Slip opinion

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 pre-
pared 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

      SAWYER v. WHITLEY, WARDEN
 certiorari to the united states court of ap-
 peals for the fifth circuit
No. 91-6382.   Argued February 25, 1992"Decided
            June 22, 1992

A Louisiana jury convicted petitioner Sawyer and
sentenced him to death for a murder in which
the victim was beaten, scalded with boiling wa-
ter, and set afire.  His conviction and sentence
were upheld on appeal, and his petitions for
state postconviction relief, as well as his
first petition for federal habeas relief, were
denied.  In a second federal habeas petition,
the District Court barred as abusive or suc-
cessive Sawyer's claims, inter alia, that the
police failed to produce exculpatory evi-
dence"evidence challenging a prosecution witne-
ss' credibility and a child witness' statements
that Sawyer had tried to prevent an accomplice
from setting fire to the victim"in violation of
his due process rights under Brady v. Maryland,
373 U.S. 83; and that his trial counsel's failure
to introduce mental health records as mitigat-
ing evidence in his trial's sentencing phase
constituted ineffective assistance of counsel.
The Court of Appeals affirmed, holding that
Sawyer had not shown cause for failure to raise
his claims in his earlier petition, and that it
could not otherwise reach the claims' merits
because he had not shown that he was ``actually
innocent'' of the death penalty under Louisiana
law.
Held:
1.To show ``actual innocence'' one must show by
clear and convincing evidence that but for a
constitutional error, no reasonable juror would
have found the petitioner eligible for the death
penalty under the applicable state law.  Pp.4--
13.
(a)Generally, a habeas petitioner must show
cause and prejudice before a court will reach
the merits of a successive, abusive, or de-
faulted claim.  Even if he cannot meet this sta-
ndard, a court may hear the merits of such
claims if failure to hear them would result in a
miscarriage of justice.  See, e. g., Kuhlman v.
Wilson, 477 U.S. 436.  The miscarriage of jus-
tice exception applies where a petitioner is
``actually innocent'' of the crime of which he was
convicted or the penalty which was imposed.
While it is not easy to define what is meant by
``actually innocent'' of the death penalty, the
exception is very narrow and must be determined
by relatively objective standards.  Pp.4-7.
(b)In order to avoid arbitrary and capricious
impositions of the death sentence, States have
adopted narrowing factors to limit the class of
offenders upon which the death penalty may be
imposed, as evidenced by Louisiana's definition
of capital murder as something more than inten-
tional killing and its requirement that before a
jury may recommend death, it must determine
that at least one of a list of statutory aggra-
vating factors exists.  Once eligibility for the
death penalty is established, however, the
emphasis shifts from narrowing the class of
eligible defendants by objective factors to
individualized consideration of a particular
defendant by the introduction of mitigating
evidence.  Within this framework, the Court of
Appeals applied the proper standard to deter-
mine ``actual innocence'' when it required Sawyer
to base his showing that no reasonable juror
would have found him eligible for the death
penalty under Louisiana law on the elements of
the crime itself and the existence of aggravat-
ing circumstances, but not the existence of
additional mitigating evidence that was not
introduced as a result of a claimed constitu-
tional error.  This standard hones in on the
objective factors that must be shown to exist
before a defendant is eligible to have the death
penalty imposed.  The adoption of stricter a
definition, which would limit any showing to the
elements of the crime, is rejected, since, by
stating in Smith v. Murray, 477 U.S. 527, 537,
that actual innocence could mean innocent of
the death penalty, this Court suggested a more
expansive meaning than simply innocence of the
capital offense itself.  Also rejected is a more
lenient definition, which would allow the showing
to extend beyond the elements of the crime and
the aggravating factors, to include mitigating
evidence which bears, not on the defendant's
eligibility to receive the death penalty, but
only on the ultimate discretionary decision
between that penalty and life imprisonment.
Including mitigating factors would make actual
innocence mean little more than what is already
required to show prejudice for purposes of
securing habeas relief and would broaden the
inquiry beyond what is a narrow exception to
the principle of finality.  Pp.8-13.
2.Sawyer has failed to show that he is actu-
ally innocent of the death penalty to which he
has been sentenced.  The psychological evidence
allegedly kept from the jury does not relate to
his guilt or innocence of the crime or to the
aggravating factors found by the jury"that the
murder was committed in the course of an ag-
gravated arson, and that it was especially
cruel, atrocious, or heinous"which made him
eligible for the death penalty.  Nor can it be
said that had this evidence been before the
jury a reasonable juror would not have found
both of the aggravating factors.  The evidence
allegedly kept from the jury due to an alleged
Brady violation also fails to show actual inno-
cence.  Latter-day impeachment evidence sel-
dom, if ever, makes a clear and convincing show-
ing that no reasonable juror would have be-
lieved the heart of the witness' account.  While
the statement that Sawyer did not set fire to
the victim goes to the jury's finding of aggra-
vated arson and, thus, to his guilt or innocence
and the first aggravating circumstance, it fails
to show that no rational juror would find both
of the aggravating factors.  The murder was
especially cruel, atrocious, and heinous quite
apart from the arson, and, even crediting the
hearsay statement, it cannot be said that no
reasonable juror would have found that he was
guilty of the arson for his participation under
Louisiana law.  Pp.13-16.
945 F.2d 812, affirmed.

