Subject: McCLESKEY v. ZANT, Syllabus



 
    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.
SUPREME COURT OF THE UNITED STATES


Syllabus



McCLESKEY v. ZANT, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION
CENTER

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


No. 89-7024.  Argued October 31, 1990 -- Decided April 16, 1991

To rebut petitioner McCleskey's alibi defense at his 1978 Georgia trial for
murder and a related crime, the State called Offie Evans, the occupant of
the jail cell next to McCleskey's, who testified that McCleskey had
admitted and boasted about the killing.  On the basis of this and other
evidence supporting McCleskey's guilt, the jury convicted him and sentenced
him to death.  After the State Supreme Court affirmed, he filed an
unsuccessful petition for state habeas corpus relief, alleging, inter alia,
that his statements to Evans were elicited in a situation created by the
State to induce him to make incriminating statements without the assistance
of counsel in violation of Massiah v. United States, 377 U. S. 201.  He
then filed his first federal habeas petition, which did not raise a Massiah
claim, and a second state petition, both of which were ultimately
unsuccessful.  Finally, he filed his second federal habeas petition in
1987, basing a Massiah challenge on a 21-page statement that Evans had made
to police two weeks before the trial.  The document, which the State
furnished at McCleskey's request shortly before he filed his second federal
petition, related conversations that were consistent with Evans' trial
testimony, but also recounted the tactics used by Evans to engage McCleskey
in conversation.  Moreover, at a hearing on the petition, Ulysses Worthy, a
jailer during McCleskey's pretrial incarceration whose identity came to
light after the petition was filed, gave testimony indicating that Evans'
cell assignment had been made at the State's behest.  In light of the Evans
statement and Worthy's testimony, the District Court found an ab initio
relationship between Evans and the State and granted McCleskey relief under
Massiah.  The Court of Appeals reversed on the basis of the doctrine of
abuse of the writ, which defines the circumstances in which federal courts
decline to entertain a claim presented for the first time in a second or
subsequent habeas corpus petition.

Held: McCleskey's failure to raise his Massiah claim in his first federal
habeas petition constituted abuse of the writ.  Pp. 8-34.

    (a) Much confusion exists as to the proper standard for applying the
abuse of the writ doctrine, which refers to a complex and evolving body of
equitable principles informed and controlled by historical usage, statutory
developments, and judicial decisions.  This Court has heretofore defined
such abuse in an oblique way, through dicta and denials of certiorari
petitions or stay applications, see Witt v. Wainwright, 470 U. S. 1039,
1043 (Marshall, J., dissenting), and, because of historical changes and the
complexity of the subject, has not always followed an unwavering line in
its conclusions as to the writ's availability, Fay v. Noia, 372 U. S. 391,
411-412.  Pp. 8-20.

    (b) Although this Court's federal habeas decisions do not all admit of
ready synthesis, a review of these precedents demonstrates that a claim
need not have been deliberately abandoned in an earlier petition in order
to establish that its inclusion in a subsequent petition constitutes abuse
of the writ, see, e. g., Sanders v. United States, 373 U. S. 1, 18; that
such inclusion constitutes abuse if the claim could have been raised in the
first petition, but was omitted through inexcusable neglect, see, e. g.,
Delo v. Stokes, 495 U. S. ---, ---; and that, because the doctrines of
precedural default and abuse of the writ implicate nearly indentical
concerns, the determination of inexcusable neglect in the abuse context
should be governed by the same standard used to determine whether to excuse
a habeas petitioner's state procedural defaults, see, e. g., Wainwright v.
Sykes, 433 U. S. 72.  Thus, when a prisoner files a second or subsequent
habeas petition, the government bears the burden of pleading abuse of the
writ.  This burden is satisfied if the government, with clarity and
particularity, notes petitioner's prior writ history, identifies the claims
that appear for the first time, and alleges that petitioner has abused the
writ.  The burden to disprove abuse then shifts to petitioner.  To excuse
his failure to raise the claim earlier, he must show cause -- e. g., that
he was impeded by some objective factor external to the defense, such as
governmental interference or the reasonable unavailability of the factual
basis for the claim -- as well as actual prejudice resulting from the
errors of which he complains.  He will not be entitled to an evidentiary
hearing if the district court determines as a matter of law that he cannot
satisfy the cause and prejudice standard.  However, if he cannot show
cause, the failure to earlier raise the claim may nonetheless be excused if
he can show that a fundamental miscarriage of justice -- the conviction of
an innocent person -- would result from a failure to entertain the claim.
Pp. 20-28.

    (c) McCleskey has not satisfied the foregoing standard for excusing the
omission of his Massiah claim from his first federal habeas petition.  He
lacks cause for that omission, and, therefore, the question whether he
would be prejudiced by his inability to raise the claim need not be
considered.  See Murray v. Carrier, 477 U. S. 478, 494.  That he may not
have known about, or been able to discover, the Evans document before
filing his first federal petition does not establish cause, since knowlege
gleaned from the trial about the jail-cell conversations and Evans'
conduct, as well as McCleskey's admitted participation in those
conversations, put him on notice that he should pursue the Massiah claim in
the first federal petition as he had done in his first state petition.  Nor
does the unavailability of Worthy's identity and testimony at the time of
the first federal petition establish cause, since the fact that Evans'
statement was the only new evidence McCleskey had when he filed the Massiah
claim in his second federal petition demonstrates the irrelevance of Worthy
to that claim.  Moreover, cause cannot be established by the State's
allegedly wrongful concealment of the Evans document until 1987, since the
District Court found no wrongdoing in the failure to hand over the document
earlier, and since any initial concealment would not have prevented
McCleskey from raising a Massiah claim in the first federal petition.
Amadeo v. Zant, 486 U. S. 214, 224, distinguished.  Furthermore, the narrow
miscarriage of justice exception to the cause requirement is of no avail to
McCleskey, since he cannot demonstrate that the alleged Massiah violation
caused the conviction of an innocent person.  The record demonstrates that
that violation, if it be one, resulted in the admission at trial of
truthful inculpatory evidence which did not affect the reliability of the
guilt determination.  In fact, the Evans statement that McCleskey now
embraces confirms his guilt.  Pp. 28-34.

890 F. 2d 342, affirmed.

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

------------------------------------------------------------------------------




Subject: 89-7024 -- OPINION, McCLESKEY v. ZANT

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-7024



WARREN McCLESKEY, PETITIONER v. WALTER D. ZANT, SUPERINTENDENT, GEORGIA
DIAGNOSTIC & CLASSIFICATION CENTER

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

[April 16, 1991]



    Justice Kennedy delivered the opinion of the Court.

    The doctrine of abuse of the writ defines the circumstances in which
federal courts decline to entertain a claim presented for the first time in
a second or subsequent petition for a writ of habeas corpus.  Petitioner
Warren McCleskey in a second federal habeas petition presented a claim
under Massiah v. United States, 377 U. S. 201 (1964), that he failed to
include in his first federal petition.  The Court of Appeals for the
Eleventh Circuit held that assertion of the Massiah claim in this manner
abused the writ.  Though our analysis differs from that of the Court of
Appeals, we agree that the petitioner here abused the writ, and we affirm
the judgment.

