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No. 95-6510


on writ of certiorari to the united states court of appeals for the fourth circuit

[June 20, 1996]

Chief Justice Rehnquist delivered the opinion of the Court.

Petitioner, convicted of capital murder, complains that his right to due process of law under the Fourteenth Amendment was violated because he was not given adequate notice of some of the evidence the Commonwealth intended to use against him at the penalty hearing of his trial. We hold that this claim would necessitate a "new rule," and that therefore it does not provide a basis on which he may seek federal habeas relief.

Richard McClelland was the manager of a department store, Murphy's Mart, in Portsmouth, Virginia. On May 2, 1985, at approximately 9:30 p.m., petitioner and Melvin Tucker, a friend, both under the influence of cocaine, parked in the parking lot of the Murphy's Mart and watched McClelland and a store security guard inside. Shortly before midnight, McClelland and the guard came out of the store and left in separate automobiles. With Tucker in the passenger seat, petitioner followed McClelland, pulled in front of his car at a stop sign, threatened him with a .32 caliber revolver, ordered him into petitioner's car, and struck him. Petitioner and Tucker took McClelland's wallet and threatened to harm his family if he did not cooperate. Gray v. Commonwealth, 233 Va. 313, 340-341, 356 S. E. 2d 157, 172, cert. denied, 484 U.S. 873 (1987).

Petitioner drove the car back to the Murphy's Mart, where he forced McClelland at gunpoint to reopen the store. They filled three gym bags with money, totaling between $12,000 and $13,000. Petitioner drove McClelland and Tucker to a service station, bought gasoline for his car and for a gas can in the car's trunk, and proceeded to a remote side road. He took McClelland 15 to 20 feet behind the car and ordered him to lie down. While McClelland begged petitioner not to hurt or shoot him, petitioner assured him he would not be harmed. Having thus assured McClelland, petitioner fired 6 pistol shots into the back of his head in rapid succession. Id., at 341-342, 356 S. E. 2d, at 172-173.

Leaving McClelland's dead body on the side road, petitioner and Tucker returned to the intersection where they had seized him. Petitioner, telling Tucker he wanted to destroy McClelland's car as evidence, doused its interior with gasoline and lit it with a match. Id., at 341-342, 356 S. E. 2d, at 173.

Petitioner and Tucker were later arrested and indicted in the Circuit Court of the City of Suffolk on several counts, including capital murder. Having evidence that petitioner had announced before the killing that "he was going to get" McClelland for having fired his wife from her job as a saleswoman at the Murphy's Mart, and that petitioner had told other witnesses after the killing that he had performed it, the prosecutor entered into a plea bargain with Tucker. In return for being tried for first degree murder instead of capital murder, Tucker would testify at petitioner's trial about events leading up to the killing and would identify petitioner as the actual "trigger man." Id., at 331, 356 S. E. 2d, at 167.

On Monday, December 2, 1985, petitioner's trial began. Petitioner's counsel moved that the trial court order the prosecution to disclose the evidence it planned to introduce in the penalty phase. The prosecutor acknowledged that "in the event [petitioner] is found guilty we do intend to introduce evidence of statements he has made to other people about other crimes he has committed of which he has not been convicted." 14 Record 8. In particular, the prosecution intended to show that petitioner had admitted to a notorious double murder in Chesapeake, a city adjacent to Suffolk. Lisa Sorrell and her 3 year old daughter, Shanta, had been murdered five months before McClelland was killed. The prosecutor told petitioner's counsel in court that the only evidence he would introduce would be statements by petitioner to Tucker or fellow inmates that he committed these murders. Id., at 11.

