McCleskey v. Zant (89-7024), 499 U.S. 467 (1991)
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No. 89-7024


[April 16, 1991]

Justice Marshall, with whom Justice Blackmun and Justice Stevens join, dissenting.

Today's decision departs drastically from the norms that inform the proper judicial function. Without even the most casual admission that it is discarding longstanding legal principles, the Court radically redefines the content of the "abuse of the writ" doctrine, substituting the strict-liability "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72 (1977), for the good-faith "deliberate abandonment" standard of Sanders v. United States, 373 U.S. 1 (1963). This doctrinal innovation, which repudiates a line of judicial decisions codified by Congress in the governing statute and procedural rules, was by no means foreseeable when the petitioner in this case filed his first federal habeas application. Indeed, the new rule announced and applied today was not even requested by respondent at any point in this litigation. Finally, rather than remand this case for reconsideration in light of its new standard, the majority performs an independent reconstruction of the record, disregarding the factual findings of the District Court and applying its new rule in a manner that encourages state officials to conceal evidence that would likely prompt a petitioner to raise a particular claim on habeas. Because I cannot acquiesce in this unjustifiable assault on the Great Writ, I dissent.


Disclaiming innovation, the majority depicts the "cause and prejudice" test as merely a clarification of existing law. Our decisions, the majority explains, have left "[m]uch confusion . . . on the standard for determining when a petitioner abuses the writ." Ante, at 8. But amidst this "confusion," the majority purports to discern a trend toward the causeand-prejudice standard and concludes that this is the rule that best comports with "our habeas corpus precedents," ante, at 21; see ante, at 26, and with the "complex and evolving body of equitable principles" that have traditionally defined the abuse-of-the-writ doctrine, id., at 20. This attempt to gloss over the break between today's decision and established precedents is completely unconvincing.

Drawing on the practice at common law in England, this Court long ago established that the power of a federal court to entertain a second or successive petition should turn not on "the inflexible doctrine of res judicata" but rather on the exercise of "sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the subject." Wong Doo v. United States, 265 U.S. 239, 240-241 (1924); accord, Salinger v. Loisel, 265 U.S. 224, 230-232 (1924). Thus, in Wong Doo, the Court held that the District Court acted within its discretion in dismissing a petition premised on a ground that was raised but expressly abandoned in an earlier petition. "The petitioner had full opportunity," the Court explained, "to offer proof [of the abandoned ground] at the hearing on the first petition; and, if he was intending to rely on that ground, good faith required that he produce the proof then." 265 U. S., at 241. Noting that the evidence supporting the abandoned ground had been "accessible all the time," the Court inferred that petitioner, an alien seeking to forestall his imminent deportation, had split his claims in order to "postpone the execution of the [deportation] order." Ibid.

In Price v. Johnston, 334 U.S. 266 (1948), in contrast, the Court held that the District Court abused its discretion by summarily dismissing a petition that raised a claim not asserted in any of three previous petitions filed by the same prisoner. Whereas it had been clear from the record that the petitioner in Wong Doo had possessed access to the facts supporting his abandoned claim, the District Court in Price had no basis for assuming that the prisoner had "acquired no new or additional information since" the disposition of his earlier petitions. Id., at 290. "[E]ven if it [had been] found that petitioner did have prior knowledge of all the facts concerning the allegation in question," the Court added, the District Court should not have dismissed the petition before affording the prisoner an opportunity to articulate "some justifiable reason [why] he was previously unable to assert his rights or was unaware of the significance of relevant facts." Id., at 291.

In Sanders v. United States, 373 U.S. 1 (1963), the Court crystallized the various factors bearing on a district court's discretion to entertain a successive petition. [n.1] The Court in Sanders distinguished successive petitions raising previously asserted grounds from those raising previously unasserted grounds. With regard to the former class of petitions, the Court explained, the district court may give "[c]ontrolling weight . . . to [the] denial of a prior application" unless "the ends of justice would . . . be served by reaching the merits of the subsequent application." Id., at 15. With regard to the latter, however, the district court must reach the merits of the petition unless "there has been an abuse of the writ . . . ." Id., at 17. In determining whether the omission of the claim from the previous petition constitutes an abuse of the writ, the judgment of the district court is to be guided chiefly by the " `[equitable] principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks.' " Ibid., quoting Fay v. Noia, 372 U.S. 391, 438 (1963).

"Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." 373 U. S., at 18.

What emerges from Sanders and its predecessors is essentially a good-faith standard. As illustrated by Wong Doo, the principal form of bad faith that the "abuse of the writ" doctrine is intended to deter is the deliberate abandonment of a claim the factual and legal basis of which are known to the petitioner (or his counsel) when he files his first petition. The Court in Sanders stressed this point by equating its analysis with that of Fay v. Noia, supra, which established the then-prevailing "deliberate bypass" test for the cognizability of claims on which a petitioner procedurally defaulted in state proceedings. See 373 U. S., at 18. A petitioner also abuses the writ under Sanders when he uses the writ to achieve some end other than expeditious relief from unlawful confinement — such as "to vex, harass, or delay." However, so long as the petitioner's previous application was based on a good-faith assessment of the claims available to him, see Price v. Johnston, supra, at 289; Wong Doo, supra, at 241; the denial of the application does not bar the petitioner from availing himself of "new or additional information," Price v. Johnston, supra, at 290, in support of a claim not previously raised. Accord, Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427.

"Cause and prejudice" — the standard currently applicable to procedural defaults in state proceedings, see Wainwright v. Sykes, 433 U.S. 72 (1977) — imposes a much stricter test. As this Court's precedents make clear, a petitioner has cause for failing effectively to present his federal claim in state proceedings only when "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule . . . ." Murray v. Carrier, 477 U.S. 478, 488 (1986). Under this test, the state of mind of counsel is largely irrelevant. Indeed, this Court has held that even counsel's reasonable perception that a particular claim is without factual or legal foundation does not excuse the failure to raise that claim in the absence of an objective, external impediment to counsel's efforts. See Smith v. Murray, 477 U.S. 527, 535-536 (1986). In this sense, the cause component of the Wainwright v. Sykes test establishes a strict liability standard. [n.2]

Equally foreign to our abuse-of-the-writ jurisprudence is the requirement that a petitioner show "prejudice." Under Sanders, a petitioner who articulates a justifiable reason for failing to present a claim in a previous habeas application is not required in addition to demonstrate any particular degree of prejudice before the habeas court must consider his claim. If the petitioner demonstrates that his claim has merit, it is the State that must show that the resulting constitutional error was harmless beyond a reasonable doubt. See L. Yackle, Postconviction Remedies 133, p. 503 (1981). [n.3]


The real question posed by the majority's analysis is not whether the cause-and-prejudice test departs from the principles of Sanders — for it clearly does — but whether the majority has succeeded in justifying this departure as an exercise of this Court's common-lawmaking discretion. In my view, the majority does not come close to justifying its new standard.


Incorporation of the cause-and-prejudice test into the abuse-of-the-writ doctrine cannot be justified as an exercise of this Court's common-lawmaking discretion, because this Court has no discretion to exercise in this area. Congress has affirmatively ratified the Sanders good-faith standard in the governing statute and procedural rules, thereby insulating that standard from judicial repeal.

The abuse-of-the-writ doctrine is embodied in 28 U.S.C. 2244(b) and in Habeas Corpus Rule 9(b). Enacted three years after Sanders, 2244(b) recodified the statutory authority of a district court to dismiss a second or successive petition, amending the statutory language to incorporate the Sanders criteria:

"[A] subsequent application for a writ of habeas corpus . . . need not be entertained by a court . . . unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court . . . is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S.C. 2244(b).

Consistent with Sanders, the purpose of the recodification was to spare a district court the obligation to entertain a petition "containing allegations identical to those asserted in a previous application that has been denied, or predicated upon grounds obviously well known to [the petitioner] when [he] filed the preceding application." S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966) (emphasis added). Rule 9(b) likewise adopts Sanders' terminology:

"A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."

There can be no question that 2244(b) and Rule 9(b) codify Sanders. The legislative history of, and Advisory Committee's Notes to, Rule 9(b) expressly so indicate, see 28 U. S. C., pp. 426-427; H. R. Rep. No. 94-1471, pp. 5-6 (1976), and such has been the universal understanding of this Court, see Rose v. Lundy, 455 U.S. 509, 521 (1982), of the lower courts, see, e. g., Williams v. Lockhart, 862 F. 2d 155, 157 (CA8 1988); Neuschafer v. Whitley, 860 F. 2d 1470, 1474 (CA9 1988), cert. denied, sub nom. Demosthenes v. Neushafer, 493 U.S. 906 (1989); 860 F. 2d, at 1479 (Alarcon, J., concurring in result); Davis v. Dugger, 829 F. 2d 1513, 1518, n. 13 (CA11 1987); Passman v. Blackburn, 797 F. 2d 1335, 1341 (CA5 1986), cert. denied, 480 U.S. 948 (1987); United States v. Talk, 597 F. 2d 249, 250-251 (CA10 1979); United States ex rel. Fletcher v. Brierley, 460 F. 2d 444, 446, n. 4A (CA3), cert. denied, 409 U.S. 1044 (1972), and of commentators, see, e. g., 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 4267, pp. 477478 (2d ed. 1988); L. Yackle, supra, 154. [n.4]

The majority concedes that 2244(b) and Rule 9(b) codify Sanders, see ante, at 19, but concludes nonetheless that Congress did "not answer" all of the "questions" concerning the abuse-of-the-writ doctrine, ante, at 18. The majority emphasizes that 2244(b) refers to second or successive petitions from petitioners who have "deliberately withheld the newly asserted ground or otherwise abused the writ" without exhaustively cataloging the ways in which the writ may "otherwise" be "abused." See ibid.; ante, at 21. From this "silenc[e]," the majority infers a congressional delegation of lawmaking power broad enough to encompass the engrafting of the cause-and-prejudice test onto the abuse-of-the-writ doctrine. Ante, at 18.

It is difficult to take this reasoning seriously. Because "cause" under Sykes makes the mental state of the petitioner (or his counsel) irrelevant, "cause" completely subsumes "deliberate abandonment." See Engle v. Isaac, 456 U.S. 107, 130, n. 36 (1982); see also Wainwright v. Sykes, 433 U. S., at 87. Thus, if merely failing to raise a claim without "cause" — that is, without some external impediment to raising it — necessarily constitutes an abuse of the writ, the statutory reference to deliberate withholding of a claim would be rendered superfluous. Insofar as Sanders was primarily concerned with limiting dismissal of a second or subsequent petition to instances in which the petitioner had deliberately abandoned the new claim, see 373 U. S., at 18, the suggestion that Congress invested courts with the discretion to read this language out of the statute is completely irreconcilable with the proposition that 2244(b) and Rule 9(b) codify Sanders.

To give content to "otherwise abus[e] the writ" as used in 2244(b), we must look to Sanders. As I have explained, the Court in Sanders identified two broad classes of bad-faith conduct that bar adjudication of a claim not raised in a previous habeas application: the deliberate abandonment or withholding of that claim from the first petition; and the filing of a petition aimed at some purpose other than expeditious relief from unlawful confinement, such as "to vex, harass, or delay." See ibid. By referring to second or successive applications from habeas petitioners who have "deliberately withheld the newly asserted ground or otherwise abused the writ," 2244(b) tracks this division. Congress may well have selected the phrase "otherwise abused the writ" with the expectation that courts would continue to elaborate upon the types of dilatory tactics that, in addition to deliberate abandonment of a known claim, constitute an abuse of the writ. But consistent with Congress' intent to codify Sanders' good-faith test, such elaborations must be confined to circumstances in which a petitioner's omission of an unknown claim is conjoined with his intentional filing of a petitition for an improper purpose, such as "to vex, harass or delay."

The majority tacitly acknowledges this constraint on the Court's interpretive discretion by suggesting that "cause" is tantamount to "inexcusable neglect." This claim, too, is untenable. The majority exaggerates when it claims that the "inexcusable neglect" formulation — which this Court has never applied in an abuse-of-the-writ decision — functions as an independent standard for evaluating a petitioner's failure to raise a claim in a previous habeas application. It is true that Sanders compared its own analysis to the analysis in Townsend v. Sain, 372 U.S. 293 (1963), which established that a district court should deny an evidentiary hearing if the habeas petitioner inexcusably neglected to develop factual evidence in state proceedings. See id., at 317. Townsend, however, expressly equated "inexcusable neglect" with the "deliberate bypass" test of Fay v. Noia. See 372 U. S., at 317. [n.5] But even if "inexcusable neglect" does usefully describe a class of abuses separate from deliberate abandonment, the melding of "cause and prejudice" into the abuse-of-the-writ doctrine cannot be defended as a means of "giving content" to "inexcusable neglect." Ante, at 21. For under Sykes' strict-liability standard, mere attorney negligence is never excusable. See Murray v. Carrier, 477 U. S., at 488 ("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective . . . , we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default").

Confirmation that the majority today exercises legislative power not properly belonging to this Court is supplied by Congress' own recent consideration and rejection of an amendment to 2244(b). It is axiomatic that this Court does not function as a backup legislature for the reconsideration of failed attempts to amend existing statutes. See Bowsher v. Merck & Co., 460 U.S. 824, 837, n. 12 (1983); FTC v. Ruberoid Co., 343 U.S. 470, 478-479 (1952); see also North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 534-535 (1982). Yet that is exactly the effect of today's decision. As reported out of the House Committee on the Judiciary, 1303 of H. R. 5269, 101st Cong., 2d Sess. (1990), would have required dismissal of any second or subsequent application by a habeas petitioner under sentence of death unless the petitioner raised a new claim "the factual basis of [which] could not have been discovered by the exercise of reasonable diligence," H. R. Rep. No. 101-681, pt. 1, p. 29 (1990) (emphasis added). [n.6] The Committee Report accompanying this legislation explained that "courts have properly construed section 2244(b) and Rule 9(b) as codifications of the guidelines the [Supreme] Court itself prescribed in Sanders." Id., at 119 (citation omitted). The Report justified adoption of the tougher "reasonable diligence" standard on the ground that "[t]he Sanders guidelines have not . . . satisfactorily met concerns that death row prisoners may file second or successive habeas corpus applications as a means of extending litigation." Ibid. Unfazed by Congress' rejection of this legislation, the majority arrogates to itself the power to repeal Sanders and to replace it with a tougher standard. [n.7]


Even if the fusion of cause-and-prejudice into the abuse-of-the-writ doctrine were not foreclosed by the will of Congress, the majority fails to demonstrate that such a rule would be a wise or just exercise of the Court's common-lawmaking discretion. In fact, the majority's abrupt change in law subverts the policies underlying 2244(b) and unfairly prejudices the petitioner in this case.