I
    McCleskey and three other men, all armed, robbed a Georgia furniture
store in 1978.  One of the robbers shot and killed an off duty policeman
who entered the store in the midst of the crime.  McCleskey confessed to
the police that he participated in the robbery.  When on trial for both the
robbery and the murder, however, McCleskey renounced his confession after
taking the stand with an alibi denying all involvement.  To rebut
McCleskey's testimony, the prose cution called Offie Evans, who had
occupied a jail cell next to McCleskey's.  Evans testified that McCleskey
admitted shooting the officer during the robbery and boasted that he would
have shot his way out of the store even in the face of a dozen policemen.
    Although no one witnessed the shooting, further direct and
circumstantial evidence supported McCleskey's guilt of the murder.  An
eyewitness testified that someone ran from the store carrying a
pearl-handled pistol soon after the robbery.  Other witnesses testified
that McCleskey earlier had stolen a pearl-handled pistol of the same
caliber as the bullet that killed the officer.  Ben Wright, one of
McCleskey's accomplices, confirmed that during the crime McCleskey carried
a white-handled handgun matching the caliber of the fatal bullet.  Wright
also testified that McCleskey admitted shooting the officer.  Finally, the
prosecutor introduced McCleskey's confession of participation in the
robbery.
    In December 1978, the jury convicted McCleskey of murder and sentenced
him to death.  Since his conviction, Mc Cleskey has pursued direct and
collateral remedies for more than a decade.  We describe this procedural
history in detail, both for a proper understanding of the case and as an
illustration of the context in which allegations of abuse of the writ
arise.
    On direct appeal to the Supreme Court of Georgia, McCles key raised six
grounds of error.  A summary of McCleskey's claims on direct appeal, as
well as those he asserted in each of his four collateral proceedings, is
set forth in the Appendix to this opinion, infra.  The portion of the
appeal relevant for our purposes involves McCleskey's attack on Evans'
rebuttal testimony.  McCleskey contended that the trial court "erred in
allowing evidence of [McCleskey's] oral statement admitting the murder made
to [Evans] in the next cell, because the prosecutor had deliberately
withheld such statement" in vio lation of Brady v. Maryland, 373 U. S. 83
(1963).  McClesky v. State, 245 Ga. 108, 112, 263 S. E. 2d 146, 149 (1980).
A unanimous Georgia Supreme Court acknowledged that the prosecutor did not
furnish Evans' statement to the defense, but ruled that because the
undisclosed evidence was not exculpatory, McCleskey suffered no material
prejudice and was not denied a fair trial under Brady.  245 Ga., at
112-113, 263 S. E. 2d, at 149.  The court noted, moreover, that the
evidence McCleskey wanted to inspect was "introduced to the jury in its
entirety" through Evans' testimony, and that Mc Cleskey's argument that
"the evidence was needed in order to prepare a proper defense or impeach
other witnesses ha[d] no merit because the evidence requested was
statements made by [McCleskey] himself."  Ibid.  The court rejected
McCleskey's other contentions, and affirmed his conviction and sentence.
Ibid.  We denied certiorari.  McClesky v. Georgia, 449 U. S. 891 (1980).
    McCleskey then initiated postconviction proceedings.  In January 1981,
he filed a petition for state habeas corpus relief.  The amended petition
raised 23 challenges to his murder conviction and death sentence.  See
Appendix, infra.  Three of the claims concerned Evans' testimony.  First,
Mc Cleskey contended that the State violated his due process rights under
Giglio v. United States, 405 U. S. 150 (1972), by its failure to disclose
an agreement to drop pending escape charges against Evans in return for his
cooperation and testimony.  App. 20.  Second, McCleskey reasserted his
Brady claim that the State violated his due process rights by the
deliberate withholding of the statement he made to Evans while in jail.
Id., at 21.  Third, McCleskey alleged that admission of Evans' testimony
violated the Sixth Amendment right to counsel as construed in Massiah v.
United States, supra.  On this theory, "[t]he introduction into evidence of
[his] statements to [Evans], elicited in a situation created to induce
[McCleskey] to make incriminating statements without the assistance of
counsel, violated [McCleskey's] right to counsel under the Sixth Amendment
to the Constitution of the United States."  App. 22.
    At the state habeas corpus hearing, Evans testified that one of the
detectives investigating the murder agreed to speak a word on his behalf to
the federal authorities about certain federal charges pending against him.
The state habeas court ruled that the ex parte recommendation did not
implicate Giglio, and it denied relief on all other claims.  The Supreme
Court of Georgia denied McCleskey's application for a certificate of
probable cause, and we denied his second petition for a writ of certiorari.
McCleskey v. Zant, 454 U. S. 1093 (1981).
    In December 1981, McCleskey filed his first federal habeas corpus
petition in the United States District Court for the Northern District of
Georgia, asserting 18 grounds for relief.  See Appendix, infra.  The
petition failed to allege the Mas siah claim, but it did reassert the
Giglio and Brady claims.  Following extensive hearings in August and
October 1983, the District Court held that the detective's statement to
Evans was a promise of favorable treatment, and that failure to disclose
the promise violated Giglio.  McCleskey v. Zant, 580 F. Supp. 338, 380-384
(ND Ga. 1984).  The District Court further held that Evans' trial testimony
may have affected the jury's verdict on the charge of malice murder.  On
these premises it granted relief.  Id., at 384.
    The Court of Appeals reversed the District Court's grant of the writ.
McCleskey v. Kemp, 753 F. 2d 877 (CA11 1985).  The court held that the
State had not made a promise to Evans of the kind contemplated by Giglio,
and that in any event the Giglio error would be harmless.  753 F. 2d, at
884-885.  The court affirmed the District Court on all other grounds.  We
granted certiorari limited to the question whether Georgia's capital
sentencing procedures were constitutional, and denied relief.  481 U. S.
279 (1987).
    McCleskey continued his postconviction attacks by filing a second state
habeas corpus action in 1987 which, as amended, contained five claims for
relief.  See Appendix, infra.  One of the claims again centered on Evans'
testimony, alleging the State had an agreement with Evans that it had
failed to disclose.  The state trial court held a hearing and dismissed the
petition.  The Supreme Court of Georgia denied McCles key's application for
a certificate of probable cause.
    In July 1987, McCleskey filed a second federal habeas action, the one
we now review.  In the District Court, McCles key asserted seven claims,
including a Massiah challenge to the introduction of Evans' testimony.  See
Appendix, infra.  McCleskey had presented a Massiah claim, it will be
recalled, in his first state habeas action when he alleged that the
conversation recounted by Evans at trial had been "elicited in a situation
created to induce" him to make an incriminating statement without the
assistance of counsel.  The first federal petition did not present a
Massiah claim.  The proffered basis for the Massiah claim in the second
federal petition was a 21-page signed statement that Evans made to the
Atlanta Police Department on August 1, 1978, two weeks before the trial
began.  The department furnished the document to McCleskey one month before
he filed his second federal petition.
    The statement related pretrial jailhouse conversations that Evans had
with McCleskey and that Evans overheard between McCleskey and Bernard
Dupree.  By the statement's own terms, McCleskey participated in all the
reported jailcell conversations.  Consistent with Evans' testimony at
trial, the statement reports McCleskey admitting and boasting about the
murder. It also recounts that Evans posed as Ben Wright's uncle and told
McCleskey he had talked with Wright about the robbery and the murder.
    In his second federal habeas petition, McCleskey asserted that the
statement proved Evans "was acting in direct concert with State officials"
during the incriminating conversations with McCleskey, and that the
authorities "deliberately elicited" incuplatory admissions in violation of
McCleskey's Sixth Amendment right to counsel.  Massiah v. United States,
377 U. S., at 206.  1 Tr. Exh. 1, pp. 11-12.  Among other responses, the
State of Georgia contended that Mc Cleskey's presentation of a Massiah
claim for the first time in the second federal petition was an abuse of the
writ.  28 U. S. C. MDRV 2244(b); Rule 9(b) of the Rules Governing MDRV 2254
Cases.
    The District Court held extensive hearings in July and August 1987
focusing on the arrangement the jailers had made for Evans' cell assignment
in 1978.  Several witnesses denied that Evans had been placed next to
McCleskey by design or instructed to overhear conversations or obtain
statements from McCleskey.  McCleskey's key witness was Ulysses Worthy, a
jailer at the Fulton County Jail during the summer of 1978.  McCleskey's
lawyers contacted Worthy after a detective testified that the 1978 Evans
statement was taken in Worthy's office.  The District Court characterized
Worthy's testimony as "often confused and self-contradictory."  McCleskey
v. Kemp, No. C87-1517A (ND Ga. Dec. 23, 1987), App. 81.  Worthy testified
that someone at some time requested permission to move Evans near
McCleskey's cell.  He contradicted himself, however, concerning when, why,
and by whom Evans was moved, and about whether he overheard investigators
urging Evans to engage McCleskey in conversation.  Id., at 76-81.
    On December 23, 1987, the District Court granted McCles key relief
based upon a violation of Massiah.  Id., at 63-97.  The court stated that
the Evans statement "contains strong indication of an ab initio
relationship between Evans and the authorities."  Id., at 84.  In addition,
the court credited Worthy's testimony suggesting that the police had used
Evans to obtain incriminating information from McCleskey.  Based on the
Evans statement and portions of Worthy's testimony, the District Court
found that the jail authorities had placed Evans in the cell adjoining
McCleskey's "for the purpose of gathering incriminating information"; that
"Evans was probably coached in how to approach McCleskey and given critical
facts unknown to the general public"; that Evans talked with McCleskey and
eavesdropped on McCles key's conversations with others; and that Evans
reported what he had heard to the authorities.  Id., at 83.  These
findings, in the District Court's view, established a Massiah violation.
    In granting habeas relief, the District Court rejected the State's
argument that McCleskey's assertion of the Massiah claim for the first time
in the second federal petition constituted an abuse of the writ.  The court
ruled that McCleskey did not deliberately abandon the claim after raising
it in his first state habeas petition.  "This is not a case," the District
Court reasoned, "where petitioner has reserved his proof or deliberately
withheld his claim for a second petition."  Id., at 84.  The District Court
also determined that when McCles key filed his first federal petition, he
did not know about either the 21-page Evans document or the identity of
Worthy, and that the failure to discover the evidence for the first federal
petition "was not due to [McCleskey's] inexcusable neglect."  Id., at 85.
    The Eleventh Circuit reversed, holding that the District Court abused
its discretion by failing to dismiss McCleskey's Massiah claim as an abuse
of the writ.  McCleskey v. Zant, 890 F. 2d 342 (CA11 1989).  The Court of
Appeals agreed with the District Court that the petitioner must "show that
he did not deliberately abandon the claim and that his failure to raise it
[in the first federal habeas proceeding] was not due to inexcusable
neglect."  Id., at 346-347.  Accepting the District Court's findings that
at the first petition stage Mc Cleskey knew neither the existence of the
Evans statement nor the identity of Worthy, the court held that the
District Court "misconstru[ed] the meaning of deliberate abandonment."
Id., at 348-349.  Because McCleskey included a Massiah claim in his first
state petition, dropped it in his first federal petition, and then
reasserted it in his second federal petition, he "made a knowing choice not
to pursue the claim after having raised it previously" that constituted a
prima facie showing of "deliberate abandonment."  890 F. 2d, at 349.  The
court further found the State's alleged concealment of the Evans statement
irrelevant because it "was simply the catalyst that caused counsel to
pursue the Massiah claim more vigorously" and did not itself "demonstrate
the existence of a Massiah violation."  Id., at 350.  The court concluded
that McCleskey had presented no reason why counsel could not have
discovered Worthy earlier.  Ibid.  Finally, the court ruled that
McCleskey's claim did not fall within the ends of justice exception to the
abuse of the writ doctrine because any Massiah violation that may have been
committed would have been harmless error.  890 F. 2d, at 350-351.
    McCleskey petitioned this Court for a writ of certiorari, alleging
numerous errors in the Eleventh Circuit's abuse of the writ analysis.  In
our order granting the petition, we requested the parties to address the
following additional question: "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).