On Thursday, December 5, 1985, the jury convicted petitioner on all counts. That evening, the prosecution informed petitioner's counsel that the Commonwealth would introduce evidence, beyond petitioner's own admissions, linking petitioner to the Sorrell murders. The additional evidence included photographs of the crime scene and testimony by the police detective who investigated the murders and by the state medical examiner who performed autopsies on the Sorrells' bodies. The testimony was meant to show that the manner in which Lisa and Shanta Sorrell had been killed resembled the manner in which McClelland was killed. The next morning, petitioner's counsel made two motions "to have excluded from evidence during [the] penalty trial any evidence pertaining to any . . . felony for which the defendant has not yet been charged." 18 id., at 776. Counsel argued that the additional evidence exceeded the scope of unadjudicated crime evidence admissible for sentencing under Virginia law, because "[i]n essence, what [the prosecutor is] doing is trying [the Sorrell] case in the minds of the jurors." Id., at 724 (citing Watkins v. Commonwealth, 229 Va. 469, 331 S. E. 2d 422 (1985), cert. denied, 475 U.S. 1099 (1986)). Although counsel also complained that he was not "prepared for any of this [additional evidence], other than [that petitioner] may have made some incriminating statements," 18 Record 725, and that the "[d]efense was taken by surprise," id., at 777, he never requested a continuance. The trial court denied the motions to exclude.

During the sentencing phase, Tucker testified that, shortly after the McClelland murder, Gray pointed to a picture of Lisa Sorrell in a newspaper and told Tucker that he had "knocked off" Sorrell. Petitioner's counsel did not cross examine Tucker. Officer Michael Slezak, who had investigated the Sorrell murders, testified that he found Lisa's body in the front seat of a partially burned automobile and Shanta's body in the trunk. Dr. Faruk Presswalla, the medical examiner who had performed autopsies on the bodies, testified that Lisa was killed by six bullets to the head, shot from a .32 caliber gun. Gray, supra, at 345, 356 S. E. 2d, at 175. Petitioner's counsel did not cross examine Dr. Presswalla, and only cross examined Officer Slezak to suggest that McClelland's murder may have been a "copycat" murder, committed by a different perpetrator. 18 Record 793, 802. [n.1]

The jury fixed petitioner's sentence for McClelland's murder at death. The trial court entered judgment on the verdicts for all the charges against petitioner and sentenced him to death. The Virginia Supreme Court affirmed, 233 Va. 313, 356 S. E. 2d 157, and we denied certiorari, Gray v. Virginia, 484 U.S. 873 (1987). The Suffolk Circuit Court dismissed petitioner's state petition for a writ of habeas corpus. The Virginia Supreme Court affirmed the dismissal, and we denied certiorari. Gray v. Thompson, 500 U.S. 949 (1991).

Petitioner then sought a writ of habeas corpus from the United States District Court for the Eastern District of Virginia. With respect to the Sorrell murders, he argued, inter alia, that he had "never been convicted of any of these crimes nor was he awaiting trial for these crimes," that the Commonwealth "did not disclose its intentions to use the Sorrell murders as evidence against [him] until such a late date that it was impossible for [his] defense counsel reasonably to prepare or defend against such evidence at trial," and that Tucker " `sold' his testimony to the Commonwealth for . . . less than a life sentence." 1 Joint Appendix in No. 94-4009 (CA4), pp. 32-33 (hereinafter J. A.).

The Commonwealth moved to dismiss the petition. To clarify its arguments against petitioner's Sorrell murder claim, it characterized petitioner's allegations as seven separate subclaims. The first subclaim asserted that petitioner was given "inadequate notice of the evidence which the Commonwealth intended to introduce to permit him to defend against it," and the third, relying on Brady v. Maryland, 373 U.S. 83 (1963), asserted that "[t]he Commonwealth failed to disclose evidence tending to prove that someone else had committed the Sorrell murders." [n.2] Respondent's Brief in Support of Motion to Dismiss in No. 3:91CV693 (ED Va.), p. 2. According to the State, the notice of evidence subclaim was meritless and could not be the basis for relief in federal habeas corpus proceedings because it sought the retroactive application of a new rule of constitutional law. Id., at 18-19, 19-20. The Commonwealth alleged that the Brady subclaim had not been presented to the state courts on direct appeal or in state habeas corpus proceedings, and was thus procedurally barred under Virginia Code §8.01-654(B)(2). Respondent's Brief in Support of Motion to Dismiss, supra, at 19.

