NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.




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

No. 95-6510. Argued April 15, 1996 -- Decided June 20, 1996

At the start of petitioner's Virginia trial for the capital murder of Richard McClelland, the prosecution acknowledged that, should the trial reach the penalty phase, it would introduce petitioner's admissions to other inmates that he had previously murdered Lisa Sorrell and her daughter. The day that petitioner was convicted of the McClelland murder, the prosecution disclosed that it would introduce additional evidence at sentencing linking petitioner to the Sorrell murders, including crime scene photographs and testimony from the Sorrell investigating detective and medical examiner. Counsel moved to exclude evidence pertaining to any felony for which petitioner had not been charged. Although counsel also complained that he was not prepared for the additional evidence, and that the defense was taken by surprise, he did not request a continuance. The court denied the motions to exclude, and, after a hearing, petitioner was sentenced to death. After exhausting his state remedies, he sought federal habeas relief, claiming, as relevant here, that inadequate notice prevented him from defending against the evidence introduced at the penalty phase, and that the Commonwealth failed to disclose exculpatory evidence regarding the Sorrell murders. The District Court initially denied relief, finding that petitioner had no constitutional right to notice of individual testimony that the Commonwealth planned to introduce at sentencing, and that the claim made under Brady v. Maryland, 373 U.S. 83, was procedurally barred under Virginia law. However, the court later amended its judgment, concluding that petitioner was denied due process when the Commonwealth failed to provide fair notice of what Sorrell murder evidence would be introduced. In reversing, the Fourth Circuit found that granting habeas relief would give petitioner the benefit of a new rule of federal constitutional law, in violation of Teague v. Lane, 489 U.S. 288. The grant of certiorari is limited to petitioner's notice of evidence and Brady claims.


1. Petitioner's Brady claim is procedurally defaulted. He never raised that claim in state court, and, because he knew of its grounds when he filed his first state petition, Virginia law precludes review of the defaulted claim in any future state habeas proceeding. This provides an independent and adequate state law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim, unless petitioner can demonstrate cause and prejudice for the default. Teague v. Lane, supra, at 298. Because he has made no such demonstration, his claim is not cognizable in a federal suit for the writ. Pp. 8-9.

2. The misrepresentation claim raised by petitioner in his brief here is remanded for the Court of Appeals to determine whether he in fact raised that issue below. Pp. 9-13.

(a) In his brief, petitioner relies on two separate due process challenges to the manner in which the prosecution introduced evidence about the Sorrell murders: a notice of evidence claim alleging that the Commonwealth failed to give adequate notice of the evidence it would use, and a misrepresentation claim alleging that the Commonwealth mislead him about the evidence it intended to present. For purposes of exhausting state remedies, a habeas claim must include reference to a specific federal constitutional guarantee, as well as a statement of the facts entitling a petitioner to relief. Picard v. Connor, 404 U.S. 270. A petitioner does not satisfy the exhaustion requirement by presenting the state courts only with the facts necessary to state a claim for relief. Nor is it 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. Anderson v. Harless, 459 U.S. 4. Gardner v. Florida, 430 U.S. 349--on which petitioner relies for his notice of evidence claim--and In re Ruffalo, 390 U.S. 544, Raley v. Ohio, 360 U.S. 423, and Mooney v. Holohan, 294 U.S. 103--on which he relies for his misrepresentation claim--arise in widely differing contexts. The two claims are separate. Pp. 9-12.

(b) If petitioner never raised the misrepresentation issue in state proceedings, federal habeas review would be barred unless he could demonstrate cause and prejudice for his failure to raise the claim in state proceedings. However, if it was addressed in the federal proceedings, the Commonwealth would have been obligated to raise procedural default as a defense or lose the right to assert the defense thereafter. If the Court of Appeals determines that the issue was raised, it should consider whether the Commonwealth has preserved any defenses and proceed to consider the claim and preserved defenses as appropriate. Pp. 12-13.

3. Petitioner's notice of evidence claim would require the adoption of a new constitutional rule. Pp. 13-17.

(a) Petitioner contends that he was deprived of adequate notice when he received only one day's notice of the additional evidence, but, rather than seeking a continuance, he sought to have all such evidence excluded. For him to prevail, he must establish that due process requires that he receive more than a day's notice of the Commonwealth's evidence. He must also show 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. Only the adoption of a new constitutional rule could establish these propositions. A defendant has the right to notice of the charges against which he must defend. In re Ruffalo, supra. However, he does not have a constitutional right to notice of the evidence which the state plans to use to prove the charges, and Brady, which addressed only exculpatory evidence, did not create one. Weatherford v. Bursey, 429 U.S. 545, 559. Gardner v. Florida, supra, distinguished. Even if notice were required, exclusion of evidence is not the sole remedy for a violation of such a right, since a continuance could minimize prejudice. Taylor v. Illinois, 484 U.S. 400, 413. Petitioner made no such request here, and in view of his insistence on exclusion, the trial court might well have felt that it would have been interfering with counsel's tactical decision to order a continuance on its own motion. Pp. 15-17.

(b) The new rule petitioner proposes does not fall within Teague's second exception, which is for watershed rules of criminal procedure implicating a criminal proceeding's fundamental fairness and accuracy. 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 v. Wainwright, 372 U.S. 335, or other rules which may be thought to be within the exception. Saffle v. Parks, 494 U.S. 484, 495. P. 17.

58 F. 3d 59, vacated and remanded.

Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined.