ga.
testimony
The District Court further
that Evans’
held
trial
may
jury’s
charge
have affected the
verdict on the
of malice
premises
granted
murder. On these
Id.,
it
relief.
at 384.
Appeals
grant
The Court of
reversed the District Court’s
(CA111985).
McCleskey Kemp,
of the writ.
753F. 2d 877
promise
The court held that the State had not made a
contemplated by Giglio,
any
Evans of the kind
and that in
Giglio
event the
error would be harmless.
McCleskey postconviction by filing continued his attacks corpus second state habeas action in 1987which, as amended, Appendix, contained five claims for relief. See at 505. infra, again testimony, alleg- One of the claims centered on Evans’ ing agreement that the State had an with Evans that it had hearing failed to disclose. The state trial court held a petition. Supreme Georgia dismissed the The Court of de- McCleskey’s application probable nied for a certificate of cause. July McCleskey
In filed a second federal habeas ac- tion, the one In we now review. Court, District McCles- key including challenge asserted seven claims, a Massiah testimony. Appendix, the introduction of Evans’ See infra, McCleskey presented at 506. had claim, Massiah it will be alleged recalled, his first state habeas action when he the conversation recounted Evans trial had been “elic- him in a to induce” to make an incrimi- ited situation created nating the assistance of The statement without counsel. present petition a Massiah did not claim. The first federal proffered the Massiah claim the second federal basis for 21-page signed statement that Evans was a made to Department August 1, 1978, Atlanta Police on two weeks department began. the trial furnished the docu- before McCleskey filed his one month before he second fed- ment *7 petition. eral jailhouse pretrial conversations that statement related McCleskey and that Evans overheard be-
Evans had with Dupree. By McCleskey tween and Bernard statement’s reported jail- McCleskey participated in all the terms, own testimony with Evans’ cell conversations. Consistent McCleskey admitting reports and boast- trial, the statement posed ing recounts that Evans as about the murder. It also McCleskey Wright’s uncle and told he had talked with Ben robbery Wright and the murder. about petition, McCleskey In federal habeas asserted his second acting proved in Evans “was direct con- that the statement during incriminating cert with officials” conversa- State “deliberately McCleskey, that the authorities tions with McCleskey’s inculpatory elicited” admissions violation of right Massiah v. Sixth Amendment to counsel. United pp. Among Statеs, 1 Tr. Exh. 11-12. S., U. 206. responses, Georgia contended that Mc- other State Cleskey’s presentation a Massiah claim for the first time petition was an abuse of the in the second federal writ. 28 9(b) §2254 § 2244(b); Governing Rules Rule U. S. C. Cases. hearings July
The District held extensive and Au- Court jailers gust focusing arrangement on the had made assignment Evans’ cell 1978. Several witnesses denied placed McCleskey by design had been next to that Evans conversations or obtain statements instructed overhear McCleskey’s key Ulysses McCleskey. witness was from Worthy, jailer County during at the Fulton Jail the summer McCleskey’slawyers Worthy of 1978. contacted after de tective testified Worthy’s the 1978Evans statement was taken in Worthy’s office. The District Court characterized testimony self-contradictory.” as “often confused and Mc (ND Cleskey Kemp, 1987), No. Ga., C87-1517A Dec. 23, Worthy App. 81. testified that someone at some time re quested permission McCleskey’s to move Evans near cell. concerning why, He contradicted himself, however, when, and whom Evans was moved, and about whether he over investigators urging engage McCleskey heard Evans to Id., conversation. at 76-81. granted
On 23, 1987, December the District Court McCles- key upon relief Id., based violation Massiah. at 63-97. strong The court stated that the Evans statement “contains relationship indication of an ab initio between Evans and Id., authorities.” In addition, at 84. the court credited Worthy’s testimony suggesting police had used incriminating McCleskey. Evans to obtain information from portions Worthy’s Based on the Evans statement and tes- *8 timony, jail the District Court found that authorities had placed adjoining McCleskey’s pur- Evans in the cell “for the pose gathering incriminating of information”; that “Evans probably approach McCleskey was given in how coached and general public”;
critical facts unknown to the that McCleskey eavesdropped Evans talked with on McCles- key’s reported conversations others; with and that Evans what he had heard to Id.,, the authorities. at 83. These findings, in the view, District Court’s established a Massiah violation. granting rejected
In relief, the District Court argument McCleskey’s State’s that assertion of the Massiah petition claim for the first time in the second federal consti- McCleskey tuted an abuse of the The writ. court ruled that deliberately raising did not abandon the claim after it in his petition. first state habeas “This not case,” is a the District proof petitioner has reserved his reasoned, “where Court petition.” deliberately Id., at his claimfor second withheld that when McCles- also determined The District Court 84. petition, key did not know about he filed his first federal identity 21-page document or the of Wor- Evans either the thy, evidence for the first to discover the that the failure [McCleskey’s] petition inexcusable not due to “was federal neglect.” Id., at 85. holding that the District reversed,
The Eleventh Circuit by failing McCleskey’s to dismiss abused its discretion Court F. the writ. 890 2d 342 claim as an abuse of Massiah agreed Appeals that the District Court with Court deliberately aban- that he did not must “show [in it the first his failure to raise claim and that don the proceeding] ne- not due to inexcusable was federal habeas Accepting glect.” the District Court’s Id., at 346-347. McCleskey stage findings knew nei- that at the first identity nor the the Evans statement ther the existence of Worthy, the District Court “miscon- held that the court meaning Id., stru[ed] deliberate abandonment.” McCleskey included a Massiah claim 348-349. Because petition, petition, dropped it in his first federal state his first petition, in his second federal he reasserted it and then pursue having knowing the claim after choice not “made prima showing previously” facie it that constituted raised 2d, 890 F. at 349. The court abandonment.” “deliberate alleged of the Evans concealment further found State’s simply catalyst it because “was statement irrelevant vigorously” pursue the Massiah claim more caused counsel of a Massiah vi- the existence and did not itself “demonstrate McCleskey Id., The court concluded olation.” 350. *9 why presented not have discov- no reason counsel could had Finally, Worthy Ibid. the court ruled that earlier. ered justice McCleskey’s not fall within the ends of claim did any exception doctrine because to the abuse-of-the-writ 477 may Massiah violation that have been committed would have been harmless error. 2d, 890 F. at 350-351.
McCleskey petitioned this Court for a writ of certiorari, al-
leging numerous
errors
the Eleventh Circuit’s abuse-of-
analysis.
granting
petition,
the-writ
In our order
we
requested
parties
following
address
additional
question: “Must the State demonstrate that a claim was de-
liberately
petition
abandoned
an earlier
for a writ of ha-
corpus in
beas
order to establish that inclusion of that claimin
subsequent
constitutes abuse of the writ?”
(1990).
II parties agree government The that the has the burden of pleading government abuse of writ, and that once the proper petitioner makes a submission, the must show that he seeking has not abused thе writ habeas relief. See Sand- (1963); States, ers v. United 1, U. S. 10-11 Price v. John- ston, 334 U. 266, S. Much confusion exists though, determining on the standard for when a Although abuses the writ. the standard is central to the proper many corpus determination of federal habeas actions, we have had little occasion to define it. Indeed, there is truth to the observation that we have defined abuse of the oblique way, through in writ dicta and denials of certiorari petitions stay applications. Wainwright, See Witt (1985) dissenting). Today U. S. J., (Marshall, give subject begin by we our careful consideration. We tracing development the historical of some of the substantive procedural aspects writ, and then consider the apply standard for abuse that district courts should in actions seeking corpus federal habeas relief.
A Judiciary § Act of ch. 114, Stat. 81-82, em- powered corpus federal courts to issue writs of habeas prisoners custody, authority “in under or colour of the
478 early of our new federal In the decades
the United States.”
scope
English
system,
the substantive
of
law defined
common
(1830).
parte Watkins,
193,
Pet.
201-203
3
Ex
the writ.
challenge
prisoners
confinement
use the writ to
could
Federal
jurisdiction,
by
imposed
ibid., or deten-
lacked
a court that
proper legal process,
see Ex
Executive without
tion
(1856).
parte Wells,
Confronting the reach line of (1942), Waley “the Johnston, 316 U. S. v. writ, concept jurisdiction by openly then discarded Court — anything a touchstone of the else—as a fiction than more acknowledged availability rеview, and of federal ‘disregard the con- for claims of review is available such rights the writ is the accused, and where stitutional only Wainwright rights.’” preserving means of effective supra, Waley (quoting Johnston, Sykes, supra, at 79 104-105). exception With the of Fourth Amendment viola given opportu tions that a has been a full and fair nity litigate Powell, court, state Stone v. 428 U. S. *11 (1976), today appears dispositive 495 the writ to extend to all presented proper procedural constitutional claims man (1953);Wainwright Allen, ner. See Brown 344 v. U. S. 443 Sykes, supra, v. at 79. procedural requisite
One is that a not lead to an origins of the abuse writ. We must next consider the and meaning of that rule.
B
judicata
At commonlaw, res
did not attach to a court’s de-
“[A]
discharge
nial of habeas relief.
refusal to
on one writ
[was]
Bailey,
not a bar to the issuance of a
1
new writ.” W.
(1913)
Special
Corpus
(citing
Habeas
cases).
and
206
Remedies
application
“[A]
every
be
renewed
could made to
judge
judge
realm,
other
or court in the
and each court or
question
prisoner’s right
was bound to
the
consider
discharge independently,
and not to be influenced
previous
refusing discharge.”
decisions
W. Church, Writ
(2d
1893) (hereinafter
Corpus
p.
§386,
of Habeas
Church).
570
ed.
parte
g.,
See,
Kaine,
e.
Ex
As review became available from decision ha- refusing discharge prisoner, began ques- beas courts validity continuing allowing tion common-lawrule petitions. endless successive Church 602. Some courts re- jected holding rule, common-law a denial of habeas relief
480 McLendon, 62 See, 598, e. Ga. judicata. g., Perry res Mead, 518, 30 S. 515, McMahon D. (1879); 603-605 Heller, 517, Ex 146 Wis. (1912); parte N. W. (1911). Others a middle adopted position 131 N. W. of res endless successive judicata extremes between circuit in Ex parte Field’s on opinion Justice petitions. (CC this balance. 1889), exemplifies 40 F. SD Cal. Cuddy, “[Wjhile . . . apply, of res does not judicata the doctrine is made second application whom the officers before ap- fact that a previous take consideration the may into refused; officer and made tо another had been plication fact a refusal may justify instances that some action of the court or on justice the second. The de- be affected to some naturally second will application to whom the the court officer by the character gree *12 of the con- made, first was and fullness application I I refer, . . In what have said to it. . sideration given is made course, upon where second application to cases might pre- which have been the same presented, facts is different sented, entirely on first. The question have changed when events occurring subsequent as in fact a new present situation so In case for there present application consideration. exist first no facts which did not when the was are new that in I am of the such a case a opinion ... presented. Id., heard . . . .” second should not be application 65-66. (NH 1906) (second Moebus, Ex 148 F. 40-41 parte
Cf. in substantial change disallowed “unless some intervened”). circumstances had validity confusion over the continuing We resolved the in courts, at least for federal rule, Salinger the common-law Loisel, Doo v. (1924), Wong S. United 265 U. States, 265 These decisions reaffirmed U. S. cor- not “to a decision on habeas apply res does judicata Loisel, Salinger refusing discharge prisoner.” pus supra, States, Doo v. United Wong 230; see supra, at 240. They however, recognized, availability of appellate review a modification of the required common-law rule allow- endless ing As we Salinger: applications. explained
“In early times when a refusal to was discharge not open to appellate review, courts and were judges accustomed to exercise an independent on each judgment successive application, regardless number. But when a right to an review was appellate the reason given for that practice ceased and the came practice to be materially . . . .” changed S., at 230-231. on opinion Ex parte
Relying Justice Field’s Cuddy, we an- nounced that second and subsequent should petitions be of in
“disposed the exercise of a sound judicial discretion guided and controlled aby consideration of whatever has a rational on the bearing propriety of the discharge sought. the matters which Among be may considered, (a) and even given are controlling weight, the existence of another such as remedy, a right оrdinary course to (b) an appellate review in the case, criminal a prior refusal on a discharge like application.” S.,U. at 231.
Because the Salinger lower court had not disposed of the subsequent application habeas corpus by reliance on dis- missal of the prior the decision application, did not present an *13 opportunity to the doctrine of apply abuse of the writ. Doo did S.,U. at 232. Wong the present question. There, the District Court had dismissed on res judicata grounds second petition due claim containing process that was raised, but not in the first federal argued, habeas petition. The petitioner “had full to offer opportunity proof [his due process at the on the hearing claim] first petition,” and he of- fered “[n]o reason for not the presenting proof the out- Doo, set.. . .” Wong S.,U. at 241. The record of the first petition did not contain proof the due process claim, show[ed] [was] in briefs it there and the “what said of
but Ibid. In these circum- it all the time.” that was accessible petition. upheld of the second We stances, we the dismissal judicial controlling “according discretion, a sound held that to given prior weight to Ibid. the refusal.” must have been judicata rejected in a sense as a res strict basis while we So dismissing clear action, we made that the a later habeas for prior adjudication relevance to the exercise of bore vital determining whether consider the in the court’s discretion petition. (1948),the next decision Johnston, 334 U. S.
Price v. different context from Salin- line, arose a somewhat petitioner’s Wong ger Price, fourth the habeas Doo. In arguably petition alleged least, was neither that, a claim petition explicit nor inferable from the a former the basis of Ap- alleged. and Court of The District Court facts earlier hearing petition peals on the sole without dismissed the ground the earlier ha- not raised one of that the claim was reasoning that remanded, We reversed beas actions. development proper “precluded of the issue the dismissal corpus allegedly writ.” 334 use of the abusive the plead explained must an that the State at 293. We S.,U. particularity, and that the burden then abuse of the writ with presentation petitioner of the new claim shifts to to show Id., at 292. The District Court does not constitute abuse. affording petition the the without erred because it dismissed raising explain pеtitioner opportunity the for basis proper inquiry gave the claim late. We directions may inadequate, explanation the court If “is trial court. proceedings.” Ibid. further without dismiss adequate petitioner “presents] for not mak- reasons But if a just allegation ing make it fair and earlier, reasons which delay,” given he must be for the trial court to overlook hearing. develop Id., opportunity in a these matters considering had whether at 291-292. Without remanded the case. writ, we abused *14 Price that abuse-of-the-writ Although recognized princi- file petitioner’s ability limit it ples repetitive petitions, dicta on the standard touching also contained for abuse that Price stated to contradict point. that “the appeared refusals to three can have bear- prior discharge petitioner no on the made weight disposition to be of the new matter ing Id., in the fourth at 289. petition.” raised This proposition significance ignored appellate jurisdictional changes, 479-480, supra, see as well as the disfavor we general had Doo Salinger and Wong toward endless expressed repeti- tive It did not even with comport petitions. language Price itself which that certain recognized circumstances new claims raised for the first time a second or subsequent petition should not be entertained. As will clear, become Price has been in our quoted portion ignored later decisions. Price decision,
One month after the enacted Congress leg- islation, which for the first time addressed the issue of repeti- tive federal habeas corpus petitions:
“No circuit or district shall be to enter- judge required tain an for a application writ of habeas corpus inquire into detention of a ato person pursuant judgment of a court of the United if States, any State, or of it that the appears legality such detention has been de- termined or court of judge the United States on a for a prior writ of habeas application corpus the peti- tion no new not theretofore presents ground presented determined, and the or court is satisfied that judge the ends of will not be served justice by such inquiry.” (1964 ed.). §2244 28 U. S. C. §
Because allowed a district court to dismiss a successive that no new not “present[ed] ground theretofore pre- determined,” sented and one concluded, have might by nega- tive implication, denied to dismiss Congress permission new for relief. an in- any pеtition alleged grounds Such would have terpretation superseded judicial principles *15 in a prior that claims not raised or litigated peti- recognizing in later constitute abuse. raised a could, petition, tion when the 1948 made clear that Note to statute But the Reviser’s did not intend the new section matter Congress as general evolution of habeas principles, the judicial to disrupt ed.) (Reviser’s (1964 Note), and we confirmed §2244 U. S. C. States, Sanders United 11-12, that S., in 373 U. Con- for of the writ involving silence on the standard abuse gress’ to foreclose judicial application a new claim was “not intended Wong Doo and in the abuse-of-writ as principle developed of Price.”
Sanders also in the our recognized special responsibility another provi- with corpus respect of habeas development code, U. S. C. judicial sion of the 1948 revision ed.). (1964 The statute created a new postconviction §2255 federal with a for prisoners provision repetitive remedy §2244. in different from the one found While petitions subsequent petitions §2244 dismissal permitted not theretofore presented that no new “presented] ground §2255 allowed a federal district court to determined,” to entertain a “similar subsequent petition seeking refuse §2255 to announce a much face, appeared relief.” On its than its in counterpart abuse-of-the-writ standard stricter Sanders, however, in that the lan- §2244. We concluded taken literally,” §2255 “cannot be construed guage the “material of the abuse standard equivalent” it to be States, v. United Sanders at 13-14. S., §2244. Sanders these under- In addition to answering questions, “formulation of basic rules to guide took a more general of abuse of federal courts” the doctrine concerning lower Id., at 15. After reiterating government writ. and the must refute a must abuse of writ plead Sanders addressed definition allegation, well-pleaded for the doctrine. It noted that equitable prin- and rationale “the writ, abuse of including principle ciples governed the matter at hand may conduct relation to suitor’s princi- him disentitle to the relief he and that seeks,” these ples applied must within be the sound discretion of district Id., at courts. 17-18. Court furnished illustrations of writ abuse: prisoner deliberately example, if
“Thus, for
withholds
grounds
one of two
for federal collateral relief at the time
filing
application,
hope being granted
his first
hearings
two
rather than one or for some other such rea-
may
right
son, he
be deemed to have waived his
to a
hearing
application presenting
on a second
the withheld
*16
ground.
may
Wong
The same
be true if,
Doo,
as
the
prisoner deliberately
grounds
abandons one
of
at the
Nothing
hearing.
first
in the traditions of habeas cor-
pus requires the federal courts to tolerate needless,
piecemeal litigation,
proceed-
or to entertain collateral
ings
purpose
only
delay.”
whose
is to vex, harass, or
Id., at 18.
Fay
Noia,
Court also
cited
(1963), (1963), Sain, Townsend 317 U. S. for guidance further ing on the doctrine of of abuse the writ, stat- principles “govern equally that the of those cases here.” Finally, S., at 18. Sanders established that federal courts must reach the merits of an abusive if “the justice ends of Ibid. demand.” years Congress Sanders,
Three after once more amended corpus attempt habeas the statute. The amendment was an increasing by to alleviate the burden on federal courts caused petitions by “introducing greater successive and abusive a degree finality judgments corpus proceed- of of in habeas ings.” Rep. Cong., (1966); S. No. 89th Sess., 2d see Rep. Cong., also H. R. 89th No. 2d Sess., 5-6 §2244 subparagraphs. The amendment recast into three (a) Subparagraph prisoners deletes reference state §2244 provision the old but left otherwise intact. 28 2244(a). (c) § Subparagraph S.U. C. states that where a prisoner alleged state seeks relief for an denial of a federal any right decision rendered Court, before this constitutional by fact or “conclusiveas to all issues of law the Court shall be right respect . . asserted denial of a Federal . with to an 2244(c). § S. C. U. (b) repetitive ap- subparagraph Congress address added by plications prisoners: state
“(b) evidentiary hearing the merits on after When an hearing on the mer- issue, or after a of a material factual custody pursuant person law, of an issue of a its by a judgment court denied of a State court has been justice judge the United or the United States or custody remedy ap- or on from other States release subsequent ap- corpus, plication a writ for corpus plication on a writ of habeas behalf such person United not be entertained court of the need justice judge of the unless or a or United States States application alleges predicated a factual is on hearing adjudicated ground not on or other application court, writ, for the and unless earlier judge applicant justice, not has is satisfied that deliberately application withheld the earlier on newly ground the writ.” or otherwise abused asserted *17 2244(b). § 28 U. S. C. (b) “qualified application
Subparagraph a of the establishes Rep. supra, judicata.” at It 1797, No. 2. doctrine of res S. a “need not entertain” a second or that federal court states petition petitioner subsequent “unless” the satisfies subsequent petition allege must a First, the two conditions. applicant ground, Second, or the new factual otherwise. satisfy deliberately judge he did not withhold must the abus[e] ground writ.” the earlier or “otherwise the See (“essential (1968) Yeager, ques- 122, Smith v. 393 U. S. 125 2244(b)] § ‘deliberately petitioner [under is tion whether the newly ground’ prior proceeding, asserted in the withheld writ’”). petitioner If abused the meets or ‘otherwise subsequent pe- the court must consider conditions, these
487
long as
errors,
nonexhaustion,
tition as
other habeas
such as
§2254(b),
procedural
Wainwright
U.
or
default,
S. C.
v.
Sykes,
(1977),
present.
Section
but does not answer, other
may
tions.
It does not state
whether
district court
over
deliberately
look
withheld or otherwise abusive claim to
any
entertain the
in
is,
event. That
it does not state
the limits on the district court’s discretion to entertain abu
petitions.
sive
Nor does the statute define the term “abuse
orig
of the writ.” As was true of similar
in
silences
§
supra,
inal 1948version of 2244, however, see
Con
2244(b)
§
gress
application
did not intend
to foreclose
principles defining
limiting
court-announced
and
a district
petitions.
court’s discretion to entertain abusive
Delo
See
(1990)(District
Stokes,
“A or second successive be if dismissed the judge allege grounds finds that it fails to new different prior relief determination was on merits grounds alleged, judge if new or, and different are finds that the failure of the to assert those grounds prior petition in a constituted an abuse of the 9(b). §2254 writ.” U. S. C. Rule 9(b) § 2244(b), “incorporates judge- Like 28 U. S. C. Rule principle governing made the abuse of the writ set forth (1982) Lundy, (plu- Rose Sanders.” 455 U. S. rality (Brennan, opinion); concurring part id., J., (same). dissenting part) Advisory Committee *18 petition subsequent clear in Notes make that new claim a judge if should not be entertained finds the failure to Advisory it raise earlier “inexcusable.” Committee Notes to pp. also state that C., 426-427. The Notes 9, Rule 28 U. S. change newly in the law and discovered evi- a retroactive failing represent acceptable excuses to raise the for dence Id., 427. claim earlier. years applied doc
In
have
the abuse-of-the-writ
recent
we
Hutchins, 464
In Woodard v.
trine in various contexts.