Initially, the District Court dismissed the habeas petition. The court adopted the Commonwealth's characterization of petitioner's Sorrell claim. See 1 J. A. 193. The court held that petitioner was not entitled to relief on the notice of evidence subclaim, because he "has no constitutional right to notice of individual items of testimony which the Commonwealth intends to introduce at the penalty phase." Id., at 194. The court declined to review the Brady subclaim because it was procedurally barred. 1 J. A. 194.

Later, on petitioner's motion, the District Court amended its judgment to find within petitioner's Sorrell claim a specific due process claim about the admissibility of the Sorrell murder evidence. Id., at 252. (In amending this judgment, the court announced that it remained unchanged as to the remaining claims, which it had dismissed. Id., at 251.) After holding an evidentiary hearing on the Sorrell claim, the District Court ordered that petitioner be granted a writ of habeas corpus. The court characterized the claim as an allegation that petitioner "was denied due process of law under the Fourteenth Amendment of the United States Constitution because the Commonwealth failed to provide fair notice that evidence concerning the Sorrell murders would be introduced at his penalty phase." App. 348. Citing Gardner v. Florida, 430 U.S. 349, 357-359(1977), the court determined that there was a constitutional defect in petitioner's penalty phase hearing: "Petitioner was confronted and surprised by the testimony of officer Slezak and Dr. Presswalla." App. 349. This defect "violated [petitioner's] right to fair notice and rendered the hearing clearly unreliable," because petitioner's attorneys had less than one day's notice of the additional evidence to be used against their client. Id., at 349-350.

The Commonwealth appealed, arguing to the Fourth Circuit that to grant petitioner habeas relief would give him the benefit of a new rule of federal constitutional law, in violation of Teague v. Lane, 489 U.S. 288 (1989). The Fourth Circuit reversed the judgment granting the writ, rejected petitioner's cross appeals from the dismissal of several other claims, and remanded with directions that the habeas corpus petition be dismissed. Gray v. Thompson, 58 F. 3d 59, 67 (1995). The court distinguished Gardner, on which the District Court had relied, because petitioner, unlike Gardner, "was not sentenced on the basis of any secret information." 58 F. 3d, at 64. The court thus concluded that petitioner's notice of evidence claim "was not compelled by existing precedent at the time his conviction became final," and thus could not be considered in federal habeas proceedings under Teague. 58 F. 3d, at 64.

The Commonwealth scheduled petitioner's execution for December 14, 1995. Petitioner applied for a stay of execution and petitioned for a writ of certiorari from this Court. We granted his stay application on December 13, 1995. 516 U. S. ___ (1995). On January 5, 1996, we granted certiorari, limited to the questions whether petitioner's notice of evidence claim stated a new rule and whether the Commonwealth violated petitioner's due process rights under Brady by withholding evidence exculpating him from responsibility for the Sorrell murders. 516 U. S. ___ (1995); see Pet. for Cert. i.

We first address petitioner's Brady claim. The District Court determined that "[t]his claim was not presented to the Supreme Court of Virginia on direct appeal nor in state habeas corpus proceedings," and that "the factual basis of this claim was available to [petitioner] at the time he litigated his state habeas corpus petition," and dismissed the claim on this basis. 1 J. A. 194. Petitioner does not contest these determinations in this Court.