Rehnquist, C. J., delivered the opinion of the
Court, in which White, Scalia, Kennedy, Souter,
and Thomas, JJ., joined.   Blackmun, J., filed an
opinion concurring in the judgment.  Stevens, J.,
filed an opinion concurring in the judgment, in
which Blackmun and O'Connor, JJ., joined.



Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, 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. 91-6382
              --------
ROBERT WAYNE SAWYER, PETITIONER v. JOHN WHITLEY, WARDEN
  on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [June 22, 1992]

  Chief Justice Rehnquist delivered the opinion
of the Court.
  The issue before the Court is the standard for
determining whether a petitioner bringing a
successive, abusive, or defaulted federal habeas
claim has shown he is ``actually innocent'' of the
death penalty to which he has been sentenced so
that the court may reach the merits of the claim.
Robert Wayne Sawyer, the petitioner in this case,
filed a second federal habeas petition containing
successive and abusive claims. The Court of
Appeals for the Fifth Circuit refused to examine
the merits of Sawyer's claims.  It held that Sawyer
had not shown cause for failure to raise these
claims in his earlier petition, and that he had not
shown that he was ``actually innocent'' of the crime
of which he was convicted or the penalty which was
imposed.  945 F. 2d 812 (1991).  We affirm the Court
of Appeals and hold that to show  actual inno-
cence one must show by clear and convincing
evidence that but for a constitutional error, no
reasonable juror would have found the petitioner
eligible for the death penalty under the applica-
ble state law.
  In 1979"13 years ago"petitioner and his accom-
plice, Charles Lane, brutally murdered Frances
Arwood who was a guest in the home petitioner
shared with his girlfriend, Cynthia Shano, and
Shano's two young children.  As we recounted in
our earlier review of this case, Sawyer v. Smith,
497 U. S. ___ (1990), petitioner and Lane returned
to petitioner's home after a night of drinking, and
argued with Arwood, accusing her of drugging one
of the children.  Petitioner and Lane then at-
tacked Arwood, beat her with their fists, kicked
her repeatedly, submerged her in the bathtub, and
poured scalding water on her before dragging her
back into the living room, pouring lighter fluid on
her body and igniting it.  Arwood lost conscious-
ness sometime during the attack and remained in a
coma until she died of her injuries approximately
two months later.  Shano and her children were in
the home during the attack, and Shano testified
that petitioner prevented them from leaving.
  At trial, the jury failed to credit petitioner's
``toxic psychosis'' defense, and convicted peti-
tioner of first-degree murder.  At the sentencing
phase, petitioner testified that he was intoxicat-
ed at the time of the murder and remembered only
bits and pieces of the events.  Petitioner's
sister, Glenda White, testified about petitioner's
deprived childhood, his affection and care for her
children, and that as a teenager petitioner had
been confined to a mental hospital for ``no reason''
where he had undergone shock therapy.  2 App.
505-516.  The jury found three statutory aggra-
vating factors, no statutory mitigating factors