II
    The parties agree that the government has the burden of pleading abuse
of the writ, and that once the government makes a proper submission, the
petitioner must show that he has not abused the writ in seeking habeas
relief.  See Sanders v. United States, 373 U. S. 1, 10-11 (1963); Price v.
Johnston, 334 U. S. 266, 292 (1948).  Much confusion exists though, on the
standard for determining when a petitioner abuses the writ.  Although the
standard is central to the proper determination of many federal habeas
corpus actions, we have had little occasion to define it.  Indeed, there is
truth to the observation that we have defined abuse of the writ in an
oblique way, through dicta and denials of certiorari petitions or stay
applications.  See Witt v. Wainwright, 470 U. S. 1039, 1043 (1985)
(Marshall, J., dissenting).  Today we give the subject our careful
consideration.  We begin by tracing the historical development of some of
the substantive and procedural aspects of the writ, and then consider the
standard for abuse that district courts should apply in actions seeking
federal habeas corpus relief.

A
    The Judiciary Act of 1789, ch. 20, MDRV 14, 1 Stat. 81-82, empowered
federal courts to issue writs of habeas corpus to prisoners "in custody,
under or by colour of the authority of the United States."  In the early
decades of our new federal system, English common law defined the
substantive scope of the writ.  Ex parte Watkins, 3 Pet. 193, 201-203
(1830).  Federal prisoners could use the writ to challenge confinement
imposed by a court that lacked jurisdiction, ibid., or detention by the
executive without proper legal process, see Ex parte Wells, 18 How. 307
(1856).
    The common-law limitations on the scope of the writ were subject to
various expansive forces, both statutory and ju dicial.  See generally
Bator, Finality in Criminal Law and Federal Habeas Corpus for State
Prisoners, 76 Harv. L. Rev. 441, 463-499 (1963).  The major statutory
expansion of the writ occurred in 1867, when Congress extended federal
habeas corpus to prisoners held in state custody.  Act of Feb. 5, 1867, ch.
28, MDRV 1, 14 Stat. 385.  For the most part, however, expansion of the
writ has come through judicial decisionmaking.  As then-Justice Rehnquist
explained in Wainwright v. Sykes, 433 U. S. 72, 79 (1977), the Court began
by interpreting the concept of jurisdictional defect with generosity to
include sentences imposed without statutory authorization, Ex parte Lange,
18 Wall. 163, 176 (1874), and convictions obtained under an
unconstitutional statute, Ex parte Siebold, 100 U. S. 371, 376-377 (1880).
Later, we allowed habeas relief for confinement under a state conviction
obtained without adequate procedural protections for the defendant.  Frank
v. Mangum, 237 U. S. 309 (1915); Moore v. Dempsey, 261 U. S. 86 (1923).
    Confronting this line of precedents extending the reach of the writ, in
Waley v. Johnston, 316 U. S. 101 (1942), "the Court openly discarded the
concept of jurisdiction -- by then more a fiction than anything else -- as
a touchstone of the availability of federal habeas review, and acknowledged
that such review is available for claims of `disregard of the
constitutional rights of the accused, and where the writ is the only
effective means of preserving his rights.' "  Wainwright v. Sykes, supra,
at 79 (quoting Waley v. Johnston, supra, at 104-105).  With the exception
of Fourth Amendment violations that a petitioner has been given a full and
fair opportunity to litigate in state court, Stone v. Powell, 428 U. S.
465, 495 (1976), the writ today appears to extend to all dispositive
constitutional claims presented in a proper procedural manner.  See Brown
v. Allen, 344 U. S. 443 (1953); Wainwright v. Sykes, supra, at 79.
    One procedural requisite is that a petition not lead to an abuse of the
writ.  We must next consider the origins and meaning of that rule.

B
    At common law, res judicata did not attach to a court's denial of
habeas relief.  "[A] refusal to discharge on one writ [was] not a bar to
the issuance of a new writ."  1 W. Bailey, Law of Habeas Corpus and Special
Remedies 206 (1913) (citing cases).  "[A] renewed application could be made
to every other judge or court in the realm, and each court or judge was
bound to consider the question of the prisoner's right to a discharge
independently, and not to be influenced by the previous decisions refusing
discharge."  W. Church, Writ of Habeas Corpus MDRV 386, p. 570 (2d ed.
1893) (hereinafter Church).  See, e. g., Ex parte Kaine, 14 F. Cas. 79, 80
(No. 7, 597) (SDNY 1853); In re Kopel, 148 F. 505, 506 (SDNY 1906).  The
rule made sense because at common law an order denying habeas relief could
not be reviewed.  Church 570; L. Yackle, Postconviction Remedies MDRV 151,
p. 551 (1981); Goddard, A Note on Habeas Corpus, 65 L. Q. Rev. 30, 32
(1949).  Successive petitions served as a substitute for appeal.  See W.
Duker, A Constitutional History of Habeas Corpus 5-6 (1980); Church 570;
Goddard, supra, at 35.
    As appellate review became available from a decision in habeas refusing
to discharge the prisoner, courts began to question the continuing validity
of the common-law rule allowing endless successive petitions.  Church 602.
Some courts rejected the common-law rule, holding a denial of habeas relief
res judicata.  See, e. g., Perry v. McLendon, 62 Ga. 598, 603-605 (1879);
McMahon v. Mead, 30 S. D. 515, 518, 139 N. W. 122, 123 (1912); Ex parte
Heller, 146 Wis. 517, 524, 131 N. W. 991, 994 (1911).  Others adopted a
middle position between the extremes of res judicata and endless successive
petitions.  Justice Field's opinion on circuit in Ex parte Cuddy, 40 F. 62
(1889), exemplifies this balance.

[W]hile the doctrine of res judicata does not apply, . . . the officers
before whom the second application is made may take into consideration the
fact that a previous ap plication had been made to another officer and
refused; and in some instances that fact may justify a refusal of the
second.  The action of the court or justice on the second application will
naturally be affected to some degree by the character of the court or
officer to whom the first application was made, and the fullness of the con
sideration given to it. . . . In what I have said I refer, of course, to
cases where a second application is made upon the same facts presented, or
which might have been presented, on the first.  The question is entirely
different when subsequent occurring events have changed the situation of
the petitioner so as in fact to present a new case for consideration.  In
the present application there are no new facts which did not exist when the
first was presented. . . . I am of the opinion that in such a case a second
application should not be heard . . . ."  Id., at 65-66.


Cf. Ex parte Moebus, 148 F. 39, 40-41 (NH 1906) (second petition disallowed
"unless some substantial change in the circumstances had intervened").
    We resolved the confusion over the continuing validity of the
common-law rule, at least for federal courts, in Salinger v. Loisel, 265 U.
S. 224 (1924), and Wong Doo v. United States, 265 U. S. 239 (1924).  These
decisions reaffirmed that res judicata does not apply "to a decision on
habeas corpus refusing to discharge the prisoner."  Salinger v. Loisel,
supra, at 230; see Wong Doo v. United States, supra, at 240.  They
recognized, however, that the availability of appellate review required a
modification of the common-law rule allowing endless applications.  As we
explained in Salinger:
"In early times when a refusal to discharge was not open to appellate
review, courts and judges were accustomed to exercise an independent
judgment on each successive application, regardless of the number.  But
when a right to an appellate review was given the reason for that practice
ceased and the practice came to be materially changed . . . ."  265 U. S.,
at 230-231.


Relying on Justice Field's opinion in Ex parte Cuddy, we announced that
second and subsequent petitions should be

"disposed of in the exercise of a sound judicial discretion guided and
controlled by a consideration of whatever has a rational bearing on the
propriety of the discharge sought.  Among matters which may be considered,
and even given controlling weight, are (a) the existence of another remedy,
such as a right in ordinary course to an appellate review in the criminal
case, and (b) a prior refusal to discharge on a like application."  265 U.
S., at 231.