(1984)
curiam),
(per
no
offered
ex
U. S.
planation
asserting
claims in
federal ha-
for
three
a second
petition not
in the first. Five
inferred
raised
Justices
beas
explanation
“could
that the
claims
and
the lack of
three
from
petition,
in”
and that the
have been raised
the first
should
Id., at
abuse of the
378-
failure to do so constituted
writ.
(Powell,
joined
concurring
four Justices,
n. 3
379,
J.,
stay). Similarly,
application
grant
in
to vacate
Antone
(1984)
curiam),
(per
upheld
Dugger,
we
489 petition and sets deliberately aside claims unexhausted risks dismissal of federal subsequent petitions).
III Our discussiondemonstrates that the doctrine of abuse of the writ refers to a complex evolving body of equitable informed principles and controlled historical by usage, statu tory decisions. developments, judicial Because of his torical changes and the complexity subject, Court has not “always followed line its unwavering conclusions as to the Noia, Fay of the Great Writ.” v. availability 372 S.,U. at 411-412. Today we to define attempt the doctrine of abuse writ with more precision. our
Although decisions on the do not all admit of subject one ready synthesis, with point emerges Abuse of clarity: writ is not confined to instances of deliberate abandonment. Sanders mentioned deliberate abandonment as but one exam- ple conduct that a Sanders disentitled to relief. petitioner Sain, Townsend v. cited a passage U. S., 317, 372 which applied the of inexcusable noted principle neglect, and also principle the abuse-of-the-writ governs context, States, Sanders v. United 373 S.,U. at 18.
As Sanders’ reference to Townsend demonstrates, as many e. Courts of g., see, 2d, 890 F. Appeals recognize, at 346-347 (case Lockhart, Hall (CA8 below); F. v. 863 2d 610 (CA5 v. Estelle, Jones 1988); Mil 1983); F. 2d ler Bordenkircher, (CA4 764 F. 2d 260-252 1985), and as McCleskey Brief for Petitioner concedes, 39-40, 45-48, petitioner writ may by failing abuse the to raise claim through inexcusable Our recent confirm neglect. decisions that a petitioner can the writ abuse claim a raising subsequent petition that he could have in his first, raised regardless of whether the failure to raise it earlier stemmed Stokes, e. Delo from a g., See, deliberate choice. at 321-322; Antone v. Dugger, supra, at 205-206. S.,U. 2244(b) See U. § also 28 S. C. that a (recognizing delib- that does not constitute in a fashion the writ can abuse abandonment). erate pe- neglect from a demands more standard
The inexcusable But abandonment. of deliberate the standard titioner than *20 necessary to given the content term the former have not we allegedly of guide consideration in the ordered district courts explain corpus petitions. we For reasons habeas abusive corpus precedents leads us habeas a review of our below, whether used to determine standard that the same to decide govern the de- procedural should defaults excuse state to neglect in the abuse-of-the-writ of inexcusable termination context. adjudication cor- against in habeas prohibition federal
The purpose and pus is similar court defaulted state of claims general design which doctrine, to the abuse-of-the-writ not subsequent claims of prohibits consideration habeas pro- habeas in the first federal defaulted, raised, and thus ne- ceeding. and “inexcusable of the writ” terms “abuse “procedural default,” on glect,” hand, and on the one procedural regularity background imply norm of other, presumption explains binding pеtitioner. This on the adjudication in state against claims defaulted of both habeas federal ha- in the first round of and of claims defaulted court types power these to excuse A court’s beas. federal habeas equitable discre- from the court’s claims derives of defaulted (1984) (procedural de- Ross, 1, Reed v. 468 U. S. tion. See (abuse fault); 17-18 States, S., at 373U. Sanders v. United writ). equity recognizes con- that “a suitor’s In habeas, may him disentitle matter at hand in relation to the duct reasons, both the Id., at 17. For these seeks.” the relief he juris- procedural default and our doctrine abuse-of-the-writ petitioner’s prudence acts to determine concentrate on failing legitimate raise a claim excuse he has whether appropriate time. at the procedural the writ and abuse of default
The doctrines of signifi- flowing nearly implicate from the concerns identical corpus begin cant costs of federal review. To with, habeas finality. very objects writ strikes One of law’s is finality judgments. just of its Neither innocence nor punishment judgment be can vindicated until the final is finality, deprived known. “Without the criminal is law Teague much of its Lane, deterrent effect.” v. 489 U. S. And 288, 809 when a habeas succeeds “ obtaining memory’ ‘disper trial, a new the ‘erosion of passage sion of witnesses’ occur with the time,” Kuhl supra, prejudice government Wilson, mann v. at 453, adjudication. and diminish of a the chances reliable criminal Though Fay supra, may upon Noia, v. have cast doubt these propositions, Fay since we have taken care in our cor pus importance finality. decisions reconfirm the See, g., Teague supra, Murray e. Lane, 308-309; Carrier, (1986); supra, Engle S. 478, Ross, U. Reed v. at 10; *21 Isaac, v. 456 U. S.
Finality special importance has in the context of a federal Murray attack on supra, a state Carrier, conviction. v. at Engle supra, Isaac, 487; v. at 128. Reexamination of state “frustrate[s] convictions on federal habeas . . . ‘both the sovereign power punish good- States’ offenders and their attempts rights.’” Murray faith honor constitutional v. 128). supra, (quoting Engle, supra, Carrier, at 487 at Our system recognizes independent power federal of a State through to articulate societal norms law; criminal but the power pass of a State laws little if means the State cannot enforce them.
Habeas review extracts further costs. Federal collateral litigation places heavy judicial burden on scarce fеderal re- capacity system sources, and threatens the to resolve primary disputes. Bustamonte, Schneckloth v. S. U. (1973)(Powell, concurring). Finally, 218, 260 J., cor- habeas pus may give litigants review incentives to withhold claims manipulative purposes may establish disincentives to supra, Ross, Reed v. fresh.
present evidence is when claims Sykes, Wainwright at 89. S., 433 U. v. 13; pre- disruptions claim when a is are Far more severe subsequent federal ha- or a second first time sented for the petition. “[collateral a conviction extends review of If beas Engle society accused,” for both the ordeal of trial during supra, subse- the ordeal worsens Isaac, 126-127, disrespect Perpetual proceedings. for the quent collateral justice disparages finality criminal the entire of convictions system. repe- permits system procedural an endless which
“A inquiry in a vain search for and law into facts tition of implies a lack of confidence about ultimate certitude justice possibilities war with the effec- that cannot but underlying . . . There commands. substantive tiveness of system procedural point which leaves where comes longer open perpetually reflects humane con- no matters immobility.” anxiety merely and a desire for cern but omitted). (footnotes at 452-453 Rev., L. 76 Harv. Bator, first round of federal conviction If of a reexamination new claims raised examination of resources, habeas stretches petition spreads subsequent them thinner still. a second deplete petitions needed for federal the resources later These commencing including litigants litigants instance, first phenomenon calls to action. The their first federal prejudice “[i]t must admonition mind Justice Jackson’s application in a to be buried flood meritorious the occasional (opin- at 537 Allen, S., Brown ones.” of worthless *22 result). concurring of convic- if in And reexamination ion federalism and com- habeas offends in the first round of tions ity, must defend its when a State increases the offense proceeding subsequent on in second or conviction petition. grounds in the first not even raised corpus all these con- overrides of habeas The federal writ they law, to the rule of when as are siderations, essential in claim a petitioner constitutional a meritorious raises proper petition. procedural manner a habeas Our default jurisprudence jurisprudence help and abuse-of-the-writ de- procedural regularity. fine this dimension of Both doctrines impose petitioners compliance on a burden of reasonable with procedures designed discourage baseless claims and to keep system open recognize for ones; valid both the law’s finality; equitable principles interest and both invoke to de- pleading procedural fine the court’s discretion to excuse requirements petitioners comply who could not with them diligence. in the exercise of reasonable care and It is true procedural that a habeas court’s concern to honor state de- part respect integrity proce- fault rules rests in on for the “employed by jurisdiction dures a coordinate within the fed- system,” Wainwright Sykes, supra, eral v. at 88, and that respect implicated petitioner such is not when a defaults a by failing claim to raise it the first round of federal habeas procedural Nonetheless, review. the doctrines of default designed injury and abuse of the writ are both to lessen the through ato State that results reexamination of a state con- ground opportu- viction on a that the did not State have the nity prior, appropriate to address at a time; and both doc- finality trines seek to vindicate the State’s interest in the judgments. of its criminal unity purpose
We concludefrom the of structure and in the jurisprudence procedural of state defaults and abuse of the excusing writ that the standard for a failure to raise a claim appropriate at the time should be the same both contexts. procedural upon We have held that a default will be excused showing prejudice. Wainwright Sykes, of cause and supra. applies We now hold that the same standard to de- through if termine there has been an abuse of the writ inex- neglect. cusable procedural requires
In cases, default the cause standard objective to show that “some factor external to impeded the defense counsel’s efforts” to raise the claim in Murray Objec- Carrier, state court. S., at 488. *23 “ cause include ‘interference factors that constitute of- tive procedural compliance with the State’s that makes ficials’” showing legal impracticable, that the factual or and “a rule reasonably available to a claim was not counsel.” basis for constitutionally “[ineffective assistance addition, In of Ibid. Attornеy Ibid. error short of ineffec- counsel... is cause.” however, does not constitute cause counsel, assistance of tive procedural Id., at default. 486-488. and will not excuse a “ petitioner he must show cause, established ‘ac- has Once prejudice’ resulting the errors of which he com- from tual Frady, plains.” States v. U. S. United authority issue the writ courts to of Federal retain despite corpus in narrow of cases a further, class procedural petitioner’s for default. failure show cause to extraordinary when a constitutional vio- are instances These probably innocent has the conviction of one of caused lation implicat- this cases as described class of the crime. We have miscarriage justice. Murray ing Car- a fundamental supra, rier, 485. analysis adopted prejudice we have for cases
The cause and
inquiry
applies
procedural
to an
default
abuse-of-the-writ
prisoner
following
files a second or
in the
manner. When
application,
government
subsequent
bears the burden
government
pleading
The
satisfies
abuse
the writ.
particularity,
petitioner’s
clarity
it notes
if,
burden with
and
prior
history,
appear
writ
identifies
claims that
petitioner
alleges
has abused the
time,
first
writ.
disprove
petitioner’s.
The
abuse then becomes
To
burden
earlier,
claim
he must
excuse his failure to raise the
show
prejudice
failing it and
therefrom as those
cause for
raise
procedural
concepts
in our
default deci-
have been defined
petitioner’s opportunity
meet the burden of
sions.
evidentiary
prejudice
hearing
not include an
if
cause
will
peti-
court determines as a matter of law
the district
satisfy
If
cannot
the standard.
cannot
tioner
show
petition may
failure to raise the claim an earlier
cause, the
*24
be
if
nonetheless
excused
he or she can
show that
funda-
justice
miscarriage
mental
of
would result from a failure to
Application
prejudice
entertain the claim.
of the cause and
mitigate
standard in the abuse-of-the-writ context does not
Teague
(1989),
pro-
Lane,
the force of
v.