The majority premises adoption of the cause-and-prejudice test almost entirely on the importance of "finality." See ante, at 22-24. At best, this is an insufficiently developed justification for cause-and-prejudice or any other possible conception of the abuse-of-the-writ doctrine. For the very essence of the Great Writ is our criminal justice system's commitment to suspending "[c]onventional notions of finality of litigation . . . where life or liberty is at stake and infringement of constitutional rights is alleged." Sanders, 373 U. S., at 8. To recognize this principle is not to make the straw-man claim that the writ must be accompanied by " `[a] procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude.' " Ante, at 23, quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 452 (1963). Rather, it is only to point out the plain fact that we may not, "[u]nder the guise of fashioning a procedural rule, . . . wip[e] out the practical efficacy of a jurisdiction conferred by Congress on the District Courts." Brown v. Allen, 344 U.S. 443, 498-499 (1953) (opinion of Frankfurter, J.).

The majority seeks to demonstrate that cause-and-prejudice strikes an acceptable balance between the state's interest in finality and the purposes of habeas corpus by analogizing the abuse-of-the-writ doctrine to the procedural-default doctrine. According to the majority, these two doctrines "implicate nearly identical concerns flowing from the significant costs of federal habeas corpus review." Ante, at 22. And because this Court has already deemed cause-and-prejudice to be an appropriate standard for assessing procedural defaults, the majority reasons, the same standard should be used for assessing the failure to raise a claim in a previous habeas petition. See ante, at 21-25.

This analysis does not withstand scrutiny. This Court's precedents on the procedural-default doctrine identify two purposes served by the cause-and-prejudice test. The first purpose is to promote respect for a State's legitimate procedural rules. See, e. g., Reed v. Ross, 468 U.S. 1, 14 (1984); Sykes, 433 U. S., at 87-90. As the Court has explained, the willingness of a habeas court to entertain a claim that a state court has deemed to be procedurally barred "undercut[s] the State's ability to enforce its procedural rules," Engle v. Isaac, 456 U. S., at 129, and may cause "state courts themselves [to be] less stringent in their enforcement," Sykes, supra, at 89. See generally Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1150-1158 (1986). The second purpose of the cause-and-prejudice test is to preserve the connection between federal collateral review and the general "deterrent" function served by the Great Writ. " `[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards.' " Teague v. Lane, 489 U.S. 288, 306 (1989) (plurality opinion), quoting Desist v. United States, 394 U.S. 244, 262-263 (1969) (Harlan, J., dissenting); see Rose v. Mitchell, 443 U.S. 545, 563 (1979). Obviously, this understanding of the disciplining effect of federal habeas corpus presupposes that a criminal defendant has given the state trial and appellate courts a fair opportunity to pass on his constitutional claims. See Murray v. Carrier, 477 U. S., at 487; Engle v. Isaac, supra, at 128-129. With regard to both of these purposes, the strictness of the cause-and-prejudice test has been justified on the ground that the defendant's procedural default is akin to an independent and adequate state-law ground for the judgment of conviction. See Sykes, supra, at 81-83.

Neither of these concerns is even remotely implicated in the abuse-of-the-writ setting. The abuse-of-the-writ doctrine clearly contemplates a situation in which a petitioner (as in this case) has complied with applicable state-procedural rules and effectively raised his constitutional claim in state proceedings; were it otherwise, the abuse-of-the-writ doctrine would not perform a screening function independent from that performed by the procedural-default doctrine and by the requirement that a habeas petitioner exhaust his state remedies, see 28 U.S.C. 2254(b), (c). Cf. ante, at 18. Because the abuse-of-the-writ doctrine presupposes that the petitioner has effectively raised his claim in state proceedings, a decision by the habeas court to entertain the claim notwithstanding its omission from an earlier habeas petition will neither breed disrespect for state-procedural rules nor unfairly subject state courts to federal collateral review in the absence of a state-court disposition of a federal claim. [n.8]

Because the abuse-of-the-writ doctrine addresses the situation in which a federal habeas court must determine whether to hear a claim withheld from another federal habeas court, the test for identifying an abuse must strike an appropriate balance between finality and review in that setting. Only when informed by Sanders does 2244(b) strike an efficient balance. A habeas petitioner's own interest in liberty furnishes a powerful incentive to assert in his first petition all claims that the petitioner (or his counsel) believes have a reasonable prospect for success. See Note, 83 Harv. L. Rev. 1038, 1153-1154 (1970); see also Rose v. Lundy, 455 U. S., at 520 ("The prisoner's principal interest, of course, is in obtaining speedy federal relief on his claims"). Sanders' bar on the later assertion of claims omitted in bad faith adequately fortifies this natural incentive. At the same time, however, the petitioner faces an effective disincentive to asserting any claim that he believes does not have a reasonable prospect for success: the adverse adjudication of such a claim will bar its reassertion under the successive-petition doctrine, see 28 U.S.C. 2244(b); Sanders, supra, at 17, whereas omission of the claim will not prevent the petitioner from asserting the claim for the first time in a later petition should the discovery of new evidence or the advent of intervening changes in law invest the claim with merit, S. Rep. No. 1797, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427.

The cause-and-prejudice test destroys this balance. By design, the cause-and-prejudice standard creates a nearirrebuttable presumption that omitted claims are permanently barred. This outcome not only conflicts with Congress' intent that a petitioner be free to avail himself of newly discovered evidence or intervening changes in law, S. Rep. No. 1797, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427, but also subverts the statutory disincentive to the assertion of frivolous claims. Rather than face the cause-and-prejudice bar, a petitioner will assert all conceivable claims, whether or not these claims reasonably appear to have merit. The possibility that these claims will be adversely adjudicated and thereafter be barred from relitigation under the successive-petition doctrine will not effectively discourage the petitioner from asserting them, for the petitioner will have virtually no expectation that any withheld claim could be revived should his assessment of its merit later prove mistaken. Far from promoting efficiency, the majority's rule thus invites the very type of "baseless claims," ante, at 24, that the majority seeks to avert.

The majority's adoption of the cause-and-prejudice test is not only unwise, but also manifestly unfair. The proclaimed purpose of the majority's new strict-liability standard is to increase to the maximum extent a petitioner's incentive to investigate all conceivable claims before filing his first petition. See ante, at 29. Whatever its merits, this was not the rule when the petitioner in this case filed his first petition. From the legislative history of 2244(b) and Rule 9(b) and from the universal agreement of courts and commentators, see supra, at 8, McCleskey's counsel could have reached no other conclusion but that his investigatory efforts in preparing his client's petition would be measured against the Sanders good-faith standard. There can be little question that his efforts satisfied that test; indeed, the District Court expressly concluded that McCleskey's counsel on his first habeas conducted a reasonable and competent investigation before concluding that a claim based on Massiah v. United States, 377 U.S. 201 (1964), would be without factual foundation. See App. 84-85; see also infra, at 21. Before today, that would have been enough. The Court's utter indifference to the injustice of retroactively applying its new, strict-liability standard to this habeas petitioner stands in marked contrast to this Court's eagerness to protect States from the unfair surprise of "new rules" that enforce the constitutional rights of citizens charged with criminal wrongdoing. See Butler v. McKellar, 494 U. S. —, — (1990); Saffle v. Parks, 494 U. S. —, — (1990); Teague v. Lane, 489 U. S., at 299-310 (plurality opinion).

This injustice is compounded by the Court's activism in fashioning its new rule. The applicability of Sykes' causeand-prejudice test was not litigated in either the District Court or the Court of Appeals. The additional question that we requested the parties to address reasonably could have been read to relate merely to the burden of proof under the abuse-of-the-writ doctrine; [n.9] it evidently did not put the parties on notice that this Court was contemplating a change in the governing legal standard, since respondent did not even mention Sykes or cause-and-prejudice in its brief or at oral argument, much less request the Court to adopt this standard. [n.10] In this respect, too, today's decision departs from norms that inform the proper judicial function. See Heckler v. Campbell, 461 U.S. 458, 468, n. 12 (1983) (Court will consider ground in support of judgment not raised below only in extraordinary case); accord, Granfinanciera, S. A. v. Nord berg, 492 U.S. 33, 39 (1989). It cannot be said that Mc Cleskey had a fair opportunity to challenge the reasoning that the majority today invokes to strip him of his Massiah claim.


The manner in which the majority applies its new rule is as objectionable as the manner in which the majority creates that rule. As even the majority acknowledges, see ante, at 1, the standard that it announces today is not the one employed by the Court of Appeals, which purported to rely on Sanders, see 890 F. 2d 342, 347 (CA 11 1989). See ante, at 1. Where, as here, application of a different standard from the one applied by the lower court requires an in-depth review of the record, the ordinary course is to remand so that the parties have a fair opportunity to address, and the lower court to consider, all of the relevant issues. See, e. g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986); Mandel v. Bradley, 432 U.S. 173, 179 (1977) (per curiam); see also United States v. Hasting, 461 U.S. 499, 515-518 (1983) (Stevens, J., concurring in judgment) (Court should not undertake record-review "function that can better be performed by other judges").