    Because the lower court in Salinger had not disposed of the subsequent
application for habeas corpus by reliance on dismissal of the prior
application, the decision did not present an opportunity to apply the
doctrine of abuse of the writ.  265 U. S., at 232.  Wong Doo did present
the question.  There, the District Court had dismissed on res judicata
grounds a second petition containing a due process claim that was raised,
but not argued, in the first federal habeas petition.  The petitioner "had
full opportunity to offer proof of [his due process claim] at the hearing
on the first petition," and he offered "[n]o reason for not presenting the
proof at the outset . . . ."  Wong Doo, 265 U. S., at 241.  The record of
the first petition did not contain proof of the due process claim, but
"what [was] said of it there and in the briefs show[ed] that it was
accessible all the time."  Ibid.  In these circumstances, we upheld the
dismissal of the second petition.  We held that "according to a sound
judicial discretion, controlling weight must have been given to the prior
refusal."  Ibid.  So while we rejected res judicata in a strict sense as a
basis for dismissing a later habeas action, we made clear that the prior
adjudication bore vital relevance to the exercise of the court's discretion
in determining whether to consider the petition.
    Price v. Johnston, 334 U. S. 266 (1948), the next decision in this
line, arose in a somewhat different context from Salinger or Wong Doo.  In
Price, the petitioner's fourth habeas petition alleged a claim that,
arguably at least, was neither the explicit basis of a former petition nor
inferable from the facts earlier alleged.  The District Court and Court of
Appeals dismissed the petition without hearing on the sole ground that the
claim was not raised in one of the earlier habeas actions.  We reversed and
remanded, reasoning that the dismissal "precluded a proper development of
the issue of the allegedly abusive use of the habeas corpus writ."  334 U.
S., at 293.  We explained that the State must plead an abuse of the writ
with particularity, and that the burden then shifts to petitioner to show
that presentation of the new claim does not constitute abuse.  Id., at 292.
The District Court erred because it dismissed the petition without
affording the petitioner an opportunity to explain the basis for raising
his claim late.  We gave directions for the proper inquiry in the trial
court.  If the explanation "is inadequate, the court may dismiss the
petition without further proceedings."  Ibid.  But if a petitioner
"present[s] adequate reasons for not making the allegation earlier, reasons
which make it fair and just for the trial court to overlook the delay," he
must be given the opportunity to develop these matters in a hearing.  Id.,
at 291-292.  Without considering whether the petitioner had abused the
writ, we remanded the case.
    Although Price recognized that abuse of the writ principles limit a
petitioner's ability to file repetitive petitions, it also contained dicta
touching on the standard for abuse that appeared to contradict this point.
Price stated that "the three prior refusals to discharge petitioner can
have no bearing or weight on the disposition to be made of the new matter
raised in the fourth petition."  Id., at 289.  This proposition ignored the
significance of appellate jurisdictional changes, see supra, at ---, as
well as the general disfavor we had expressed in Salinger and Wong Doo
toward endless repetitive petitions.  It did not even comport with language
in Price itself which recognized that in certain circumstances new claims
raised for the first time in a second or subsequent petition should not be
entertained.  As will become clear, the quoted portion of Price has been
ignored in our later decisions.
    One month after the Price decision, Congress enacted legislation, 28 U.
S. C. MDRV 2244, which for the first time addressed the issue of repetitive
federal habeas corpus petitions:

    "No circuit or district judge shall be required to entertain an
application for a writ of habeas corpus to inquire into the detention of a
person pursuant to a judgment of a court of the United States, or of any
State, if it appears that the legality of such detention has been
determined by a judge or court of the United States on a prior application
for a writ of habeas corpus and the petition presents no new ground not
theretofore presented and determined, and the judge or court is satisfied
that the ends of justice will not be served by such inquiry."  28 U. S. C.
MDRV 2244 (1964 ed.).


Because MDRV 2244 allowed a district court to dismiss a successive petition
that "present[ed] no new ground not theretofore presented and determined,"
one might have concluded, by negative implication, that Congress denied
permission to dismiss any petition that alleged new grounds for relief.
Such an interpretation would have superseded the judicial principles
recognizing that claims not raised or litigated in a prior petition could,
when raised in a later petition, constitute abuse.  But the Reviser's Note
to the 1948 statute made clear that as a general matter Congress did not
intend the new section to disrupt the judicial evolution of habeas
principles, 28 U. S. C. MDRV 2244 (1964 ed.) (Reviser's Note), and we
confirmed in Sanders v. United States, 373 U. S., at 11-12, that Congress'
silence on the standard for abuse of the writ involving a new claim was
"not intended to foreclose judicial application of the abuse-of-writ
principle as developed in Wong Doo and Price."
    Sanders also recognized our special responsibility in the development
of habeas corpus with respect to another provision of the 1948 revision of
the judicial code, 28 U. S. C. MDRV 2255 (1964 ed.).  The statute created a
new postconviction remedy for federal prisoners with a provision for
repetitive petitions different from the one found in MDRV 2244.  While MDRV
2244 permitted dismissal of subsequent habeas petitions that "present[ed]
no new ground not theretofore presented and determined," MDRV 2255 allowed
a federal district court to refuse to entertain a subsequent petition
seeking "similar relief."  On its face, MDRV 2255 appeared to announce a
much stricter abuse of the writ standard than its counterpart in MDRV 2244.
We concluded in Sanders, however, that the language in MDRV 2255 "cannot be
taken literally," and construed it to be the "material equivalent" of the
abuse standard in MDRV 2244.  Sanders v. United States, supra, at 13-14.
    In addition to answering these questions, Sanders undertook a more
general "formulation of basic rules to guide the lower federal courts"
concerning the doctrine of abuse of the writ.  Id., at 15.  After
reiterating that the government must plead abuse of the writ and the
petitioner must refute a well-pleaded allegation, Sanders addressed the
definition of and rationale for the doctrine.  It noted that equitable
principles governed abuse of the writ, including "the principle that a
suitor's conduct in relation to the matter at hand may disentitle him to
the relief he seeks," and that these principles must be applied within the
sound discretion of district courts.  Id., at 17-18.  The Court furnished
illustrations of writ abuse:

"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."  Id., at 18.


The Court also cited Fay v. Noia, 372 U. S. 391, 438-440 (1963), and
Townsend v. Sain, 372 U. S. 293, 317 (1963), for further guidance on the
doctrine of abuse of the writ, stating that the principles of those cases
"govern equally here."  373 U. S., at 18.  Finally, Sanders established
that federal courts must reach the merits of an abusive petition if "the
ends of justice demand."  Ibid.
    Three years after Sanders, Congress once more amended the habeas corpus
statute.  The amendment was an attempt to alleviate the increasing burden
on federal courts caused by successive and abusive petitions by
"introducing a greater degree of finality of judgments in habeas corpus
proceedings."  S. Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966); see also
H. R. Rep. No. 1892, 89th Cong., 2d Sess., 5-6 (1966).  The amendment
recast MDRV 2244 into three subparagraphs.  Subparagraph (a) deletes the
reference to state prisoners in the old MDRV 2244 but left the provision
otherwise intact.  28 U. S. C. MDRV 2244(a).  Subparagraph (c) states that
where a state prisoner seeks relief for an alleged denial of a federal
constitutional right before this Court, any decision rendered by the Court
shall be "conclusive as to all issues of fact or law with respect to an
asserted denial of a Federal right . . . ."  28 U. S. C. MDRV 2244(c).
    Congress added subparagraph (b) to address repetitive ap plications by
state prisoners:

    "(b) When after an evidentiary hearing on the merits of a material
factual issue, or after a hearing on the merits of an issue of law, a
person in custody pursuant to the judgment of a State court has been denied
by a court of the United States or a justice or judge of the United States
release from custody or other remedy on an ap plication for a writ of
habeas corpus, a subsequent ap plication for a writ of habeas corpus on
behalf of such person need not be entertained by a court of the United
States or a justice or judge of the United States 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,
justice, or judge 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. MDRV 2244(b).


Section (b) establishes a "qualified application of the doctrine of res
judicata."  S. Rep. No. 1797, supra, at 2.  It states that a federal court
"need not entertain" a second or subsequent habeas petition "unless" the
petitioner satisfies two conditions.  First, the subsequent petition must
allege a new ground, factual or otherwise.  Second, the applicant must
satisfy the judge that he did not deliberately withhold the ground earlier
or "otherwise abus[e] the writ."  See Smith v. Yeager, 393 U. S. 122, 125
(1968) ("essential question [under MDRV 2244(b)] is whether the petitioner
`deliberately withheld the newly asserted ground' in the prior proceeding,
or `otherwise abused the writ' ").  If the petitioner meets these
conditions, the court must consider the subsequent petition as long as
other habeas errors, such as nonexhaustion, 28 U. S. C. MDRV 2254(b), or
procedural default, Wainwright v. Sykes, 433 U. S. 72 (1977), are not
present.
    Section 2244(b) raises, but does not answer, other questions.  It does
not state whether a district court may overlook a deliberately withheld or
otherwise abusive claim to entertain the petition in any event.  That is,
it does not state the limits on the district court's discretion to
entertain abusive petitions.  Nor does the statute define the term "abuse
of the writ."  As was true of similar silences in the original 1948 version
of MDRV 2244, however, see supra, at ---, Congress did not intend MDRV
2244(b) to foreclose application of the courtannounced principles defining
and limiting a district court's discretion to entertain abusive petitions.
See Delo v. Stokes, 495 U. S. ---, --- (1990) (District Court abused
discretion in entertaining a new claim in a fourth federal petition that
was an abuse of the writ).
    Rule 9(b) of the Rules Governing Habeas Corpus Proceedings, promulgated
in 1976, also speaks to the problem of new grounds for relief raised in
subsequent petitions.  It provides:

"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."  28 U. S. C.
MDRV 2254 Rule 9(b).