Petitioner's failure to raise his Brady claim in state court implicates the requirements in habeas of exhaustion and procedural default. 28 U.S.C. § 2254(b) bars the granting of habeas corpus relief "unless it appears that the applicant has exhausted the remedies available in the courts of the State." Because "[t]his requirement . . . refers only to remedies still available at the time of the federal petition," Engle v. Isaac, 456 U.S. 107, 126, n. 28 (1982), it is satisfied "if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law," Castille v. Peoples, 489 U.S. 346, 351 (1989). However, the procedural bar which gives rise to exhaustion provides an independent and adequate state law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default. Teague v. Lane, supra, at 298; Isaac, supra, at 126, n. 28, 129; Wainright v. Sykes, 433 U.S. 72, 90-91 (1977).

In Virginia, "[n]o writ [of habeas corpus ad subjiciendum] shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition." Va. Code Ann. §8.01" 654(B)(2) (1992). Because petitioner knew of the grounds of his Brady claim when he filed his first petition, §8.01-654(B)(2) precludes review of petitioner's claim in any future state habeas proceeding. Because petitioner makes no attempt to demonstrate cause or prejudice for his default in state habeas proceedings, his claim is not cognizable in a federal suit for the writ.

Petitioner makes a separate due process challenge to the manner in which the prosecution introduced evidence about the Sorrell murders. We perceive two separate claims in this challenge. As we will explain in greater detail below, petitioner raises a "notice of evidence" claim, which alleges that the Commonwealth deprived petitioner of due process by failing to give him adequate notice of the evidence the Commonwealth would introduce in the sentencing phase of his trial. He raises a separate "misrepresentation" claim, which alleges that the Commonwealth violated due process by misleading petitioner about the evidence it intended to use at sentencing.

In Picard v. Connor, 404 U.S. 270 (1971), we held that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief. We considered whether a habeas petitioner was entitled to relief on the basis of a claim, which was not raised in the state courts or in his federal habeas petition, that the indictment procedure by which he was brought to trial violated equal protection. Id., at 271. In announcing that "the substance of a federal habeas corpus claim must first be presented to the state courts," id., at 278, we rejected the contention that the petitioner satisfied the exhaustion requirement of 28 U.S.C. § 2254(b) by presenting the state courts only with the facts necessary to state a claim for relief. "The [state court] dealt with the arguments [the habeas petitioner] offered; we cannot fault that court for failing also to consider sua sponte whether the indictment procedure denied [the petitioner] equal protection of the laws." Id., at 277.

We have also indicated that it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the "substance" of such a claim to a state court. In Anderson v. Harless, 459 U.S. 4 (1982), the habeas petitioner was granted relief on the ground that it violated due process for a jury instruction to obviate the requirement that the prosecutor prove all the elements of the crime beyond a reasonable doubt. Id., at 7 (citing Sandstrom v. Montana, 442 U.S. 510 (1979)). The only manner in which the habeas petitioner had cited federal authority was by referring to a state court decision in which "the defendant . . . asserted a broad federal due process right to jury instructions that properly explain state law." 459 U. S., at 7 (internal quotation marks omitted). Our review of the record satisfied us that the Sandstrom claim "was never presented to, or considered by, the [state] courts," but we found it especially significant that the "broad federal due process right" that the habeas petition might have been read to incorporate did not include "the more particular analysis developed in cases such as Sandstrom." Ibid.

The due process challenge in petitioner's brief relies on two "particular analys[es]" of due process. Ibid. Relying on cases like Gardner v. Florida, 430 U.S. 349 (1977), and Skipper v. South Carolina, 476 U.S. 1 (1986), petitioner argues that he should have been given " `such notice of the issues involved in the [sentencing] hearing as [would have] reasonably enable[d] him to prepare his case,' " Brief for Petitioner 32 (quoting Schwartz, Administrative Law 283 (2d ed. 1984)), that he was denied "a fair opportunity to be heard on determinative sentencing issues," Brief for Petitioner 33. This right stems from the defendant's "legitimate interest in the character of the procedure which leads to the imposition of sentence" of death, Gardner, supra, at 358, which justifies giving him an "opportunity to deny" potentially determinative sentencing information, id., at 362.