Considerations adoption preju- support judicial of the cause and function context. Well defined dice in the abuse-of-the-writ standard will familiar to federal case standard be law, imprecise application contours of the Its clarifies courts. objective neglect.” The is standard term “inexcusable comports applied with the in a manner that and can be one, inquiry. Price See nature of the abuse-of-the-writ threshold (abuse “prelimi- is Johnston, at 287 of the writ S., sufficiency nary as to the as well to a decision as collateral *25 itself”). Finally, allegation the standard or merits of the channeling provides means of dis- “a workable sound and Murray Carrier, v. courts.” of federal habeas cretion important, preclude “[I]t in to indi- at 497. is order S.,U. parts in of the Constitution different vidualized enforcement lay specifically as as the nature of the down Nation, gov- problem permits or directions that should the standards disposition applications Judges for ern in the the District corpus by prisoners Courts.” sentence of State under (opinion of Frank- Allen, S., at 501-502 Brown U. J.). furter, prejudice curtail abu-
The standard should cause and years petitions to under- in recent have threаtened sive that corpus process. integrity “Federal mine the of the habeas capital to tolerate —even courts should not continue corpus.” type of the writ of habeas abuse cases—this Hutchins, S., at 380. The writ of habeas Woodard centerpieces corpus of our liberties. “But the is one of good. potentialities well writ has for evil as as Abuse of justice orderly may administration of writ undermine authority that are essen- therefore weaken the forces (opinion supra, Allen, at 512 civilization.” Brown v. tial for J.). Adoption prejudice of the cause and Frankfurter, purpose acknowledges and function of the historic standard system, preventing and, its constitutional the writ our efficacy. its abuse, assures continued us. the case before these principles now apply We > the Massiah second federal claim based McCleskey Worthy’s alone. Evans document the 21-page on District The hearing. until did not come to identity light the tac- revelation of the document’s found, based on Court in conversation McCleskey Evans engaging used by tics his claim uncle and (such Ben Wright’s to be as his pretending robbery), in the to participate was supposed that he ab initio between relationship an established the document and on finding It relied on the authorities. Evans and the State commit- to conclude testimony later Worthy’s ted a Massiah violation. fed- any us or come before the merits cannot
This on ruling that constitutes a claim if it is on premised eral court therefore, prelimi- consider, must of the writ. We abuse for failing had cause whether McCleskey nary question the Massiah claim petition. in his first federal raise document nor the 21-page that neither District Court found the first filing before known or discoverable were Worthy ar- McCleskey these findings, on Relying federal petition. *26 raise the Massiah in the first claim his failure to that gues below, we set forth For reasons excused. should be petition disagree. not reasonably or could not possess,
That did McCleskey if cause other fails to establish certain evidence obtained, have could have supported evidence known or discoverable of some showing . requires . . event. any “[C]ause claim preventing or constructing counsel from impediment external Murray Carrier, 477 U. at 492 S., the claim.” raising added). exist, impedi the external cause to For (emphasis or the reason interference it be ment, government whether сlaim, must for the the factual basis unavailability able id., at the claim. See from raising petitioner have prevented . . made compliance officials . (cause by if “interference impracticable”); (1988) Zant, Amadeo v. S. (cause default). if unavailable evidence “was the reason” for petitioner's Abuse-of-the-writ doctrine examines conduct:The question petitioner possessed, is whether or reasonable allege means could obtained, have a sufficient basis to a claim petition pursue through the first and the matter the habeas process, §2254 (Discovery); see 28 U. S. C. Rule 6 Rule 7 (Expansion Record); (Evidentiary Hearing). Rule 8 The requirement of cause in the abuse-of-the-writ context is principle petitioner based on the must conduct a reason- diligent investigation including able and aimed at all relevant grounds claims peti- for relief the first federal habeas petitioner tion. If upon what knows or could discover rea- investigation supports sonable a claim for relief in a federal petition, what he does not know is irrelevant. Omis- merely sion of the claim will not be excused because evidence might supported strengthened discovered later also have the claim. applying principles,
In 21-page these we turn first to the signed distinguish statement. It is essential at the outset to (1) petitioner between two issues: Whether knew about or (2) 21-page couldhave discovered the document; and whether he knew about or could have discovered the evidence the doc- namely, jail-cell ument recounted, conversations. The District inqui- Court’s error lies in its conflation of the two perpetuate ries, an error would have us here. 21-page McCleskey document unavailable to at time of the McCleskey first does not establish failing had cause for to raise the Massiah claim at the outs testimony questioning et.* Based on at trial, McCles- accept clearly *We as not erroneous the District finding Court that the document itself reasonably was neither known nor discoverable at the time petition. first federal We note for completeness, the sake of how- ever, that *27 finding is not free from substantial doubt. The record con- knew, tains much McCleskey evidence that known, or should have written McCleskey document. When trial, took prosecu- the stand at key during jail-cell he had knew that confessed the murder Evans, conversations with knew that Evans claimed to be a Wright during Ben relative of conversations, and knew police that Evans told the about the conversations. Knowl- edge put McCleskey these facts alone would on notice to pursue petition the Massiah claim in his first federal habeas petition. as he had done the first state habeas finding But there was more. The District Court’s 21-page relationship document established an ab initio entirety between Evans and the authorities rested in its McCleskey participated. on in which conversations himself tor asked him prisoner about with a adjacent conversations cell. questions These provoked lawyers conference. The side-bar for the de- fense reasserted request defendant,” their from for “statements responded which the court . that “a statement . . was furnished to the Court but . . . help doesn’t [McCleskey].” App. 17. If any there were doubt document, about an additional why it is difficult to see such doubt had evaporated by not appeal time of the direct both the first state and first federal habeas actions. proceedings In McCleskey those made withholding deliberate by McCleskey of a statement specific Evans the basis Brady for a rejecting claim. In review, this claim on direct the Geor- gia Supreme prosecutor Court said: “The showed the defense counsel his file, but did not [i. this witness’ e. McClesky Evans’] statement.” furnish State, (1980) 108, 112, added). Ga. 263 S. E. 2d (emphasis At the first corpus state hearing, McCleskey’s habeas trial counsel testified prosecutor that the told him that the statement of an unnamed individual presented had been to the trial court but withheld from the defense. The prosecutor made clear identity the individual’s February 1981 state deposition when he stated: gave “. . . Offie Evans his statement but it was not introduced at the trial. part It was of that matter inspection that was made [in] camera prior judge App. to trial.” 25. All of place this took petition. record, then, before the first federal strong furnishes McCleskey evidence that knew or should have known of the Evans document before the first federal pur- but chose not to sue it. pass upon We need not finding the trial court’s contrary, to the however, for question the relevant in this case is whether he knew or should have known of the contents the conversations recounted in the document. *28 MeCleskey inculpatory
Though the conversa- denied trial apart presuppose arguments them. Quite his tions, current McCleskey’s inequity reliance оn that which he the in from point re- oath, the more fundamental denied under earlier MeCleskey participated in conversa- the mains because everything reported by he knew in the docu- Evans, tions upon to the ab Court relied establish ment that the District MeCleskey police. and the connection between Evans initio knowledge along all the facts had at constructive has least only 21-page the docu- learned from he now claims to have unavailability prevent document not ment. the did MeCleskey raising claim the first federal Massiah from petition for failure to And and is cause his do so. not representa- MeCleskey contend that his course, cannot false cause the omission a claim from at trial constitute for tions petition. the first federal jailer Worthy’s determination
The District Court’s identity testimony prior been and could not have known petition our It first federal does not alter conclusion. 21-page be that the statement was must only remembered MeCleskey he Massiah new evidence had when filed the petition in 1987. claim in the federal Under McCles- second nothing Worthy key’s theory, known about even own was Worthy MeCleskey If not know and did need to about then. testimony peti- press the Massiah claim the second him to it in the need to know about assert tion, neither did he prevent MeCleskey Ignorance Worthy not about did first. raising petition Massiah claim in the first federal from so. will not his failure to do and excuse reasoning Though to show irrelevance of this suffices finding concerning Worthy, the whole the District Court’s prompt requiring question in- illustrates rationale pursuit vestigation full of habeas claims in the first and the petition, petition. At federal written the time of first prison assignments logs ex- with staff names records By officialshad the time of second federal isted. pursuant destroyed retention sched- to normal the records testimony Worthy’s confused inconsistent and ules. factfinding proposition that the obvious case demonstrates McCleskey delayed. pre- impaired processes Had are when proceeding when sented this claim the first federal *29 could have identified the available, were he official records assignment and cell sheets. critical relevant officers including the reason for Evans’ Massiah claim, facts for the adjacent McCleskey’s precise placement in cell the had with Evans before he was conversation that each оfficer greater put likely with would have been reconstructed there, By failing precision to raise the than now can be achieved. McCleskey procedures in foreclosed the Massiah claim needed best for disclosure of the facts for a reliable suited determination.
McCleskey responsible to hold the State nonetheless seeks petition. in the his of the Massiah claim first omission engaged strategy allege that the His current is to State withholding 21-page wrongful in in document. conduct long. argument us all is said and This need not detain When presented despite in the all the case, is not done, issue McCleskey’s argument. emphasis upon it in brief and oral 21-page upon police turned over the document The Atlanta misrepresenta- request found no in 1987. The District Court failing wrongful by in to hand over tion or conduct the State in of the evidence earlier, and our discussion the document concerning n., the statement, the existence of see the record swpra, that at least four courts have con- as the fact as well Brady rejected petitioner’s claim, belies McCles- sidered key’s the case. And as we have taken characterization of McCleskey’s explain, is not critical to care the document anyway. a Massiah claim notice of procedural default discussion Petitioner’s reliance on (1988), misplaced. In Zant, 486 U. S. is Amadeo v. government mentioned that concealment Amadeo the Court procedural if it “was be cause for default of evidence could lawyers petitioner’s to raise the failure of a the reason for the challenge jury Id., at 222. This case dif- trial court.” respects. First, crucial there is no Amadeo in two fers from finding And even second, evidence. that the State concealed 21-page intentionally document, concealed if the State light because, cause here would not establish concealment McCleskey’s knowledge in the docu- of the information prevented any not have him would initial concealment ment, petition. raising in the first federal the claim from failing McCleskey to raise the Massiah lacks cause for As petition, we need not consider federal claim in the first inability prejudiced to raise the he would be whether Murray alleged date. at this late See Massiah violation proposition showing (rejecting Carrier, S., at 494 U. cause). prejudice permits absencе of relief exer- the Court should nonetheless We do address whether miscarriage jus- equitable to correct cise its discretion McCleskey. exception is of no avail to *30 That narrow tice. in one, if it resulted the admission violation, Massiah be The inculpatory affect evidence which did not truthful at trial of very reliability guilt state- determination. The of the guilt. McCleskey embrace confirms his now seeks to ment observed: As the District Court [the having statement], the court has read Evans “After nobody Faulkner could that short of William concluded consequence and as statement, have contrived absolutely testimony true, Evans to be finds the of Offie that it entertains states on the record and the court absolutely guilt McCleskey.” to the of Mr. no doubt as 4 Tr. 4. McCleskey agree cannot demon with this conclusion.