A remand would have been particularly appropriate in this case in view of the patent deficiencies in the reasoning of the Court of Appeals. The Court of Appeals concluded that McCleskey deliberately abandoned his Massiah claim because his counsel "made a knowing choice not to pursue the claim after having raised it" unsuccessfully on state collateral review. 890 F. 2d, at 349. This reasoning, which the majority declines to endorse, is obviously faulty. As I have explained, the abuse-of-the-writ doctrine is independent from the procedural-default and exhaustion doctrines; 2244(b) and Rule 9(b) contemplate a habeas petitioner who has effectively presented his claim in state proceedings but withheld that claim from a previous habeas application. Because 2244(b) and Rule 9(b) authorize the district court to consider such a claim under appropriate circumstances, it cannot be the case that a petitioner invariably abuses the writ by consciously failing to include in his first habeas petition a claim raised in state proceedings. Insofar as Congress intended that the district court excuse the withholding of a claim when the petitioner produces newly discovered evidence or intervening changes in law, S. Rep. No. 1797, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427, a petitioner cannot be deemed to have deliberately abandoned the claim in an earlier habeas proceeding unless the petitioner was aware then of the evidence and law that support the claim. See, e. g., Wong Doo, 265 U. S., at 241. If the Court of Appeals had properly applied Sanders, it would almost certainly have agreed with the District Court's conclusion that McCleskey was not aware of the evidence that supported his Massiah claim when he filed his first petition. In any case, because the Court of Appeals' reversal was based on an erroneous application of Sanders, the majority's decision not to remand cannot be justified on the ground that the Court of Appeals would necessarily have decided the case the same way under the cause-and-prejudice standard.

Undaunted by the difficulty of applying its new rule without the benefit of any lower court's preliminary consideration, the majority forges ahead to perform its own independent review of the record. The majority concludes that McCleskey had no cause to withhold his Massiah claim because all of the evidence supporting that claim was available before he filed his first habeas petition. The majority purports to accept the District Court's finding that Offie Evans' 21-page statement was, at that point, being held beyond McCleskey's reach. See ante, at 29-30, and n. *. [n.11] But the State's failure to produce this document, the majority explains, furnished no excuse for McCleskey's failure to assert his Massiah claim "because McCleskey participated in the conversations reported by Evans," and therefore "knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police." Ante, at 31. The majority also points out that no external force impeded McCleskey's discovery of the testimony of jailer Worthy. See ibid.

To appreciate the hollowness — and the dangerousness — of this reasoning, it is necessary to recall the District Court's central finding: that the State did covertly plant Evans in an adjoining cell for the purpose of eliciting incriminating statements that could be used against McCleskey at trial. See App. 83. Once this finding is credited, it follows that the State affirmatively misled McCleskey and his counsel throughout their unsuccessful pursuit of the Massiah claim in state collateral proceedings and their investigation of that claim in preparing for McCleskey's first federal habeas proceeding. McCleskey's counsel deposed or interviewed the assistant district attorney, various jailers, and other government officials responsible for Evans' confinement, all of whom denied any knowledge of an agreement between Evans and the State. See App. 25-28, 44-47, 79, 85.

Against this background of deceit, the State's withholding of Evans' 21-page statement assumes critical importance. The majority overstates McCleskey's and his counsel's awareness of the statement's contents. For example, the statement relates that state officials were present when Evans made a phone call at McCleskey's request to McCleskey's girlfriend, Plaintiff's Exh. 8, p. 14, a fact that McCleskey and his counsel had no reason to know and that strongly supports the District Court's finding of an ab initio relationship between Evans and the State. But in any event, the importance of the statement lay much less in what the statement said than in its simple existence. Without the statement, McCleskey's counsel had nothing more than his client's testimony to back up counsel's own suspicion of a possible Massiah violation; given the state officials' adamant denials of any arrangement with Evans, and given the state habeas court's rejection of the Massiah claim, counsel quite reasonably concluded that raising this claim in McCleskey's first habeas petition would be futile. All this changed once counsel finally obtained the statement, for at that point, there was credible, independent corroboration of counsel's suspicion. This additional evidence not only gave counsel the reasonable expectation of success that had previously been lacking, but also gave him a basis for conducting further investigation into the underlying claim. Indeed, it was by piecing together the circumstances under which the statement had been transcribed that McCleskey's counsel was able to find Worthy, a state official who was finally willing to admit that Evans had been planted in the cell adjoining McCleskey's. [n.12]

The majority's analysis of this case is dangerous precisely because it treats as irrelevant the effect that the State's disinformation strategy had on counsel's assessment of the reasonableness of pursing the Massiah claim. For the majority, all that matters is that no external obstacle barred McCleskey from finding Worthy. But obviously, counsel's decision even to look for evidence in support of a particular claim has to be informed by what counsel reasonably perceives to be the prospect that the claim may have merit; in this case, by withholding the 21-page statement and by affirmatively misleading counsel as to the State's involvement with Evans, state officials created a climate in which McCleskey's first habeas counsel was perfectly justified in focusing his attentions elsewhere. The sum and substance of the majority's analysis is that McCleskey had no "cause" for failing to assert the Massiah claim because he did not try hard enough to pierce the State's veil of deception. Because the majority excludes from its conception of cause any recognition of how state officials can distort a petitioner's reasonable perception of whether pursuit of a particular claim is worthwhile, the majority's conception of "cause" creates an incentive for state officials to engage in this very type of misconduct.