"Yet another way in which the state may unconstitutionally . . . deprive [a defendant] of a meaningful opportunity to address the issues, is simply by misinforming him." Brief for Petitioner 34. Petitioner cites In re Ruffalo, 390 U.S. 544 (1968), Raley v. Ohio, 360 U.S. 423 (1959), and Mooney v. Holohan, 294 U.S. 103 (1935), for this proposition. Ruffalo was a disbarment proceeding in which this Court held that the disbarred attorney had not been given notice of the charges against him by the Ohio committee which administered bar discipline. 390 U. S., at 550. In Raley, the chairman and members of a state investigating commission assured witnesses that the privilege against self incrimination was available to them, but when the witnesses were convicted for contempt the Supreme Court of Ohio held that a state immunity statute rendered the Fifth Amendment privilege unavailable. 360 U. S., at 430-434. And in Mooney v. Holohan, the defendant alleged that the prosecution knowingly used perjured testimony at his trial. 294 U. S., at 110.

Gardner, Ruffalo, Raley, and Mooney arise in widely differing contexts. Gardner forbids the use of secret testimony in the penalty proceeding of a capital case which the defendant has had no opportunity to consider or rebut. Ruffalo deals with a defendant's right to notice of the charges against him. Whether or not Ruffalo might have supported petitioner's notice of evidence claim, see infra, at 16, it does not support the misrepresentation claim for which petitioner cites it. Mooney forbade the prosecution from engaging in "a deliberate deception of court and jury." 294 U. S., at 112. Raley, though involving no deliberate deception, held that defendants who detrimentally relied on the assurance of a committee chairman could not be punished for having done so. Mooney, of course, would lend support to petitioner's claim if it could be shown that the prosecutor deliberately misled him, not just that he changed his mind over the course of the trial. The two claims are separate.

The Commonwealth argues that the misrepresentation claim "was never argued before in any court." Brief for Respondent 39. If petitioner never presented this claim on direct appeal or in state habeas proceedings, federal habeas review of the claim would be barred unless petitioner could demonstrate cause and prejudice for his failure to raise the claim in state proceedings. Supra, at 8. If the claim was not raised or addressed in federal proceedings, below, our usual practice would be to decline to review it. Yee v. Escondido, 503 U.S. 519, 533 (1992).

There is some ambiguity as to whether the misrepresentation claim was raised or addressed in the District Court or the Court of Appeals. On the one hand, the District Court ordered relief primarily on the basis of Gardner, i.e., lack of notice. Supra, at 6-7. On the other hand, some of the District Court findings advert to a deliberate decision by the prosecutor to mislead petitioner's counsel for tactical advantage. See, e.g., App. 348, 350. The ambiguity in the federal record complicates the state court procedural default issue, because procedural default is an affirmative defense for the Commonwealth. If the misrepresentation claim was addressed at some stage of federal proceedings, the Commonwealth would have been obligated to raise procedural default as a defense, or lose the right to assert the defense thereafter. See Jenkins v. Anderson, 447 U.S. 231, 234, n. 1 (1980); see also Schiro v. Farley, 510 U.S. 222, 227-228 (1994).

We remand for the Court of Appeals to determine whether petitioner in fact raised what in his briefs on the merits to this Court he asserts has been his "fundamental complaint throughout this litigation . . . : the Commonwealth's affirmative misrepresentation regarding its presentation of the Sorrell murders . . . deprived Petitioner of a fair sentencing proceeding." Reply Brief for Petitioner 4-5. If the misrepresentation claim was raised, the Court of Appeals should consider whether the Commonwealth has preserved any defenses to it and proceed to consider the claim and preserved defenses as appropriate.

We turn to the notice of evidence claim, and consider whether the Court of Appeals correctly concluded that this claim sought the retroactive application of a new rule of federal constitutional law. We have concluded that the writ's purpose may be fulfilled with the least intrusion necessary on States' interest of the finality of criminal proceedings by applying constitutional standards contemporaneous with the habeas petitioner's conviction to review his petition. See Teague, 489 U. S., at 309" 310 (opinion of O'Connor, J.). Thus, habeas relief is appropriate only if "a state court considering [the petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Saffle v. Parks, 494 U.S. 484, 488 (1990).