We alleged Massiah violation caused the convic strate person. Murray supra, Carrier, an innocent tion of 496. history proceedings case, in this and the burden
The against allegations defending upon made for the the State first time federal court some nine years trial, after the re- veal the for the necessity abuse-of-the-writ doctrine. cause and standard we prejudice adopt today leaves ample room for consideration of constitutional errors in a first fed- eral habeas and in a later petition under appropriate circumstances. Petitioner has not satisfied this standard for the omission of the Massiah claim excusing from his first pe- tition. The judgment of the Court of is Appeals
Affirmed. APPENDIX TO THE OPINION OF COURT Stages Petitioner’s Claims at Various for Relief Litigation Appeal. 1. Direct On direct appeal, McCleskey raised the (1) claims: following the death penalty was administered in fashion discriminatory because of prosecutorial discretion; (2) the conducted an prosecutor illegal postindictment lineup; (3) the trial court erred admitting trial the statement (4) made to the McCleskey the trial police; court erred in al- Evans to lowing testify about McCleskey’s jail-house confes- (5) sion; prosecutor failed disclose certain impeachment (6) evidence; and the trial court erred admitting evidence McClesky State, of McCleskey’s criminal acts. prior 108, 112-114, Ga. E. 2d 146, S. 149-151 Corpus 2. First State Habeas Petition. McCleskey’s first state habeas petition alleged following constitutional vi- (1) olations: death Georgia penalty is administered arbi- (2) trarily, capriciously, and whimsicаlly; im- Georgia officials posed McCleskey’s sentence capital pursuant to a pattern and *31 practice discrimination on the basis of race, sex, and pov- (3) the death erty; penalty lacks theoretical or factual justifi- (4) cation and fails to serve rational any interest; McCleskey’s death sentence is cruel and unusual in punishment light of all (5) mitigating factors; received McCleskey inadequate notice (6) and opportunity heard; to be the jury did not constitute (7) a fair cross section of the community; the was jury biased (8) improperly prosecution; the trial the court favor of penalty; jurors opposed to the death were excused two who (9) McCleskey’s postarrest should have ex- statement been allegedly illegal an after ar- it was obtained cluded because (10) postarrest was extracted statement involun- rest; the (11) “arrangement” tarily; to an with the State failed disclose (12) deliberately key the State witnesses, Evans; one of its (13) McCleskey by Evans; the statement made to withheld a failing McCleskey grant funds to trial to court erred (14) employ experts defense; three witnesses in aid of involving lineup highly suggestive the State witnessed (15) jury McCleskey prior trial instruc- trial; the court’s to concerning impermissibly the burden of shifted tions intent (16) impermissibly McCleskey; prosecution persuasion the to sentencing process during appellate the to the referred (17) improperly phase; evidence the court admitted trial McCleskey convicted; had not been other crimes for which (18) concerning evidence of trial instructions court’s (19) appellate McCleskey’s overbroad; other acts was bad McCleskey Georgia procedures effective as- denied review hearing, tools of an a fair and basic counsel, sistance of (20) penalty adequate the means which the death defense; (21) unnecessary torture; is administered inflicts wanton McCleskey assistance of counsel nu- was denied effective (22) contexts; introduction of statements merous to in a situation created induce Evans were elicited made to McCleskey (23) incriminating statements; to make McCleskey capital convict evidence was insufficient Tr., Exh. H. HC No. Petition, murder. McCleskey Corpus Petition. 3. First Federal Habeas petition: following first federal habeas claims his raised the (1) Georgia penalty discriminated on basis of death (2) “understanding” with race; the State failed disclоse (3) impermis- jury to the the trial court’s instructions Evans; (4) sibly McCleskey; prosecutor im- the burden shifted appellate process sentencing properly at the referred to *32 (5) phase; impermissibly grant the trial court refused to Mc- (6) Cleskey employ experts funds to in aid of his defense; concerning McCleskey’s trial court’s instructions evidence of (7) other bad acts the trial overbroad; was court’s instruc- gave jury tions to too much discretion consider nonstatu- (8) tory aggravating improp- the trial circumstances; court erly McCleskey admitted evidence of other crimes for which (9) had not convicted; been three witnesses for the State wit- highly suggestive lineup involving McCleskey prior nessed a (10) McCleskey’s postarrest trial; statement should have (11) involuntarily; been excluded because it was extracted impermissibly jurors op- trial court excluded two who were (12) posed penalty; penalty to the death the death lacks theo- justification any retical or factual and fails to serve rational (13) deliberately interest; the State withheld a statement (14) by McCleskey made Evans; the evidence was insuffi- (15) McCleskey capital cient to convict murder; McCles- key’s investigate counsel failed to the State’s evidence ade- (16) quately; McCleskey’s counsel failed to raise certain (17) objections McCleskey’s or make certain trial; motions at independent investigation counsel failed to undertake an (18) possible mitigating prior trial; circumstances after McCleskey’s trial, counsel failed to review and correct the judge’s report. McCleskey Supp. Zant, sentence 580 F. (ND 1984). Ga.
4. Habeas Petition. In his Second State second state ha- (1) petition, McCleskey alleged following beas claims: prosecutor systematically jury; excluded blacks from the (2) Georgia imposed penalty against the death State (3) McCleskey racially discriminatory in a manner; the State (4) agreement failed to Evans; disclose its with the trial court impermissibly grant McCleskey employ refused to funds to (5) experts prosecutor improp- in aid defense; of his erly process appellate sentencing referred to the at the phase. Petition, Tr., Exh. G. *33 Corpus In Habeas his second
5. Second Federal Petition. McCleskey following petition, alleged federal habeas the (1) testimony concerning conversation with claims: Evans’ McCleskey because a state was Evans acted as inadmissible McCleskey to make informant in a situation created incriminating induce (2) the State to correct the statements; failed (3) misleading testimony the failed to Evans; State disclose (4) prosecutor improperly arrangement” the Evans; “an with (5) sentencing phase; appellate process at the referred to the McCleskey’s systematically excluded blacks from the State (6) McCleskey pursu- imposed jury; penalty death was on the by pattern practice racial Geor- ant to a gia discrimination and (7) against defendants; the trial court officials and black McCleskey employ impermissibly grant funds to refused experts in Federal 1 Petition, aid of his defense. Habeas Tr., Exh. 1. Blackmun and Marshall, with whom Justice
Justice dissenting. join, Justice Stevens drastically Today’s departs the norms that decision from proper judicial even the most function. Without inform prin- discarding legal longstanding casual admission that it is ciples, radically “abuse redefines the content of the the Court strict-liability substituting “cause doctrine, writ” Wainwright Sykes, prejudice” 433 U. S. and standard of (1977), good-faith for the “deliberate stand- abandonment” States, ard of This Sanders United U. S. judicial repudiates line of deci- innovation, doctrinal a which by pro- Congress governing codified in the statute and sions peti- by rules, cedural was means when the no foreseeable application. in this case first federal habeas tioner filed his applied today the new and not Indeed, rule announced was any point requested respondent litigation. even this Finally, rather than remand this case for reconsideration majority performs independ- light of its new standard, disregarding record, reconstruction of the the factual ent findings applying new rule District Court its encourages manner state officials to conceal evidence would likely to raise a prompt petitioner particular on habeas. I claim Because cannot acquiesce unjus- assault IWrit, tifiable on the Great dissent.
hH Disclaiming innovation, majority depicts “cause test prejudice” as a clarification merely law. existing decisions, Our have left majority explains, confu- “[m]uch ... on sion the standard when a determining Ante, at 477. abuses writ.” But amidst this “confu- sion,” the discern trend majority purports toward the *34 standard and concludes that cause-and-prejudice this is the rule that best with “our habeas comports corpus precedents,” ante, at 490; ante, and with the see “complex and evolving body of that have еquitable principles” traditionally defined the id., at doctrine, abuse-of-the-writ 489. This at- tempt gloss over the break between today’s decision and established precedents is completely unconvincing. on in
Drawing the at common law practice England, long Court established ago that the a federal power court to entertain a second successive should turn petition not on “the inflexible doctrine res judicata” but rather on the ex- ercise of “sound judicial discretion guided controlled aby consideration of whatever has a rational the bearing on sub- ject.” Wong States, Doo v. United U. 265 S. 240-241 (1924); accord, Salinger Loisel, U. S. 230-232 (1924). Thus, in Wong Doo, the Court held that the District acted its in Court within discretion dismissing petition on a that premised ground was raised but aban- expressly in an doned earlier “The had full petition. petitioner oppor- tunity,” the Court explained, “to offer the [of aban- proof ground] doned at the on hearing the first if petition; and, he on was that faith intending rely ground, good required that he the then.” produce 265 U. at 241. proof S., Noting that the evidence the abandoned had supporting ground been “ac- petitioner, inferred that an time,” all the Court the
cessible deportation, split seeking had his imminent to forestall alien [deporta- “postpone the the in execution of claims order his tion] Ibid. order.” (1948), contrast, in the Johnston, S. 266
In Price v. by its discretion held that the District Court abused Court summarily dismissing petition raised a claim not as- any petitions previous the same filed in of three serted prisoner. from the record that it been clear Whereas had possessed Wong petitioner to the facts Doo had access supporting Price claim, the District Court his abandoned “acquired assuming prisoner no had no basis for had disposition of his information since” new or additional [had been] “[E]ven petitions. if it found Id., 290. earlier knowledge prior of all the facts con- have that cerning did allegation question,” added, the Dis- the Court before af- should not have dismissed trict Court fording opportunity prisoner to articulate “some previously [why] justifiable unable to assert he was reason significance rights relevant or was unaware Id., at 291. facts.” (1963), the Court States, S.
In Sanders v. United U. bearing crystallized court’s on a various factors district petition.1 The Court to entertain a successive discretion *35 petitions raising previously distinguished Sanders successive grounds raising previously unasserted from those asserted regard petitions, grounds. of the With to the former class may give “[c]ontrolling explained, the court Court district prior application” weight... [the] unless “the denial of by reaching justice the served merits of ends of would ... be regard subsequent application.” Id., 16. With to the at the question in the Although the abuse-of-the-writ con Sanders examined §2255, 28 U. motion collateral review filed under S. C. the text of a for principles apply peti in of a it the the context made clear that same Court S., §2254. corpus 28 U. S. C. See 373 U. tion for habeas filed under 12-15.
latter, the district must reach however, court the merits of the unless “there an abuse of has been the writ determining In Id., . . . at 17. whether the omission previous petition the claim from the constitutes abuse of judgment guided writ, of the district court is to be “ chieflyby ‘[equitable] principle that a suitor’s conduct may relation to the matter at hand disentitle him to the relief quoting Fay he Ibid., Noia, seeks.’” U. S. example, prisoner deliberately “Thus, for if a withholds grounds one of two for federal collateral relief at the time filing application, hope being granted his first hearings two rather than one or some other such rea- may right son, he be deemed to have waived his to a hearing application presenting on a second the withheld ground. may Wong The same true if, be as Doo, prisoner deliberately grounds abandons one of his at the hearing. Nothing in first the traditions of habeas cor- pus requires the federal courts to tolerate needless piecemeal litigation, proceed- or to entertain collateral ings only purpose delay.” vex, whose is to harass, or S., at 18. emerges predecessors What from Sanders and its is essen- tially good-faith by Wong standard. As illustrated Doo, principal that the form of bad faith “abuse of the writ” doctrine is intended to deter is deliberate abandonment of legal a claim factual basis of which are known to the (or counsel) petitioner petition. when he files his first point by equating Court Sanders stressed its anal- ysis Fay supra, v. Noia, with that which established the bypass” then-prevailing cognizability “deliberate test for the petitioner procedurally of claims on which a defaulted in state proceedings. A S., See 373 U. 18. also abuses the writ under when he Sanders uses the writ to achieve expeditious some end other than relief from unlawful confine- delay.” long harass, ment-such as “to vex, However, so *36 510 good- application petitioner’s previous based on a was
as him, Price v. available to see of the claims faith assessment Wong supra, supra, Doo, 241; the denial Johnston, at 289; availing petitioner application not bar from does of Johnston, Price v. information,” or additional himself “new previously support supra, raised. a claim not 290, Corpus Advisory Habeas Rule Note to Accord, Committee’s p. 427. 9, C., S. currently applicable prejudice” standard “Cause and —the Wainwright proceedings, procedural see in state
to defaults (1977) imposes Sykes, test. a much stricter 433 S. 72 v. U. — petitioner precedents make has cause clear, As this Court’s pro- failing effectively present his claim in to federal state for objective ceedings only de- factor external to the when “some impeded comply with the State’s fense counsel’s efforts Murray procedural 478, Carrier, .” v. 477 U. S. rule . . . (1986). is mind counsel test, state of 488 largely Under this that even this Court has held Indeed,
irrelevant. particular perception claim is reasonable counsel’s legal the failure does not excuse without factual foundation objective, external to raise that claim the absence of Murray, impediment v. 477 efforts. See Smith counsel’s compo- In this the cause sense, S. 535-536 U. Wainwright Sykes a strict- v. test establishes nent liability standard.2
2Contrary majority’s suggestion, this Court’s more recent deci to the Sykes’ by on the writ means foreshadowed the shift to sions abuse of no majority strict-liability cases cited all involved standard. The stay cursory dispositions capital applications, and the eleventh-hour analysis ruling suggests merely petitioner failed to each the habeas having failed to carry articulating explanation his burden of a credible Advisory petition. in an earlier See Committee’s Note to raise the claim (“[T]he C., p. Rule has the bur Corpus U. S. Habeas accord, writ”); Johnston, proving that he has not abused Price den of (1948); States, 1, 10 see also Sanders United 373 U. S. 334 U. S. writ). (1963)(Government merely plead Thus, abuse of the has burden (1984) curiam), Hutchins, (per five 464 U. S. Jus- in Woodard v.
511 Equally foreign jurisprudence to our abuse-of-the-writ is requirement petitioner “prejudice.” the show Under petitioner justifiable Sanders, who articulates a reason for failing present previous application in claim a habeas is any particular required degree in not addition to demonstrate prejudice before the habeas court must consider his claim. petitioner If the demonstrates that his claim has it is merit, resulting the State that must show the constitutional beyond error was harmless a reasonable L. doubt. See (1981).3 § p. Yackle, 133, Postconviction Remedies 503 in concurring petitioner tices the order concluded that the habeas had explanation abused the writ because he no having “offer[ed] for failed to Id., corpus.” [three raise claims in his first for habeas new] at 379 (Powell, J., J., joined by Burger, C. and O’Con Blackmun, Rehnquist, added). JJ., stay) concurring vacating (emphasis peti in order A nor, gives explanation omitting tioner who no previous his claims from a carry application necessarily justification. Similarly, fails to burden of curiam), Dugger, (1984) in (per rejected Antone v. 465 U. S. 200 the Court petitioner’s as “meritless” the claim that the imminence of his execution prevented identifying all his counsel from of the claims that could be raised petition, petitioner’s in the first because the execution had in fact been stayed original Id., during pendency proceeding. the of the at Stokes, curiam), Finally, (per (1990) n. 4. in Delo v. S. 495 U. analysis petitioner Court a five-sentence concluded that the had abused by raising legal readily apparent the writ a claim the basis of which was Id., petition. opinion says nothing the time of the first at 321-322. The petitioner any explanation pre about whether the offered to rebut deliberately sumption that the had abandoned this claim. In short, analysis in these decisions is as consistent with Sanders’ Sykes’ cause-and-prejudice deliberate-abandonment test as with test. incorrect, moreover, majority simply The is when it claims that the “prejudice” component Sykes test is “[w]ell of the defined the case law.” Ante, Sykes expressly at 496. Court declined to define this con S., then, cept, upon see and since Court has elaborated “prejudice” only applies jury-instruction as it to nonconstitutional chal lenges, import open term in leaving “the other situations ... Frady, Thus, question.” 456 U. S. far United States resolving proper application of from “confusion” over the the abuse-of-the- doctrine, today’s writ decision creates it.
HHHH majority analysis posed question not s is The real departs prin- cause-and-prejudice test from whether clearly ciples ma- of Sanders—for it does—but whether departure justifying jority exer- as an has succeeded my common-lawmaking In discretion. of this cise Court’s justifying majority new its not come close view, the does *38 standard.
A cause-and-prеjudice Incorporation into the test the justified an exercise be as doctrine cannot abuse-of-the-writ common-lawmaking this discretion, because this Court’s Congress in this has to exercise area. discretion Court no good-faith affirmatively the standard has ratified Sanders procedural thereby governing rules, and insulat- statute the repeal. judicial ing that from standard is embodied in 28 U. S. C. The doctrine abuse-of-the-writ 9(b). 2244(b) § Corpus three Rule Enacted in Habeas 2244(b) statutory § years the au- recodified Sanders, after thority a second successive of a court to district dismiss language incorporate amending statutory petition, the the criteria: Sanders corpus application subsequent
“[A] a writ of . the a court . . unless . . . need not be entertained application alleges predicated on a or other and is factual hearing ground adjudicated of the earlier not on application writ, and unless court... is satis- for the application applicant fied not on earlier that the has newly deliberately ground asserted or oth- withheld 2244(b). § S. C. erwise the writ.” 28 U. abused purpose Sanders, recodification with Consistent peti- spare obligation to entertain a a district court the was “containing allegations to those in a asserted tion identical predicated upon application previous denied, or that has been petitioner] [the [he] grounds obviously when well known
513 preceding application.” S. No. 89th Rep. filed (1966) added). 9(b) Sess., 2d 2 Cong., Rule like- (emphasis Sanders’ wise adopts terminology: “A second or successive bemay dismissed if the finds that it fails to new or judge allege different grounds for relief and the determination was on the prior merits or, if new different are grounds alleged, judge finds that the failure of the petitioner to assert those in a grounds prior petition constituted an abuse of the writ.” 2244(b) 9(b) §
There can be no
question
and Rule
Sanders.
codify
legislative history of, and Advisory
9(b)
to,
Committee’s Notes
Rule
so
expressly
indicate, see
28 U. S.
H. R.
No.
C.,
426-427;
94-1471,
5-6
pp.
Rep.
pp.
(1976), and such has been the universal
understanding
Court, see Rose
Lundy,
v.
455 U. S.
(1982), of the
e. Williams
g.,
Lockhart,
courts, see,
lower
F. 2d 155,
(CA8
Whitley,
1988);
860 F. 2d
Neuschafer
*39
(CA9 1988),
sub nom. Demosthenes v. Neuscha
denied,
cert.
fer,
(1989);
2d,
4 respect, In this the abuse-of-the-writ doctrine on rests a different procedural-default foundation from Wainwright Sykes, doctrine. In v. (1977), emphasized 433 S. 72 procedural-default U. the Court that the rule Fay Noia, (1963), only set down 391 “comity” U. S. derived from considerations, S., 83, explained at that the content of this doc subject traditional, trine is therefore to Court’s common-law discretion modify writ, “to overturn or scope its earlier views of the of the even 2244(b) 9(b) § majority codify that Rule concedes 487, at but Sanders, Congress ante, see concludes nonetheless that “questions” concerning all “not answer” of the did majority empha- doctrine, the abuse-of-the-writ ibid. The 2244(b) § petitions that refers to second or sizes successive petitioners “deliberately newly from who have withheld the ground ... or abused the asserted otherwise writ” without exhaustively cataloging ways may which the writ “oth- ante, 486, erwise” be “abused.” 489-490. From See majority congressional delegation “silenc[e],” the infers a lawmaking power enough encompass engrafting broad cause-and-prejudice test onto the abuse-of-the-writ Ante, doctrine. at 487. reasoning seriously.
It is difficult to take this
Because
Sykes
petitioner
“cause” under
makes the mental state of the
(or
counsel)
completely
“cause”
irrelevant,
subsumes “de-
Engle v. Isaac,
liberate abandonment.” See
U. S.
(1982);
Wainwright Sykes,
n. 36
see also
U.
atS.,
merely failing
if
Thus,
87.
to raise claimwithout “cause”—
impediment
raising
is,
some external
without
it—nec-
essarily
statutory
constitutes an abuse of the
writ,
refer-
withholding
ence to deliberate
of a claim would be rendered
superfluous.
primarily
Insofar as Sanders was
concerned
limiting
subsequent petition
with
dismissal of a second or
deliberately
instances which the
had
abandoned
suggestion
the new
see 373
claim,
S.,
U.
that Con-
gress invested courts with the discretion to read this lan-
guage
completely
out of the statute is
irreconcilable with the
2244(b)
9(b)
§
proposition
codify
and Rule
Sanders.
give
abus[e]
To
content to “otherwise
the writ” as used in
§2244(b),
explained,
we must look to Sanders. As I have
*40
statutory
judicial
language authorizing
where the
action has remained un-
id.,
changed,”
Fay
bypass”
at 81. But unlike
v. Noia’s “deliberate
test for
procedural defaults,
the “deliberate abandonment” test of Sanders has
expressly
by Congress.
legislative
been
necessarily
ratified
This
action
scope
common-lawmaking
constrains the
of this Court’s
discretion.
the Court Sanders identified two broad classes of bad-fаith
adjudication
previ-
conduct that bar
aof claim not raised in a
application:
ous habeas
the deliberate abandonment or with-
holding
petition;
filing
of that claim from the first
and the
petition
purpose
expeditious
of a
aimed at some
other than
from unlawful confinement,
relief
such as “to vex, harass,
delay.”
By referring
See ibid.
to second or successive
applications
petitioners
“deliberately
from habeas
who have
newly
ground
withheld
asserted
or otherwise abused the
2244(b)
§
Congress may
writ,”
tracks this division.
well
phrase
have selected the
“otherwise abused the writ” with
expectation
upon
that courts would continue to elaborate
types
dilatory
tactics
that,
addition to deliberate
abandonment
claim,
of a known
constitute an abuse of the
Congress’
codify
writ. But consistent with
intent to
Sand-
good-faith
ers’
test, such elaborations must be confined cir-
petitioner’s
cumstances in which a
omission of an unknown
conjoined
filing
claim is
with his intentional
of a
improper purpose,
delay.”
an
such as “to vex, harass or
majority tacitly acknowledges
this constraint on the
interpretive
by suggesting
Court’s
discretion
that “cause” is
neglect.”
tantamount to “inexcusable
This claim, too, is un-
majority exaggerates
tenable. The
when it claims that the
neglect”
“inexcusable
formulation—which this Court has
applied
never
in an abuse-of-the-writ decision—functions as
independent
evaluating petitioner’s
an
standard for
failure
previous
application.