Although the majority finds it unnecessary to reach the question whether McCleskey was "prejudiced" by the Massiah violation in this case, I have no doubt that the admission of Evans' testimony at trial satisfies any fair conception of this prong of the Sykes test. No witness from the furniture store was able to identify which of the four robbers shot the off-duty police officer. The State did put on evidence that McCleskey had earlier stolen the pearl-handled pistol that was determined to be the likely murder weapon, but the significance of this testimony was clouded by a co-defendant's admission that he had been carrying this weapon for weeks at a time, App. 16, and by a prosecution witness' own prior statement that she had seen only the codefendant carry the pistol, id., at 11-14. See also id., at 89 (District Court finding that "the evidence on [McCleskey's] possession of the gun in question was conflicting"). Outside of the self-serving and easily impeachable testimony of the codefendant, the only evidence that directly supported the State's identification of McCleskey as the triggerman was the testimony of Evans. As the District Court found, "Evans' testimony about the petitioner's incriminating statements was critical to the state's case." Id., at 89. Without it, the jury might very well have reached a different verdict.

Thus, as I read the record, McCleskey should be entitled to the consideration of his petition for habeas corpus even under the cause-and-prejudice test. The case is certainly close enough to warrant a remand so that the issues can be fully and fairly briefed.


Ironically, the majority seeks to defend its doctrinal innovation on the ground that it will promote respect for the "rule of law." Ante, at 24. Obviously, respect for the rule of law must start with those who are responsible for pronouncing the law. The majority's invocation of " `the orderly administration of justice,' " ante, at 27, rings hollow when the majority itself tosses aside established precedents without explanation, disregards the will of Congress, fashions rules that defy the reasonable expectations of the persons who must conform their conduct to the law's dictates, and applies those rules in a way that rewards state misconduct and deceit. Whatever "abuse of the writ" today's decision is designed to avert pales in comparison with the majority's own abuse of the norms that inform the proper judicial function.

I dissent.


1 Although Sanders examined the abuse-of-the-writ question in the context of a motion for collateral review filed under 28 U.S.C. 2255 the Court made it clear that the same principles apply in the context of a petition for habeas corpus filed under 28 U.S.C. 2254. See 373 U. S., at 12-15.

2 Contrary to the majority's suggestion, this Court's more recent decisions on abuse of the writ by no means foreshadowed the shift to Sykes' strict-liability standard. The cases cited by the majority all involved eleventh-hour dispositions of capital stay applications, and the cursory analysis in each ruling suggests merely that the habeas petitioner failed to carry his burden of articulating a credible explanation for having failed to raise the claim in an earlier petition. See Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427 ("[T]he petitioner has the burden of proving that he has not abused the writ"); accord, Price v. Johnston, 334 U.S. 266, 292 (1948); see also Sanders v. United States, 373 U.S. 1, 10 (1963) (Government merely has burden to plead abuse of the writ). Thus, in Woodard v. Hutchins, 464 U.S. 377 (1984) (per curiam), the five Justices concurring in the order concluded that the habeas petitioner had abused the writ because he "offer[ed] no explanation for having failed to raise [three new] claims in his first petition for habeas corpus." Id., at 379 (Powell, J., joined by Burger, C. J., Blackmun, Rehnquist, and O'Connor, JJ., concurring in order vacating stay) (emphasis added). A petitioner who gives no explanation for omitting his claims from a previous application necessarily fails to carry his burden of justification. Similarly, in Antone v. Dugger, 465 U.S. 200 (1984) (per curiam), the Court rejected as "meritless" the petitioner's claim that the imminence of his execution prevented his counsel from identifying all of the claims that could be raised in the first petition, because the petitioner's execution had in fact been stayed during the pendency of the original habeas proceeding. Id., at 206, n. 4. Finally, in Delo v. Stokes, 495 U. S. — (1990) (per curiam), the Court in a five-sentence analysis concluded that the petitioner had abused the writ by raising a claim the legal basis of which was readily apparent at the time of the first petition. Id., at ---. The opinion says nothing about whether the petitioner offered any explanation to rebut the presumption that the petitioner had deliberately abandoned this claim. In short, the analysis in these decisions is as consistent with Sanders' deliberate-abandonment test as with Sykes' cause-and-prejudice test.

3 The majority is simply incorrect, moreover, when it claims that the "prejudice" component of the Sykes test is "[w]ell-defined in the case law." Ante, at 27. The Court in Sykes expressly declined to define this concept, see 433 U. S., at 91, and since then, the Court has elaborated upon "prejudice" only as it applies to nonconstitutional jury-instruction challenges, leaving the "the import of the term in other situations . . . an open question." United States v. Frady, 456 U.S. 152, 168 (1982). Thus, far from resolving "confusion" over the proper application of the abuse of the writ doctrine, today's decision creates it.