At the latest, petitioner knew at the start of trial that the prosecutor intended to introduce evidence tending to show that he committed the Sorrell murders. He knew then that the Commonwealth would call Tucker to the stand to repeat his statement that petitioner had admitted to committing the murders. [n.3] See App. 340; 14 Record 8-9. He nonetheless contends that he was deprived of adequate notice of the other witnesses, the police officer and the medical examiner who had investigated the Sorrell murders, whom he was advised that the prosecutor would call only on the evening before the sentencing hearing. App. 342; 18 Record 777. But petitioner did not attempt to cure this inadequacy of notice by requesting more time to respond to this evidence. He instead moved "to have excluded from evidence during this penalty trial any evidence pertaining to any other--any felony for which the defendant has not yet been charged." [n.4] Id., at 776.

On these facts, for petitioner to prevail on his notice of evidence claim, he must establish that due process requires that he receive more than a day's notice of the Commonwealth's evidence. He must also establish that due process required a continuance whether or not he sought one, or that, if he chose not to seek a continuance, exclusion was the only appropriate remedy for the inadequate notice. We conclude that only the adoption of a new constitutional rule could establish these propositions.

A defendant's right to notice of the charges against which he must defend is well established. In re Ruffalo, 390 U.S. 544 (1968); Cole v. Arkansas, 333 U.S. 196 (1948). But a defendant's claim that he has a right to notice of the evidence which the state plans to use to prove the charges stands on quite a different footing. We have said that "the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded." Wardius v. Oregon, 412 U.S. 470, 474, (1973). In Weatherford v. Bursey, 429 U.S. 545 (1977), we considered the Due Process claim of a defendant who had been convicted with the aid of surprise testimony of an accomplice who was an undercover agent. Although the prosecutor had not intended to introduce the agent's testimony, he changed his mind the day of trial. Id., at 549. To keep his cover, the agent had told the defendant and his counsel that he would not testify against the defendant. Id., at 560. We rejected the defendant's claim, explaining that "[t]here is no general constitutional right to discovery in a criminal case, and Brady," which addressed only exculpatory evidence, "did not create one," id., at 559. To put it mildly, these cases do not compel a court to order the prosecutor to disclose his evidence; their import, in fact, is strongly against the validity of petitioner's claim.

Petitioner relies principally on Gardner v. Florida, 430 U.S. 349 (1977), for the proposition that a defendant may not be sentenced to death "on the basis of information which he had no opportunity to deny or explain." Id., at 362 (opinion of Stevens, J.). In Gardner, the trial court sentenced the defendant to death relying in part on evidence assembled in a presentence investigation by the state parole commission; the "investigation report contained a confidential portion which was not disclosed to defense counsel." Id., at 353. Gardner literally had no opportunity to even see the confidential information, let alone contest it. Petitioner in the present case, on the other hand, had the opportunity to hear the testimony of Officer Slezak and Dr. Presswallain open court, and to cross examine them. His claim to notice is much more akin to the one rejected in Weatherford, supra, than to the one upheld in Gardner.

Even were our cases otherwise on the notice issue, we have acknowledged that exclusion of evidence is not the sole remedy for a violation of a conceded right to notice of an alibi witness. In Taylor v. Illinois, 484 U.S. 400 (1988), we said that in this situation "a less drastic sanction is always available. Prejudice . . . could be minimized by granting a continuance." Id., at 413. Here, counsel did not request a continuance; he argued only for exclusion. Counsel argued that the evidence should be excluded not only because he was not prepared to contest the evidence, but also because it exceeded the standard in Virginia, Watkins v. Commonwealth, 229 Va. 469, 331 S. E. 2d 422 (1985), for relevance of unsolved crime evidence to sentencing. See 18 Record 723. In view of petitioner's insistence on exclusion of the evidence, the trial court might well have felt that it would have been interfering with a tactical decision of counsel to order a continuance on its own motion.