to raise a claim in a
habeas
It is true
compared
analysis
analysis
that Sanders
its own
to (1963),
Townsend v. Sain,
317.5 separate deliberate abandon- from abuses a class of scribe prejudice” melding into the abuse-of- “cause and of ment, “giving means of as a defended cannot be doctrine the-writ neglect.” 490. For under Ante, at to “inexcusable content” attorney negligence strict-liability is mere Sykes’ standard, Murray 488 S., Carrier, v. See never excusable. per- by (“So represented counsel whose long is a defendant as constitutionally discern , ... we ineffеctive is not formance attorney error requiring the risk of inequity him to bear no default”). procedural results a that today legislative majority exercises that Confirmation by supplied belonging properly is power to this Court not rejection of Congress’ consideration recent own 2244(b). § does that this Court It is axiomatic amendment backup legislature of for the reconsideration a not function as existing v. attempts Bowsher statutes. See amend failed (1983); n. 12 FTC 824, 837, 460 U. S. Co.,& Merck (1952); also North see 470, 478-479 343 U. S. Co., Ruberoid 534-535 U. Bell, S. Bd. Ed. Haven today’s exactly re- decision. As effect of that is Yet § Judiciary, 1303 ported on of the House Committee out (1990), Cong., have re- would 2d Sess. R. 101st of H. application by subsequent any quired second dismissal peti- petitioner unless the sentence of death under 9(b) language Rule to eliminate Indeed, expressly amended Congress neglect.” similar to “inexcusable a standard would have established 9(b) a dis would have authorized initially Congress, Rule submitted to As raising previously petition or successive court to entertain second trict the failure of the the court “finds that ground unless unasserted H. R. not excusable.” prior in a is groun[d] th[at] to assert added). (1976) Explaining that “the ‘not 94-1471, (emphasis p. Rep. No. and undefined standard ereat[e] a new language [would] excusable’ a discretion to dismiss a second or succes judge too broad g[ive] a [would] of the writ” formula Sanders’ “abuse Congress substituted petition,” sive 9(b) “brin[g] Rule id., designed was This amendment at 5. tion. See Ibid. conformity existing law.” with into [which] could claim “the factual basis raised a new tioner dili- exercise reasonable discovered have been not *42 (1990) p. (emphasis Rep. pt. gence,” 29 101-681, R. No. H. added).6 accompanying legisla- Report this The Committee properly explained section construed that “courts have tion 9(b) 2244(b) guidelines the the of and Rule as codifications prescribed [Supreme] Id., at 119 Sanders” Court itself omitted). (citation adoption Report justified of the The ground diligence” tougher on the standard “reasonable satisfactorily guidelines “[t]he . met con- have not. . Sanders may prisoners file second or successive that death row cerns extending litiga- corpus applications of as a means rejection legisla- by Congress’ of this Ibid. tion.” Unfazed power repeal majority arrogates itself the to tion, the tougher replace a standard.7 and to it with Sanders B cause-and-prejudice into the if of abuse-of- Even the fusion by Congress, thе will of were not foreclosed the-writ doctrine majority a that such rule would be fails to demonstrate common-lawmaking just dis- exercise of the Court’s wise or majority’s abrupt change in In law sub- fact, cretion. 2244(b) § unfairly prejudices underlying policies verts the petitioner in this case. cause-and-prejudice premises adoption majority “finality.” entirely importance of See on test almost insufficiently developed is an best, at 490-493. At this ante, any cause-and-prejudice possible justification for other very conception doctrine. For the of abuse-of-the-writ legislation that became 5269 was the House version of the 6 House bill 101-647, Act Pub. L. 104 Stat. 4789 the final of the Crime Control 2244(b) § unamended. version of which left §2244(b) 7 Moreover, rejected changed would have amendment to by only subsequent petitions petitioners filed for second or the standard death, leaving the intact for Sanders standard under sentence majority’s today changes decision the stand noncapital petitioners. The petitioners. for all habeas ard justice sys- is our criminal Writ of the Great
essence “[cjonventional fi- notions of suspending commitment to tem’s at stake and life or is liberty . where . . nality litigation Sanders, is alleged.” rights of constitutional infringement make is not principle recognize at 8. To S.,U. accompanied the writ must be claim that straw-man repetition endless permits which system procedural “‘[a] ultimate in a vain search law facts and into inquiry in Crim- Ante, Bator, Finality 492, quoting certitude.’” Prisoners, for State Corpus Habeas Law and Federal inal out only point it is Rather, L. Rev. Harv. “[ujnder fashion- guise not, may fact that we the plain efficacy of out the practical . . . rule, wip[e] ing procedural on the District Courts.” by Congress conferred a jurisdiction *43 (1953) Allen, Brown 498-499 443, (opinion S. v. 344 U. J.). Frankfurter, that cause-and- to demonstrate seeks
The majority
the State’s
balance between
an acceptable
strikes
prejudice
by
of habeas corpus
and the purposes
in finality
interest
doctrine to
procedural-
the abuse-of-the-writ
analogizing
two doc-
to the
these
majority,
According
doctrine.
default
concerns
from
flowing
identical
nearly
trines “implicate
Ante,
review.”
corpus
costs of federal
significant
cause-
has
deemed
already
this Court
490-491. And because
assessing
standard for
to be an appropriate
and-prejudice
reasons,
the same standard
defaults, the majority
procedural
in a
thе failure to raise a claim
for assessing
should be used
ante, at 490-493.
See
habeas petition.
previous
This
scrutiny.
not withstand
Court’s
This
does
analysis
identify
doctrine
two
the procedural-default
on
precedents
The first
test.
cause-and-prejudice
served
by
purposes
proce-
for State’s
respect
legitimate
is to promote
purpose
g.,
Ross,
Reed v.
See, e.
(1984);
468 U. S.
dural rules.
Sykes,
As the Court has
S.,
explained,
at 87-90.
433 U.
that a state
court to entertain
claim
of a habeas
willingness
“undercuts]
barred
to be procedurally
court has deemed
ability
procedural
Engle
State’s
to enforce its
rules,”
v.
may
Isaac,
S.,
456 U.
at 129, and
cause “state courts them
[to
stringent
be]
selves
Sykes,
less
in their enforcement,”
swpra,
generally
at 89. See
Meltzer, State Court Forfei
Rights,
tures of Federal
99 Harv. L. Rev. 1128, 1150-1158
purpose
cause-and-prejudice
The second
of the
test
preserve
is to
the connection between federal collateral re
general
view and the
“deterrent” function served
“ ‘[T]he
Great Writ.
necessary
threat of habeas serves as a
appellate
additional incentive
through
for trial and
courts
proceedings
out the land to conduct their
in a manner consist
ent with
Teague
established constitutional standards.’”
v.
(1989) (plurality opinion),
Lane,
Neither ofthese concerns is even in the *44 setting. abuse-of-the-writ The abuse-of-the-writ doctrine clearly contemplates (as petitioner a situation in which a in case) complied applicable state-procedural has with rules effectively and pro- raised his constitutional claim in state ceedings; otherwise, were it the abuse-of-the-writ doctrine perform screening independent would not a function from performed by procedural-default by that doctrine and requirement petitioner that a habeas exhaust his state reme- (c). §§2254(b), dies, see 28 U. S. C. ante, Cf. at 486-487. presupposes Because the abuse-of-the-writ doctrine that the proceed- effectively in state petitioner raised his claim has by ings, entertain the claim habeas court to a decision petition notwithstanding from an earlier omission its state-procedural disrespect rules nor for neither breed will unfairly subject in collateral review to federal courts state disposition of a federal claim.8 a state-court the absence of addresses the situ- doctrine Because the abuse-of-the-writ must determine habeas court a federal ation in which from another federal habeas a claimwithheld whether to hear appro- identifying strike an abuse must for court, test setting. finality in priate review that balance between 2244(b) § Only strike an effi- does Sanders when informed liberty petitioner’s in own interest A habeas cient balance. petition all powerful in his first incentive to assert furnishes counsel) (or have a rea- petitioner believes claims that Rev. 83 Harv. L. prospect Note, See for success. sonable Lundy, (1970); S., at 455 U. also Rose v. see 1038, 1153-1154 (“The inis obtain- prisoner’s principal course, interest, of claims”). on the ing speedy bar Sanders’ on his federal relief adequately forti- faith bad claims omitted later assertion of however, time, At the same fies this natural incentive. any asserting petitioner disincentive faces an effective prospect for have a reasonable does not claim that he believes petitioner’s claim habeas court’s entertainment Insofar as the justifiable of a petitioner’s articulation depends on the these circumstances petition, see in the earlier federal to raise the claim having failed reason Johnston, S., Sanders, Price S., 17-18; 334 U. at the fed considering the claim on the basis of evidence may very be court well eral developments postdate, the termination after, legal discovered him permit a to avail But the decision to proceedings. the state Congress is one ex under those conditions federal habeas relief self of second or succes authorizing courts to entertain pressly district made 9(b). 2244(b) Rep. § Rule See S. No. petitions sive under raising previously second (“newly is basis for discovered evidence” Corpus Advisory to Habeas Rule Committee’s Note ground); unasserted (“A newly change in the law and discovеred C., p. 427 retroactive 28 U. S. petitioner’s in which failure to assert examples” “instances are evidence excusable”). prior petition is ground *45 adjudication success: the adverse of such a claim will its bar successive-petition reassertion under the doctrine, see 28 §2244(b); supra, S. C. at Sanders, 17, U. whereas omission prevent petitioner asserting theof claim will not the from discovery claim for the first time in a should the later intervening changes of new evidence or the advent of in law Rep. Advisory 1797, invest claim with No. at merit, 2; S. Corpus Committee’s Note to Rule 289, Habeas U. S. C., p. 427. destroys cause-and-prejudice By
The test this balance. design, cause-and-prejudice standard creates a near- presumption perma- irrebuttable that omitted claims are nently only barred. not conflicts with This outcome Con- gress’ petitioner newly intent that a be free to avail himself of intervening changes Rep. discovered in law, evidence or S. Advisory 1797, 2; No. Committee’s Note to Habeas Cor- pus p. Rule C., U. S. but also subverts statu- tory disincentive to the assertion of frivolous claims. Rather cause-and-prejudice petitioner bar, than face the will assert all conceivable or not claims, whether these claims reason- ably appear possibility to have merit. The that these claims adversely adjudicated will be and thereafter be barred from relitigation successive-petition under the doctrine ef- will not fectively discourage petitioner asserting from them, petitioner virtually expectation any will have no claim withheld could be revived should his assessment of its prove promoting efficiency, merit later mistaken. Far from majority’s very type rule thus invites the of “baseless majority claims,” ante, that the seeks to avert. majority’s adoption cause-and-prejudice The of the test only manifestly pro- but also unfair. unwise, is not purpose majority’s strict-liability claimed new stand- petitioner’s ard is to increase to the maximum extent incen- investigate filing all before tive to conceivable claims his first petition. ante, merits, See at 498. Whatever its this was pe- not the rule in this case filed his first when *46 522 2244(b) § history legislative and Rule of
tition. From the
9(b)
agreement
and commen-
of courts
from the universal
McCleskey’s
supra,
have
counsel could
tators,
513,
see
investigatory
that his
efforts
conclusionbut
reached no other
against
preparing
would be measured
in
his client’s
ques-
good-faith
There can be little
standard.
the Sanders
test; indeed,
that
District
that his efforts satisfied
tion
McCleskey’s
expressly
counsel on his
that
concluded
Court
investiga-
competent
a reasonable and
first habeas conducted
concluding
on Massiah v.
that a claim based
tion before
(1964),
factual
would be without
States,
201
United
377 U. S.
App.
at 526. Before
infra,
see also
84-85;
foundation. See
enough.
today,
utter in-
The Court’s
have been
would
retroactively applying
injustice
new,
of
its
difference to the
strict-liability
in
habeas
stands
to this
standard
eagerness
protect
States
to this Court’s
marked contrast
surprise
rules” that enforce the con-
of “new
the unfair
from
wrongdo-
charged
rights
citizens
with criminal
stitutional
(1990);
ing.