4 In this respect, the abuse-of-the-writ doctrine rests on a different foundation from the procedural-default doctrine. In Wainwright v. Sykes, 433 U.S. 72 (1977), the Court emphasized that the procedural-default rule set down in Fay v. Noia, 372 U.S. 391 (1963), derived only from "comity" considerations, 433 U. S., at 83, and explained that the content of this doctrine is therefore subject to the Court's traditional, common-law discretion "to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged," id., at 81. But unlike Fay v. Noia's "deliberate bypass" test for procedural defaults, the "deliberate abandonment" test of Sanders has been expressly ratified by Congress. This legislative action necessarily constrains the scope of this Court's common-lawmaking discretion.

5 Indeed, Congress expressly amended Rule 9(b) to eliminate language that would have established a standard similar to "inexcusable neglect." As initially submitted to Congress, Rule 9(b) would have authorized a district court to entertain a second or successive petition raising a previously unasserted ground unless the court "finds that the failure of the petitioner to assert th[at] groun[d] in a prior petition is not excusable." H. R. Rep. No. 94-1471, p. 8 (1976) (emphasis added). Explaining that "the `not excusable' language [would] creat[e] a new and undefined standard that [would] g[ive] a judge too broad a discretion to dismiss a second or successive petition," Congress substituted Sanders' "abuse of the writ" formulation. See id., at 5. This amendment was designed to "brin[g] Rule 9(b) into conformity with existing law." Ibid.

6 House bill 5269 was the House version of the legislation that became the Crime Control Act of 1990, Pub. L. 101-647, 104 Stat. 4789 the final version of which left 2244(b) unamended.

7 Moreover, the rejected amendment to 2244(b) would have changed the standard only for second or subsequent petitions filed by petitioners under a sentence of death, leaving the Sanders standard intact for noncapital petitioners. The majority's decision today changes the standard for all habeas petitioners.

8 Insofar as the habeas court's entertainment of the petitioner's claim in these circumstances depends on the petitioner's articulation of a justifiable reason for having failed to raise the claim in the earlier federal petition, see Sanders, 373 U. S., at 17-18; Price v. Johnston, 334 U. S., at 291, the federal court may very well be considering the claim on the basis of evidence discovered after, or legal developments that postdate, the termination of the state proceedings. But the decision to permit a petitioner to avail himself of federal habeas relief under those conditions is one that Congress expressly made in authorizing district courts to entertain second or successive petitions under 2244(b) and Rule 9(b). See S. Rep. No. 1797, at 2 ("newly discovered evidence" is basis for second petition raising previously unasserted ground); Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427 ("A retroactive change in the law and newly discovered evidence are examples" of "instances in which petitioner's failure to assert a ground in a prior petition is excusable").

9 The question reads: "Must the State demonstrate that a claim was deliberately abandoned in an earlier petition for a writ of habeas corpus in order to establish that inclusion of that claim in a subsequent habeas petition constitutes abuse of the writ?" 496 U. S. — (1990) (emphasis added).

10 Petitioner McCleskey addressed the applicability of the cause-and-prejudice test only in his reply brief and in response to arguments raised by amicus curiae Criminal Justice Legal Foundation. It is well established, however, that this Court will not consider an argument advanced by amicus when that argument was not raised or passed on below and was not advanced in this Court by the party on whose behalf the argument is being raised. See United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, n. 2 (1981); Bell v. Wolfish, 441 U.S. 520, 531, n. 13 (1979); Knetsch v. United States, 364 U.S. 361, 370 (1960).

11 Nonetheless, "for the sake of completeness," the majority feels constrained to express its opinion that "this finding is not free from substantial doubt." Ante, at 30, n. *. Pointing to certain vague clues arising at different points during the state proceedings at trial and on direct and collateral review, the majority asserts that "[t]he record . . . furnishes strong evidence that McCleskey knew or should have known of the Evans document before the first federal petition." Ibid. It is the majority's account, however, that is incomplete. Omitted is any mention of the State's evasions of counsel's repeated attempts to compel disclosure of any statement in the State's possession. In particular, the majority neglects to mention the withholding of the statement from a box of documents produced during discovery in McCleskey's state collateral-review action; these documents were represented to counsel as comprising "a complete copy of the prosecutor's file resulting from the criminal prosecution of Warren McCleskey in Fulton County." App. 29 (emphasis added). McCleskey ultimately obtained the statement by filing a request under a state "open records" statute that was not construed to apply to police-investigative files until six years after McCleskey's first federal habeas proceeding. See generally Napper v. Georgia Television Co., 257 Ga. 156, 356 S. E. 2d 640 (1987). This fact, too, is missing from the majority's account.

12 The majority gratuitously characterizes Worthy's testimony as being contradictory on the facts essential to McCleskey's Massiah claim. See ante, at 6. According to the District Court — which is obviously in a better position to know than is the majority — "Worthy never wavered from the fact that someone, at some point, requested his permission to move Evans to be near McCleskey." App. 78; accord id., at 81 ("The fact that someone, at some point, requested his permission to move Evans is the one fact from which Worthy never wavered in his two days of direct and cross-examination. The state has introduced no affirmative evidence that Worthy is either lying or mistaken").