The dissent argues that petitioner seeks the benefit of a well established rule, that "a capital defendant must be afforded a meaningful opportunity to explain or deny the evidence introduced against him at sentencing." Post, at 11. Because we disagree with the dissent's assertion that petitioner moved for a continuance, we disagree with its characterization of the constitutional rule underlying his claim for relief. Compare supra, at 14, and n. 4, with post, 15, n. 11. The dissent glosses over the similarities between this case and Weatherford, which " `dictate[s],' " post, at 10, the disposition of petitioner's claim--adversely to petitioner--more clearly than any precedent cited by the dissent. But even without Weatherford and petitioner's failure to move for a continuance, we would still think the new rule doctrine "would be meaningless if applied at this level of generality." Sawyer v. Smith, 497 U.S. 227, 236 (1990). We therefore hold that petitioner's notice of evidence claim would require the adoption of a new constitutional rule.

Petitioner argues that relief should be granted nonetheless, because the new rule he proposes falls within one of Teague's two exceptions. "The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe." Parks, 494 U. S., at 494 (citing Teague, 489 U. S., at 311). This exception is not at issue here. "The second exception is for `watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Parks, supra, at 495 (citing Teague, supra, at 311; Butler v. McKellar, 494 U.S. 407, 416 (1990)). Petitioner argues that his notice of evidence new rule is "mandated by long recognized principles of fundamental fairness critical to accuracy in capital sentencing determinations." Brief for Petitioner 47.

We observed in Saffle v. Parks that the paradigmatic example of a watershed rule of criminal procedure is the requirement that counsel be provided in all criminal trials for serious offenses. 494 U. S., at 495 (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). "Whatever one may think of the importance of [petitioner's] proposed rule, it has none of the primacy and centrality of the rule adopted in Gideon or other rules which may be thought to be within the exception." Parks, supra, at 495. The rule in Teague therefore applies, and petitioner may not obtain habeas relief on his notice of evidence claim.

We hold that petitioner's Brady claim is procedurally defaulted and that his notice of evidence claim seeks retroactive application of a new rule. Neither claim states a ground upon which relief may be granted in federal habeas corpus proceedings. However, we vacate the judgment of the Court of Appeals, and remand the case for consideration of petitioner's misrepresentation claim in proceedings consistent with this opinion.

It is so ordered.


1 The prosecutor introduced this testimony as evidence of petitioner's future dangerousness. The prosecutor also introduced into evidence petitioner's criminal record, which included 13 felony convictions, at least 9 of which were for crimes of violence, including armed robbery and malicious wounding. Petitioner's record revealed that he had locked a restaurant's employees in a food freezer while robbing the restaurant, and threatened the lives of two persons other than McClelland. Gray v. Commonwealth, 233 Va. 313, 353, 356 S. E. 2d 157, 179, cert. denied, 484 U.S. 873 (1987).

2 The other five subclaims are not relevant to our review.

3 When petitioner did object later, at the start of the penalty phase, to the admission of all the Sorrell murder evidence, counsel conceded that he would have been prepared to refute such evidence if it had consisted only of testimony by Tucker or petitioner's fellow inmates that petitioner had admitted to killing the Sorrells. See 18 Record 722, 780.

4 The District Court described petitioners' counsel as having made a "plea for additional time to prepare." App. 343. The Court of Appeals found this plea insufficient to have legal effect in court: "If the defense felt unprepared to undertake effective cross examination, one would think a formal motion for continuance would have been forthcoming, but none was ever made; counsel moved only that the evidence be excluded." Gray v. Thompson, 58 F. 3d 59, 64 (CA4 1995). We agree with the Court of Appeals.