Like 28 U. S. C. MDRV 2244(b), Rule 9(b) "incorporates the judgemade
principle governing the abuse of the writ set forth in Sanders."  Rose v.
Lundy, 455 U. S. 509, 521 (1982) (plu rality opinion); id., at 533
(Brennan, J., dissenting) (same).  The Advisory Committee Notes make clear
that a new claim in a subsequent petition should not be entertained if the
judge finds the failure to raise it earlier "inexcusable." Advisory
Committee Notes to Rule 9, 28 U. S. C. MDRV 2254, pp. 426-427.  The Notes
also state that a retroactive change in the law and newly discovered
evidence represent acceptable excuses for failing to raise the claim
earlier.  Id., at 427.
    In recent years we have applied the abuse of the writ doctrine in
various contexts.  In Woodard v. Hutchins, 464 U. S. 377 (1984) (per
curiam), the petitioner offered no explanation for asserting three claims
in a second federal habeas petition not raised in the first.  Five Justices
inferred from the lack of explanation that the three claims "could and
should have been raised in" the first petition, and that the failure to do
so constituted abuse of the writ.  Id., at 378379, and n. 3 (Powell, J.,
joined by four Justices concurring in grant of application to vacate stay).
Similarly, in Antone v. Dugger, 465 U. S. 200 (1984) (per curiam), we
upheld the Court of Appeals' judgment that claims presented for the first
time in a second federal petition constituted an abuse of the writ.  We
rejected petitioner's argument that he should be excused from his failure
to raise the claims in the first federal petition because his counsel
during first federal habeas prepared the petition in haste and did not have
time to become familiar with the case.  Id., at 205-206, and n. 4.  And
just last Term, we held that claims raised for the first time in a fourth
federal habeas petition abused the writ because they "could have been
raised" or "could have been developed" in the first federal habeas
petition.  Delo v. Stokes, supra, at ---.  See also Kuhlman v. Wilson, 477
U. S. 436, 444 n. 6 (1986) (plurality opinion) (petition that raises
grounds "available but not relied upon in a prior petition" is an example
of abuse of the writ); Straight v. Wainwright, 476 U. S. 1132, 1133 (1986)
(Powell, J., joined by three Justices concurring in denial of stay) (new
arguments in second petition that "plainly could have been raised earlier"
constitute abuse of the writ); Rose v. Lundy, supra, at 521 (plurality)
(prisoner who proceeds with exhausted claims in first federal petition and
deliberately sets aside his unexhausted claims risks dismissal of
subsequent federal petitions).

III
    Our discussion demonstrates that the doctrine of abuse of the writ
refers to a complex and evolving body of equitable principles informed and
controlled by historical usage, statutory developments, and judicial
decisions.  Because of historical changes and the complexity of the
subject, the Court has not "always followed an unwavering line in its
conclusions as to the availability of the Great Writ."  Fay v. Noia, 372 U.
S., at 411-412.  Today we attempt to define the doctrine of abuse of the
writ with more precision.
    Although our decisions on the subject do not all admit of ready
synthesis, one point emerges with clarity: Abuse of the writ is not
confined to instances of deliberate abandonment.  Sanders mentioned
deliberate abandonment as but one example of conduct that disentitled a
petitioner to relief.  Sanders cited a passage in Townsend v. Sain, 372 U.
S., at 317, which applied the principle of inexcusable neglect, and noted
that this principle also governs in the abuse of the writ context, Sanders
v. United States, 373 U. S., at 18.
    As Sanders' reference to Townsend demonstrates, as many courts of
appeals recognize, see e. g., McCleskey v. Zant, 890 F. 2d, at 346-347;
Hall v. Lockhart, 863 F. 2d 609, 610 (CA8 1988); Jones v. Estelle, 722 F.
2d 159, 163 (CA5 1983); Miller v. Bordenkircher, 764 F. 2d 245, 250-252
(CA4 1985), and as McCleskey concedes, Brief for Petitioner 39-40, 45-48, a
petitioner may abuse the writ by failing to raise a claim through
inexcusable neglect.  Our recent decisions confirm that a petitioner can
abuse the writ by raising a claim in a subsequent petition that he could
have raised in his first, regardless of whether the failure to raise it
earlier stemmed from a deliberate choice.  See, e. g., Delo v. Stokes, 495
U. S., at ---; Antone v. Dugger, supra, at 205-206.  See also 28 U. S. C.
MDRV 2244(b) (recognizing that a petitioner can abuse the writ in a fashion
that does not constitute deliberate abandonment).
    The inexcusable neglect standard demands more from a petitioner than
the standard of deliberate abandonment.  But we have not given the former
term the content necessary to guide district courts in the ordered
consideration of allegedly abusive habeas corpus petitions.  For reasons we
explain below, a review of our habeas corpus precedents leads us to decide
that the same standard used to determine whether to excuse state procedural
defaults should govern the determi nation of inexcusable neglect in the
abuse of the writ context.
    The prohibition against adjudication in federal habeas corpus of claims
defaulted in state court is similar in purpose and design to the abuse of
the writ doctrine, which in general prohibits subsequent habeas
consideration of claims not raised, and thus defaulted, in the first
federal habeas proceeding.  The terms "abuse of the writ" and "inexcusable
neglect," on the one hand, and "procedural default," on the other, imply a
background norm of procedural regularity binding on the petitioner.  This
explains the presumption against habeas adjudication both of claims
defaulted in state court and of claims defaulted in the first round of
federal habeas.  A federal habeas court's power to excuse these types of
defaulted claims derives from the court's equitable discretion.  See Reed
v. Ross, 468 U. S. 1, 9 (1984) (procedural default); Sanders v. United
States, 373 U. S., at 17-18 (abuse of the writ).  In habeas, equity
recognizes that "a suitor's conduct in relation to the matter at hand may
disentitle him to the relief he seeks."  Id., at 17.  For these reasons,
both the abuse of the writ doctrine and our procedural default
jurisprudence concentrate on a petitioner's acts to determine whether he
has a legitimate excuse for failing to raise a claim at the appropriate
time.
    The doctrines of procedural default and abuse of the writ implicate
nearly identical concerns flowing from the significant costs of federal
habeas corpus review.  To begin with, the writ strikes at finality.  One of
the law's very objects is the finality of its judgments.  Neither innocence
nor just punishment can be vindicated until the final judgment is known.
"Without finality, the criminal law is deprived of much of its deterrent
effect."  Teague v. Lane, 489 U. S. 288, 309 (1989).  And when a habeas
petitioner succeeds in obtaining a new trial, the " `erosion of memory' and
`dispersion of witnesses' that occur with the passage of time," Kuhl mann
v. Wilson, supra, at 453, prejudice the government and diminish the chances
of a reliable criminal adjudication.  Though Fay v. Noia, supra, may have
cast doubt upon these propositions, since Fay we have taken care in our
habeas corpus decisions to reconfirm the importance of finality.  See, e.
g., Teague v. Lane, supra, at 308-309; Murray v. Carrier, 477 U. S. 478,
487 (1986); Reed v. Ross, supra, at 10; Engle v. Isaac, 456 U. S. 107, 127
(1982).
    Finality has special importance in the context of a federal attack on a
state conviction.  Murray v. Carrier, supra, at 487; Engle v. Isaac, supra,
at 128.  Reexamination of state convictions on federal habeas "frustrate[s]
. . . `both the States' sovereign power to punish offenders and their
goodfaith attempts to honor constitutional rights.' "  Murray v. Carrier,
supra, at 487 (quoting Engle, supra, at 128).  Our federal system
recognizes the independent power of a State to articulate societal norms
through criminal law; but the power of a State to pass laws means little if
the State cannot enforce them.
    Habeas review extracts further costs.  Federal collateral litigation
places a heavy burden on scarce federal judicial resources, and threatens
the capacity of the system to resolve primary disputes.  Schneckloth v.
Bustamonte, 412 U. S. 218, 260 (1973) (Powell, J., concurring).  Finally,
habeas corpus review may give litigants incentives to withhold claims for
manipulative purposes and may establish disincentives to present claims
when evidence is fresh.  Reed v. Ross, supra, at 13; Wainwright v. Sykes,
433 U. S., at 89.
    Far more severe are the disruptions when a claim is presented for the
first time in a second or subsequent federal habeas petition.  If
"[c]ollateral review of a conviction extends the ordeal of trial for both
society and the accused," Engle v. Isaac, supra, at 126-127, the ordeal
worsens during subsequent collateral proceedings.  Perpetual disrespect for
the finality of convictions disparages the entire criminal justice system.