412-414
McKellar,
407,
Butler v.
U. S.
See
(1990); Teague Lane,
v.
484,
494 U. S.
Parks,
Saffle
(plurality opinion).
at 299-310
S.,
compounded
injustice
in
the Court’s activism
This
is
Sykes’
applicability
fashioning
cause-
its new rule. The
litigated
and-prejudice
in either the District
test was not
question
Appeals. The additional
or the
Court
Court
reasonably
parties
requested
could have
to address
we
proof
merely
the burden of
under the
read to relate
been
evidently
put
par-
it
did not
doctrine;9
abuse-of-the-writ
contemplating change
was
ties on notice that this Court
respondent
governing legal standard, since
did not even
cause-and-prejudice
Sykes
in his brief or at oral
mention
demonstrate that a claim was
question
9 The
reads: “Must the State
corpus
petition for a writ of habeas
deliberately
in an earlier
abandoned
subsequent
claim in a
inclusion of that
order to establish that
(1990) (emphasis
of the writ?”
argument, adopt much less the Court to this standa respect, today’s departs In this too, rd.10 decision from proper judicial that inform the norms function. Heckler See (1983)(Court Campbell, 461 U. S. n. 12 will con ground support judgment only sider extraordinary not raised below
case); accord, A. Granfinanciera, S. v. Nord berg, 492 U. S. It cannot be said that Mc- Cleskey opportunity challenge reasoning had a fair majority today strip that the him invokes to of his Massiah *47 claim. I—I I—I I-H majority applies
The manner m which the
its new rule is as
objectionable
majority
as the manner in which the
creates
majority acknowledges,
that rule. As even the
ante,
see
today
470,
the standard that it announces
is not the one
employed by
Appeals,
purported
rely
the Court of
which
to
(CA11 1989).
Sanders,
on
see
10 Petitioner applicability addressed the of the cause-and- prejudiee only in reply response test his arguments brief and in raised by amicus curiae Legal Criminal Justice It Foundation. is well estab lished, however, that this Court argument by will not consider an advanced argument amicus when that passed was not raised or on below and was not by party advanced in this Court on argument being whose behalf the is Service, Mitchell, raised. See United Parcel Inc. v. n. 2 S. (1981); 520, 531, Wolfish, (1979); Bell v. 441 U. S. n. 13 Knetsch v. United States, 364 U. S. appropriate particularly been A remand have would reasoning patent in the deficiencies in view the case Appeals Appeals. that The Court of concluded Court McCleskey deliberately his Massiah claim abandoned be knowing pursue not a choice his counsel “made cause unsuccessfully having on state after raised it” collateral claim reasoning, 349. This which the ma 2d, F. review. 890 faulty. obviously jority endorse, is As I have ex declines to independent plained, is from the abuse-of-the-writ doctrine 2244(b) § procedural-default doctrines; and exhaustion 9(b) contemplate a has effec Rule habeas who proceedings tively presented but withheld his claim state application. previous Because that claim from a 2244(b) 9(b) § the district court consider authorize and Rule appropriate be circumstances, a claim it cannot under such petitioner invariably abuses con case the writ sciously failing claim first habeas to include Congress proceedings. as intended Insofar raised state withholding of claim when court excuse the district petitioner produces newly or inter discovered evidence *48 Advisory vening Rep. changes 1797, No. at law, 2; S. Corpus 9, C., to Rule 28 U. S. Committee’s Note Habeas deliberately p. petitioner cannot to have be deemed proceeding in an earlier habeas unless abandoned the claim aware then of the evidence and law that the was g., Wong support e. 241. See, Doo, S., the at claim. U. Appeals prоperly applied it Sanders, If the Court had certainly agreed the would have with District Court’s almost McCleskey not aware of the evidence conclusion that was supported peti Massiah claim when he filed his first that Appeals’ any In case, because the Court of reversal tion. application major Sanders, on erroneous the was based justified ground ity’s remand cannot be on the decision not to necessarily Appeals would have decided that the Court of way cause-and-prejudice under the standard. case same by difficulty applying Undaunted its new rule with- any preliminary out the benefit of lower court’s consider- majority forges perform independ- ation, ahead to its own majority ent review of the record. The concludes that McCleskey had no cause to withhold his Massiah claim be- supporting cause all of the evidence that claim was available petition. majority before he pur- filed his first habeas ports accept finding to the District Court’s that OffieEvans’ 21-page point, being beyond statement at was, that held McCleskey’s reach. ante, See at 498, and n.11 But the produce majority State’s failure to this document, the ex- plains, McCleskey’s furnished no excuse for failure to assert McCleskey participated his Massiah claim “because in the reported by conversations Evans,” and therefore “knew ev- erything in upon the document that the District Court relied to establish the ab initio connection between Evans and the police.” majority points Ante, at 500. The also out that no
11Nonetheless, completeness,” “for the sake of majority feels con express opinion strained to finding its that “this is not free from substantial Ante, Pointing doubt.” n. vague to certain arising clues at differ points during ent proceedings the state at trial and on direct and collateral review, majority asserts that record . . “[t]he . strong furnishes evi McCleskey dence that knew or should have known of the Evans document petition.” Ante, before the first federal n. majority’s It is the account, however, incomplete. is any Omitted is mention of the repeated State’s evasions of attempts compel counsel’s any disclosure of possession. statement in the particular, State’s In majority neglects withholding to mention the of the statement from a box of documents produced during discovery McCleskey’s action; state collateral-review represented thеse documents were comprising counsel as complete “a copy prosecutor’s resulting file prosecution from the criminal of War McCleskey County.” added). ren App. Fulton (emphasis McCles- key ultimately obtained the statement filing request under a state “open records” statute was not apply police- construed to *49 investigative years McCleskey’s files until six after first federal habeas proceeding. generally Napper Georgia Co., See Television 257 Ga. fact, too, E.S. 2d 640 missing This is majority’s from the account. testi- of the McCleskey’s discovery force impeded
external ibid. See jailer Worthy. of mony the dangerousness the hollowness —and To appreciate —of to recall District Court’s necessary it is reasoning, this did Evans in an covertly plant that State finding: central state- incriminating cell of eliciting for the adjoining purpose at trial. See against McCleskey ments that could be used credited, is it follows that finding 83. Once this App. counsel McCleskey misled and his affirmatively the State of the Massiah claim in pursuit their unsuccessful throughout their of that investigation collateral and proceedings state first pro- federal habeas McCleskey’s for preparing claim or interviewed the deposed counsel McCleskey’s ceeding. various and other attorney, jailers, govern- assistant district all of confinement, Evans’ officials responsible ment Evans knowledge agreement denied between any whom 44-47, 79, 25-28, 85. App. and the State. See deceit, the State’s background withholding this Against statement assumes critical importance. Evans’ 21-page McCleskey’s his overstates and counsel’s majority contents. example, of the statement’s For awareness when relates that state officials were present statement call made a phone McCleskey’s request Evans Exh. Plaintiff’s a fact that p. 14, McCleskey’s girlfriend, no reason to his counsel had know McCleskey and of an ab initio District Court’s strongly supports finding in any Evans and State. But relationship between lay much less what event, importance statement existence. in its Without statement said than simple had than statement, counsel more McCleskey’s nothing own of a up pos- client’s to back counsel’s testimony suspicion Massiah the state de- violation; officials’ adamant given sible ha- Evans, with the state any given nials of arrangement the Massiah claim, counsel quite beas court’s rejection in McCleskey’s this claim rеasonably raising concluded All futile. changed first habeas would be once *50 finally point, statement, obtained the for at that counsel independent credible, corroboration of counsel’s there was only gave suspicion. This additional evidence not counsel expectation previously of success that had the reasonable gave conducting lacking, but also him a basis for been further investigation underlying by it Indeed, into the claim. was piecing together the circumstances under which the state- McCleskey’s had been transcribed that counsel was ment able Worthy, finally willing was to find state official who planted adjoining had been in the cell admit that Evans McCleskey’s.12 majority’s analysis dangerous precisely of this case is
because it treats as irrelevant the effect that the State’s strategy disinformation had on counsel’s assessment of the pursing the Massiah reasonableness of claim. For the ma- jority, matters is that no external all that obstacle barred McCleskey finding Worthy. obviously, from But counsel’s support particular even to look for evidence of a decision by reasonably per- claim has to be informed what counsel prospect may to be the that the claim have merit; ceives 21-page by withholding statement case, af- firmatively misleading counsel as to the State’s involvement Evans, with state officials created climate which McCleskey’s perfectly justified first habeas counsel was in fo- cusing his attentions elsewhere. The sum and substance of analysis McCleskey majority’s is that had no “cause” for failing try to assert the Massiah claim because he did not majority gratuitously Worthy’s testimony being
12 The characterizes as contradictory McCleskey’s on the facts essential to Massiah claim. See ante, According obviously at 475. to the District Court —which is in a bet majority “Worthy position ter to know than is the never wavered from — someone, point, requested permission fact that at some his move (“The id., McCleskey.” App. 78; Evans to be near accord at 81 fact that someone, point, requested permission to move at some Evans is the one days Worthy fact from which never wavered in his two of direct and cross- examination. has introduced no affirmative evidence that Wor The state mistaken”). thy lying is either pierce deception. enough veil Because the State’s
hard conception any recog- majority from its of cаuse excludes petitioner’s can distort reason- of how state officials nition pursuit particular perception of a is claim of whether able *51 conception majority’s of “cause” creates an the worthwhile, engage very type in this state officials to incentive for misconduct. unnecessary majority
Although it to reach the the finds by McCleskey “prejudiced” question the was whether I that the ad- case, have no doubt in this Massiah violation any concep- testimony trial satisfies fair mission of Evans’ Sykes prong test. No witness from the of the tion of this identify of the four robbers which furniture store was able put off-duty police evi- The State did on officer. shot the McCleskey pearl-handled had earlier stolen the that dence weapon, likely pistol the murder to be that was determined testimony significance co- was clouded a of this but the carrying weapon been that he had defendant’s admission by prosecution App. a witness’ and time, for weeks at only prior seen the codefendant statement that she had own (District carry pistol, id., at 89 id., at 11-14. See also the [McCleskey’s]possession finding on that “the evidence Court conflicting”). gun question self- of the Outside of the was testimony easily impeachable serving codefendant, of the and directly supported only identifi- State’s evidence testimony McCleskey triggerman as the was cation of testimony found, “Evans’ As the District Court Evans. incriminating petitioner’s was critical to statements about the jury might Id., it, at 89. Without the state’s case.” very verdict. reached a different well have McCleskey be entitled to I should
Thus, record, as read corpus even under for habeas the consideration of certainly cause-and-prejudice close test. The case is fully enough can be so that the issues to warrant remand fairly briefed. H—H> majority Ironically, to defend its doctrinal inno- seeks promote respect ground “rule that it will for the vation on the Obviously, respect for the rule of 492. Ante, at of law.” responsible pronounc- with those who are must start law ing orderly majority’s of “‘the ad- invocation the law. rings justice,’” hollow when the ante, ministration precedents majority without tosses aside established itself Congress, disregards explanation, fashions rules the will persons defy expectations of the who the reasonable applies dictates, to the law’s must their conduct conform way state misconduct and de- that rewards those rules today’s is de- the writ” decision “abuse of ceit. Whatever signed majority’s comparison pales with the own to avert proper judicial function. that inform abuse norms I dissent.