"A procedural system which permits an endless repetition of inquiry into
facts and law in a vain search for ultimate certitude implies a lack of
confidence about the possibilities of justice that cannot but war with the
underlying substantive commands. . . . There comes a point where a
procedural system which leaves matters perpetually open no longer reflects
humane concern but merely anxiety and a desire for immobility."  Bator, 76
Harv. L. Rev., at 452-453.


If re-examination of a conviction in the first round of federal habeas
stretches resources, examination of new claims raised in a second or
subsequent petition spreads them thinner still.  These later petitions
deplete the resources needed for federal litigants in the first instance,
including litigants commencing their first federal habeas action.  The
phenomenon calls to mind Justice Jackson's admonition that "[i]t must
prejudice the occasional meritorious application to be buried in a flood of
worthless ones."  Brown v. Allen, 344 U. S., at 537 (Jackson, J.,
concurring in result).  And if reexamination of convictions in the first
round of habeas offends federalism and comity, the offense increases when a
State must defend its conviction in a second or subsequent habeas
proceeding on grounds not even raised in the first petition.
    The federal writ of habeas corpus overrides all these considerations,
essential as they are to the rule of law, when a petitioner raises a
meritorious constitutional claim in a proper manner in a habeas petition.
Our procedural default jurisprudence and abuse of the writ jurisprudence
help define this dimension of procedural regularity.  Both doctrines impose
on petitioners a burden of reasonable compliance with procedures designed
to discourage baseless claims and to keep the system open for valid ones;
both recognize the law's interest in finality; and both invoke equitable
principles to define the court's discretion to excuse pleading and
procedural requirements for petitioners who could not comply with them in
the exercise of reasonable care and diligence.  It is true that a habeas
court's concern to honor state procedural default rules rests in part on
respect for the integrity of procedures "employed by a coordinate
jurisdiction within the federal system," Wainwright v. Sykes, supra, at 88,
and that such respect is not implicated when a petitioner defaults a claim
by failing to raise it in the first round of federal habeas review.
Nonetheless, the doctrines of procedural default and abuse of the writ are
both designed to lessen the injury to a State that results through
reexamination of a state conviction on a ground that the State did not have
the opportunity to address at a prior, appropriate time; and both doctrines
seek to vindicate the State's interest in the finality of its criminal
judgments.
    We conclude from the unity of structure and purpose in the
jurisprudence of state procedural defaults and abuse of the writ that the
standard for excusing a failure to raise a claim at the appropriate time
should be the same in both contexts.  We have held that a procedural
default will be excused upon a showing of cause and prejudice.  Wainwright
v. Sykes, supra.  We now hold that the same standard applies to determine
if there has been an abuse of the writ through inexcusable neglect.
    In procedural default cases, the cause standard requires the petitioner
to show that "some objective factor external to the defense impeded
counsel's efforts" to raise the claim in state court.  Murray v. Carrier,
477 U. S., at 488.  Objective factors that constitute cause include "
`interference by officials' " that makes compliance with the state's
procedural rule impracticable, and "a showing that the factual or legal
basis for a claim was not reasonably available to counsel."  Ibid.  In
addition, constitutionally "ineffective assistance of counsel . . . is
cause."  Ibid.  Attorney error short of ineffective assistance of counsel,
however, does not constitute cause and will not excuse a procedural
default.  Id., at 486-488.  Once the petitioner has established cause, he
must show " `actual prejudice' resulting from the errors of which he
complains."  United States v. Frady, 456 U. S. 152, 168 (1982).
    Federal courts retain the authority to issue the writ of habeas corpus
in a further, narrow class of cases despite a petitioner's failure to show
cause for a procedural default.  These are extraordinary instances when a
constitutional vio lation probably has caused the conviction of one
innocent of the crime.  We have described this class of cases as
implicating a fundamental miscarriage of justice.  Murray v. Carrier,
supra, at 485.
    The cause and prejudice analysis we have adopted for cases of
procedural default applies to an abuse of the writ inquiry in the following
manner.  When a prisoner files a second or subsequent application, the
government bears the burden of pleading abuse of the writ.  The government
satisfies this burden if, with clarity and particularity, it notes
petitioner's prior writ history, identifies the claims that appear for the
first time, and alleges that petitioner has abused the writ.  The burden to
disprove abuse then becomes petitioner's.  To excuse his failure to raise
the claim earlier, he must show cause for failing to raise it and prejudice
therefrom as those concepts have been defined in our procedural default
decisions.  The petitioner's opportunity to meet the burden of cause and
prejudice will not include an evidentiary hearing if the district court
determines as a matter of law that petitioner cannot satisfy the standard.
If petitioner cannot show cause, the failure to raise the claim in an
earlier petition may nonetheless be excused if he or she can show that a
fundamental miscarriage of justice would result from a failure to entertain
the claim.  Application of the cause and prejudice standard in the abuse of
the writ context does not mitigate the force of Teague v. Lane, supra,
which prohibits, with certain exceptions, the retroactive application of
new law to claims raised in federal habeas.  Nor does it imply that there
is a constitutional right to counsel in federal habeas corpus.  See
Pennsylvania v. Finley, 481 U. S. 551, 555 (1987) ("the right to appointed
counsel extends to the first appeal of right, and no further").
    Although the cause and prejudice standard differs from some of the
language in Price v. Johnston, 334 U. S. 266 (1948), it is consistent with
Cuddy, Salinger, Wong Doo, and Sanders, as well as our modern abuse of the
writ decisions, including Antone, Woodard, and Delo.  In addition, the
exception to cause for fundamental miscarriages of justice gives meaningful
content to the otherwise unexplained "ends of justice" inquiry mandated by
Sanders.  Sanders drew the phrase "ends of justice" from the 1948 version
of MDRV 2244.  28 U. S. C. MDRV 2244 (1964 ed.) (judge need not entertain
subsequent application if he is satisfied that "the ends of justice will
not be served by such inquiry").  Sanders v. United States, 373 U. S., at
15-17.  Although the 1966 revision to the habeas statute eliminated any
reference to an "ends of justice" inquiry, a plurality of the Court in
Kuhlmann v. Wilson, 477 U. S., at 454, held that this inquiry remained
appropriate, and required federal courts to entertain successive petitions
when a petitioner supplements a constitutional claim with a "colorable
showing of factual innocence."  The miscarriage of justice exception to
cause serves as "an additional safeguard against compelling an innocent man
to suffer an unconstitutional loss of liberty," Stone v. Powell, 428 U. S.,
at 492-493, n. 31, guaranteeing that the ends of justice will be served in
full.
    Considerations of certainty and stability in our discharge of the
judicial function support adoption of the cause and prejudice standard in
the abuse of the writ context.  Well-defined in the case law, the standard
will be familiar to federal courts.  Its application clarifies the
imprecise contours of the term "inexcusable neglect."  The standard is an
objective one, and can be applied in a manner that comports with the
threshold nature of the abuse of the writ inquiry.  See Price v. Johnston,
334 U. S., at 287 (abuse of the writ is "preliminary as well as collateral
to a decision as to the sufficiency or merits of the allegation itself").
Finally, the standard provides "a sound and workable means of channeling
the discretion of federal habeas courts."  Murray v. Carrier, 477 U. S., at
497.  "[I]t is important, in order to preclude individualized enforcement
of the Constitution in different parts of the Nation, to lay down as
specifically as the nature of the problem permits the standards or
directions that should govern the District Judges in the disposition of
applications for habeas corpus by prisoners under sentence of State
Courts."  Brown v. Allen, 344 U. S., at 501-502 (opinion of Frankfurter,
J.).
    The cause and prejudice standard should curtail the abusive petitions
that in recent years have threatened to undermine the integrity of the
habeas corpus process.  "Federal courts should not continue to tolerate --
even in capital cases -- this type of abuse of the writ of habeas corpus."
Woodard v. Hutchins, 464 U. S., at 380.  The writ of habeas corpus is one
of the centerpieces of our liberties.  "But the writ has potentialities for
evil as well as for good.  Abuse of the writ may undermine the orderly
administration of justice and therefore weaken the forces of authority that
are essential for civilization."  Brown v. Allen, supra, at 512 (opinion of
Frankfurter, J.).  Adoption of the cause and prejudice standard
acknowledges the historic purpose and function of the writ in our
constititonal system, and, by preventing its abuse, assures its continued
efficacy.
    We now apply these principles to the case before us.

IV
    McCleskey based the Massiah claim in his second federal petition on the
21-page Evans document alone.  Worthy's identity did not come to light
until the hearing.  The District Court found, based on the document's
revelation of the tactics used by Evans in engaging McCleskey in
conversation (such as his pretending to be Ben Wright's uncle and his claim
that he was supposed to participate in the robbery), that the document
established an ab initio relationship between Evans and the authorities.
It relied on the finding and on Worthy's later testimony to conclude that
the State committed a Massiah violation.
    This ruling on the merits cannot come before us or any federal court if
it is premised on a claim that constitutes an abuse of the writ.  We must
consider, therefore, the preliminary question whether McCleskey had cause
for failing to raise the Massiah claim in his first federal petition.  The
District Court found that neither the 21-page document nor Worthy were
known or discoverable before filing the first federal petition.  Relying on
these findings, McCleskey argues that his failure to raise the Massiah
claim in the first petition should be excused.  For reasons set forth
below, we disagree.
    That McCleskey did not possess or could not reasonably have obtained
certain evidence fails to establish cause if other known or discoverable
evidence could have supported the claim in any event.  "[C]ause . . .
requires a showing of some external impediment preventing counsel from
constructing or raising a claim."  Murray v. Carrier, supra, at 492 (em
phasis added).  For cause to exist, the external impediment, whether it be
government interference or the reasonable unavailability of the factual
basis for the claim, must have prevented petitioner from raising the claim.
See id., at 488 (cause if "interference by officials . . . made compliance
impracticable"); Amadeo v. Zant, 486 U. S. 214, 222 (1988) (cause if
unavailable evidence "was the reason" for default).  Abuse of the writ
doctrine examines petitioner's conduct: the question is whether petitioner
possessed, or by reasonable means could have obtained, a sufficient basis
to allege a claim in the first petition and pursue the matter through the
habeas process, see 28 U. S. C. MDRV 2254 Rule 6 (Discovery); Rule 7
(Expansion of Record); Rule 8 (Evidentiary Hearing).  The requirement of
cause in the abuse of the writ context is based on the principle that
petitioner must conduct a reasonable and diligent investigation aimed at
including all relevant claims and grounds for relief in the first federal
habeas petition.  If what petitioner knows or could discover upon
reasonable investigation supports a claim for relief in a federal habeas
petition, what he does not know is irrelevant.  Omission of the claim will
not be excused merely because evidence discovered later might also have
supported or strengthened the claim.
    In applying these principles, we turn first to the 21-page signed
statement.  It is essential at the outset to distinguish between two
issues: (1) Whether petitioner knew about or could have discovered the
21-page document; and (2) whether he knew about or could have discovered
the evidence the document recounted, namely the jail-cell conversations.
The District Court's error lies in its conflation of the two inquiries, an
error petitioner would have us perpetuate here.
    The 21-page document unavailable to McCleskey at the time of the first
petition does not establish that McCleskey had cause for failing to raise
the Massiah claim at the outset. {1}  Based on testimony and questioning at
trial, McCles key knew that he had confessed the murder during jail-cell
conversations with Evans, knew that Evans claimed to be a relative of Ben
Wright during the conversations, and knew that Evans told the police about
the conversations.  Knowledge of these facts alone would put McCleskey on
notice to pursue the Massiah claim in his first federal habeas petition as
he had done in the first state habeas petition.
    But there was more.  The District Court's finding that the 21-page
document established an ab initio relationship between Evans and the
authorities rested in its entirety on conversations in which McCleskey
himself participated.  Though at trial McCleskey denied the inculpatory
conversations, his current arguments presuppose them.  Quite apart from the
inequity in McCleskey's reliance on that which he earlier denied under
oath, the more fundamental point remains that because McCleskey
participated in the conversations reported by Evans, he knew everything in
the document that the District Court relied upon to establish the ab initio
connection between Evans and the police.  McCleskey has had at least
constructive knowledge all along of the facts he now claims to have learned
only from the 21-page document.  The unavailability of the document did not
prevent McCleskey from raising the Massiah claim in the first federal
petition and is not cause for his failure to do so.  And of course,
McCleskey cannot contend that his false representations at trial constitute
cause for the omission of a claim from the first federal petition.
    The District Court's determination that jailer Worthy's identity and
testimony could not have been known prior to the first federal petition
does not alter our conclusion.  It must be remembered that the 21-page
statement was the only new evidence McCleskey had when he filed the Massiah
claim in the second federal petition in 1987.  Under McCles key's own
theory, nothing was known about Worthy even then.  If McCleskey did not
need to know about Worthy and his testimony to press the Massiah claim in
the second petition, neither did he need to know about him to assert it in
the first.  Ignorance about Worthy did not prevent McCleskey from raising
the Massiah claim in the first federal petition and will not excuse his
failure to do so.
    Though this reasoning suffices to show the irrelevance of the District
Court's finding concerning Worthy, the whole question illustrates the
rationale for requiring a prompt investigation and the full pursuit of
habeas claims in the first petition.  At the time of the first federal
petition, written logs and records with prison staff names and assignments
existed.  By the time of the second federal petition officials had
destroyed the records pursuant to normal retention schedules.  Worthy's
inconsistent and confused testimony in this case demonstrates the obvious
proposition that fact-finding processes are impaired when delayed.  Had
McCleskey presented this claim in the first federal habeas proceeding when
official records were available, he could have identified the relevant
officers and cell assignment sheets.  The critical facts for the Massiah
claim, including the reason for Evans' placement in the cell adjacent to
McCleskey's and the precise conversation that each officer had with Evans
before he was put there, likely would have been reconstructed with greater
precision than now can be achieved.  By failing to raise the Massiah claim
in 1981, McCleskey foreclosed the procedures best suited for disclosure of
the facts needed for a reliable determination.
    McCleskey nonetheless seeks to hold the State responsible for his
omission of the Massiah claim in the first petition.  His current strategy
is to allege that the State engaged in wrongful conduct in withholding the
21-page document.  This argument need not detain us long.  When all is said
and done, the issue is not presented in the case, despite all the emphasis
upon it in McCleskey's brief and oral argument.  The Atlanta police turned
over the 21-page document upon request in 1987.  The District Court found
no misrepresentation or wrongful conduct by the State in failing to hand
over the document earlier, and our discussion of the evidence in the record
concerning the existence of the statement, see n., supra, as well as the
fact that at least four courts have considered and rejected petitioner's
Brady claim, belies McCles key's characterization of the case.  And as we
have taken care to explain, the document is not critical to McCleskey's
notice of a Massiah claim anyway.
    Petitioner's reliance on the procedural default discussion in Amadeo v.
Zant, 486 U. S. 214 (1988), is misplaced.  In Amadeo the Court mentioned
that government concealment of evidence could be cause for a procedural
default if it "was the reason for the failure of a petitioner's lawyers to
raise the jury challenge in the trial court."  Id., at 222.  This case
differs from Amadeo in two crucial respects.  First, there is no finding
that the State concealed evidence.  And second, even if the State
intentionally concealed the 21-page document, the concealment would not
establish cause here because, in light of McCleskey's knowledge of the
information in the document, any initial concealment would not have
prevented him from raising the claim in the first federal petition.
    As McCleskey lacks cause for failing to raise the Massiah claim in the
first federal petition, we need not consider whether he would be prejudiced
by his inability to raise the alleged Massiah violation at this late date.
See Murray v. Carrier, 477 U. S., at 494 (rejecting proposition that
showing of prejudice permits relief in the absence of cause).
    We do address whether the Court should nonetheless exercise its
equitable discretion to correct a miscarriage of justice.  That narrow
exception is of no avail to McCleskey.  The Massiah violation, if it be
one, resulted in the admission at trial of truthful inculpatory evidence
which did not affect the reliability of the guilt determination.  The very
statement McCleskey now seeks to embrace confirms his guilt.  As the
District Court observed:

"After having read [the Evans statement], the court has concluded that
nobody short of William Faulkner could have contrived that statement, and
as a consequence finds the testimony of Offie Evans absolutely to be true,
and the court states on the record that it entertains absolutely no doubt
as to the guilt of Mr. McCleskey."  4 Tr. 4.


We agree with this conclusion.  McCleskey cannot demonstrate that the
alleged Massiah violation caused the conviction of an innocent person.
Murray v. Carrier, supra, at 496.
    The history of the proceedings in this case, and the burden upon the
State in defending against allegations made for the first time in federal
court some 9 years after the trial, reveal the necessity for the abuse of
the writ doctrine.  The cause and prejudice standard we adopt today leaves
ample room for consideration of constitutional errors in a first federal
habeas petition and in a later petition under appropriate circumstances.
Petitioner has not satisfied this standard for excusing the omission of the
Massiah claim from his first petition.  The judgment of the Court of
Appeals is

    Affirmed.


89-7024 -- APPENDIX


McCLESKEY v. ZANT



89-7024 -- APPENDIX


McCLESKEY v. ZANT
 



APPENDIX -- Petitioner's Claims for Relief at Various Stages of the
Litigation

    1. Direct Appeal.  On direct appeal, McCleskey raised the following
claims: (1) the death penalty was administered in a discriminatory fashion
because of prosecutorial discretion, (2) the prosecutor conducted an
illegal postindictment lineup, (3) the trial court erred in admitting at
trial the statement McCleskey made to the police, (4) the trial court erred
in allowing Evans to testify about McCleskey's jail-house confession, (5)
the prosecutor failed to disclose certain impeachment evidence; and (6) the
trial court erred in admitting evidence of McCleskey's prior criminal acts.
McClesky v. State, 245 Ga. 108, 112-114, 263 S. E. 2d 146, 149-151 (1980).
    2. First State Habeas Corpus Petition.  McCleskey's first state habeas
petition alleged the following constitutional violations: (1) the Georgia
death penalty is administered arbitrarily, capriciously, and whimsically;
(2) Georgia officials imposed McCleskey's capital sentence pursuant to a
pattern and practice of discrimination on the basis of race, sex, and
poverty; (3) the death penalty lacks theoretical or factual justification
and fails to serve any rational interest; (4) McCleskey's death sentence is
cruel and unusual punishment in light of all mitigating factors; (5)
McCleskey received inadequate notice and opportunity to be heard; (6) the
jury did not constitute a fair cross section of the community; (7) the jury
was biased in favor of the prosecution; (8) the trial court improperly
excused two jurors who were opposed to the death penalty; (9) McCleskey's
postarrest statement should have been excluded because it was obtained
after an allegedly illegal arrest; (10) the postarrest statement was
extracted involuntarily; (11) the State failed to disclose an "arrangement"
with one of its key witnesses, Evans; (12) the State deliberately withheld
a statement made by McCleskey to Evans; (13) the trial court erred in
failing to grant McCleskey funds to employ experts in aid of his defense;
(14) three witnesses for the State witnessed a highly suggestive lineup
involving McCleskey prior to trial; (15) the trial court's jury
instructions concerning intent impermissibly shifted the burden of
persuasion to McCleskey; (16) the prosecution impermissibly referred to the
appellate process during the sentencing phase; (17) the trial court
improperly admitted evidence of other crimes for which McCleskey had not
been convicted; (18) the trial court's instructions concerning evidence of
McCleskey's other bad acts was overbroad; (19) the appellate review
procedures of Georgia denied McCleskey effective assistance of counsel, a
fair hearing, and the basic tools of an adequate defense; (20) the means by
which the death penalty is administered inflicts wanton and unnecessary
torture; (21) McCleskey was denied effective assistance of counsel in
numerous contexts; (22) introduction of statements petitioner made to Evans
were elicited in a situation created to induce McCleskey to make
incriminating statements; (23) the evidence was insufficient to convict
McCleskey of capital murder.  Petition, HC No. 4909, 2 Tr., Exh. H.
    3. First Federal Habeas Corpus Petition.  McCleskey raised the
following claims in his first federal habeas petition: (1) the Georgia
death penalty discriminated on the basis of race; (2) the State failed to
disclose an "understanding" with Evans; (3) the trial court's instructions
to the jury impermissibly shifted the burden to McCleskey; (4) the
prosecutor improperly referred to the appellate process at the sentencing
phase; (5) the trial court impermissibly refused to grant Mc Cleskey funds
to employ experts in aid of his defense; (6) the trial court's instructions
concerning evidence of McCleskey's other bad acts was overbroad; (7) the
trial court's instructions gave the jury too much discretion to consider
nonstatutory aggravating circumstances; (8) the trial court improperly
admitted evidence of other crimes for which McCleskey had not been
convicted; (9) three witnesses for the State witnessed a highly suggestive
lineup involving McCleskey prior to trial; (10) McCleskey's postarrest
statement should have been excluded because it was extracted involuntarily;
(11) the trial court impermissibly excluded two jurors who were opposed to
the death penalty; (12) the death penalty lacks theoretical or factual
justification and fails to serve any rational interest; (13) the State
deliberately withheld a statement made by McCleskey to Evans; (14) the
evidence was insufficient to convict McCleskey of capital murder; (15)
McCles key's counsel failed to investigate the State's evidence adequately;
(16) McCleskey's counsel failed to raise certain objections or make certain
motions at trial; (17) McCleskey's counsel failed to undertake an
independent investigation of possible mitigating circumstances prior to
trial; and (18) after trial, McCleskey's counsel failed to review and
correct the judge's sentence report.  McCleskey v. Zant, 580 F. Supp. 338
(ND Ga. 1984).
    4. Second State Habeas Petition.  In his second state habeas petition,
McCleskey alleged the following claims: (1) the prosecutor systematically
excluded blacks from the jury; (2) the State of Georgia imposed the death
penalty against McCleskey in a racially discriminatory manner; (3) the
State failed to disclose its agreement with Evans; (4) the trial court
impermissibly refused to grant McCleskey funds to employ experts in aid of
his defense; and (5) the prosecutor improperly referred to the appellate
process at the sentencing phase.  Petition, 2 Tr., Exh. G.
    5. Second Federal Habeas Corpus Petition.  In his second federal habeas
petition, McCleskey alleged the following claims: (1) Evans' testimony
concerning his conversation with McCleskey was inadmissible because Evans
acted as a state informant in a situation created to induce McCleskey to
make incriminating statements; (2) the State failed to correct the
misleading testimony of Evans; (3) the State failed to disclose "an
arrangement" with Evans; (4) the prosecutor improperly referred to the
appellate process at the sentencing phase; and (5) the State systematically
excluded blacks from McCles key's jury; (6) the death penalty was imposed
on McCleskey pursuant to a pattern and practice of racial discrimination by
Georgia officials against black defendants; and (7) the trial court
impermissibly refused to grant McCleskey funds to employ experts in aid of
his defense.  Federal Habeas Petition, 1 Tr., Exh. 1.

------------------------------------------------------------------------------
1
    We accept as not clearly erroneous the District Court finding that the
document itself was neither known nor reasonably discoverable at the time
of the first federal petition.  We note for sake of completeness, however,
that this finding is not free from substantial doubt.  The record contains
much evidence that McCleskey knew, or should have known, of the written
document.  When McCleskey took the stand at trial, the prosecutor asked him
about conversations with a prisoner in an adjacent cell.  These questions
provoked a side-bar conference.  The lawyers for the defense reasserted
their request for "statements from the defendant," to which the court
responded that "a statement . . . was furnished to the Court but . . .
doesn't help [McCleskey]."  App. 17.  If there were any doubt about an
additional document, it is difficult to see why such doubt had not
evaporated by the time of the direct appeal and both the first state and
first federal habeas actions.  In those proceedings McCleskey made
deliberate withholding of a statement by McCleskey to Evans the specific
basis for a Brady claim.  In rejecting this claim on direct review, the
Georgia Su preme Court said: "The prosecutor showed defense counsel his
file, but did not furnish this witness's [i. e. Evans'] statement."
McClesky v. State, 245 Ga. 108, 112, 263 S. E. 2d 146, 150 (1980) (emphasis
added).  At the first state habeas corpus hearing, McCleskey's trial
counsel testified that the prosecutor told him that the statement of an
unnamed individual had been presented to the trial court but withheld from
the defense.  The prosecutor made clear the individual's identity in his
February 1981 state habeas deposition when he stated:

". . . Offie Evans gave his statement but it was not introduced at the
trial.  It was part of the matter that was made [in] in camera inspection
by the judge prior to trial."  App. 25.
    All of this took place before the first federal petition.  The record,
then, furnishes strong evidence that McCleskey knew or should have known of
the Evans document before the first federal petition but chose not to
pursue it.  We need not pass upon the trial court's finding to the
contrary, however, for the relevant question in this case is whether he
knew or should have known of the contents of the conversations recounted in
the document.





Subject: 89-7024 -- DISSENT, McCLESKEY v. ZANT

 


    SUPREME COURT OF THE UNITED STATES


No. 89-7024



WARREN McCLESKEY, PETITIONER v. WALTER D. ZANT, SUPERINTENDENT, GEORGIA
DIAGNOSTIC & CLASSIFICATION CENTER

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

[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.

I
    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. {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 goodfaith 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 strictliability standard. {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 MDRV 133, p. 503 (1981). {3}

II
    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.

A
    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. MDRV 2244(b)
and in Habeas Corpus Rule 9(b).  Enacted three years after Sanders, MDRV
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. MDRV 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 MDRV 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 MDRV 4267, pp. 477478 (2d ed. 1988); L. Yackle,
supra, MDRV 154. {4}
    The majority concedes that MDRV 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 MDRV 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 MDRV 2244(b)
and Rule 9(b) codify Sanders.
    To give content to "otherwise abus[e] the writ" as used in MDRV
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," MDRV 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. {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-ofthe-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 MDRV 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, MDRV
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). {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. {7}

B
    Even if the fusion of cause-and-prejudice into the abuse-ofthe-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 MDRV 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. 15 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. {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 MDRV 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. MDRV
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 MDRV 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;  {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. {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.

III
    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; MDRV
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 MDRV 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. *. {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. {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 codefendant'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
selfserving 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.

IV
    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. MDRV 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. MDRV 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 MDRV 2244(b) unamended.

7
    Moreover, the rejected amendment to MDRV 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 MDRV 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-andprejudice 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
crossexamination.  The state has introduced no affirmative evidence that
Worthy is either lying or mistaken").