and sentenced petitioner to death.
       Sawyer's conviction and sentence were af-
firmed on appeal by the Louisiana Supreme Court.
State v. Sawyer, 422 So. 2d 95 (1982).  We granted
certiorari, and vacated and remanded with in-
structions to reconsider in light of Zant v.
Stephens, 462 U. S. 862 (1983).  Sawyer v. Louisiana,
463 U. S. 1223 (1983).  On remand, the Louisiana
Supreme Court reaffirmed the sentence.  Sawyer v.
State, 442 So. 2d 1136 (1983), cert. denied, 466 U. S.
931 (1984).  Petitioner's first petition for state
postconviction relief was denied.  Louisiana ex
rel. Sawyer v. Maggio, 479 So. 2d 360, reconsid-
eration denied, 480 So. 2d 313 (La. 1985).  In
1986, Sawyer filed his first federal habeas peti-
tion, raising 18 claims, all of which were denied on
the merits.  See Sawyer v. Butler, 848 F. 2d 582
(CA5 1988), aff'd on rehearing en banc, 881 F. 2d
1273 (CA5 1989).  We again granted certiorari and
affirmed the Court of Appeals' denial of relief.
Sawyer v. Smith, supra.  Petitioner next filed a
second motion for state postconviction relief.
The state trial court summarily denied this
petition as repetitive and without merit, and the
Louisiana Supreme Court denied discretionary
review.  See 945 F. 2d, at 815.
  The present petition before this Court arises
out of Sawyer's second petition for federal
habeas relief.  After granting a stay and holding
an evidentiary hearing, the District Court denied
one of Sawyer's claims on the merits, and held that
the others were barred as either abusive or
successive.  772 F. Supp. 297 (ED La. 1991).  The
Court of Appeals granted a certificate of proba-
ble cause on the issue of whether petitioner had
shown that he is actually  innocent of the death
penalty such that a court should reach the
merits of the claims contained in this successive
petition.  945 F. 2d, at 814.  The Court of Appeals
held that the petitioner had failed to show that
he was actually innocent of the death penalty
because the evidence he argued had been uncon-
stitutionally kept from the jury failed to show
that Sawyer was ineligible for the death penalty
under Louisiana law.  For the third time we grant-
ed Sawyer's petition for certiorari, 502 U. S. ___
(1991), and we now affirm.
  Unless a habeas petitioner shows cause and
prejudice, see Wainwright v. Sykes, 433 U. S. 72,
(1977), a court may not reach the merits of: (a)
successive claims which raise grounds identical to
grounds heard and decided on the merits in a
previous petition, Kuhlmann v. Wilson, 477 U. S. 436
(1986); (b) new claims, not previously raised which
constitute an abuse of the writ, McCleskey v. Zant,
499 U. S. ___ (1991); or (c) procedurally defaulted
claims in which the petitioner failed to follow
applicable state procedural rules in raising the
claims.  Murray v. Carrier, 477 U. S. 478 (1986).
These cases are premised on our concerns for the
finality of state judgments of conviction, and the
 significant costs of federal habeas review.
McCleskey, supra, at ___; see, e.g., Engle v. Isaac,
456 U. S. 107, 126-128 (1982).
    We have previously held that even if a state
prisoner cannot meet the cause and prejudice
standard a federal court may hear the merits of
the successive claims if the failure to hear the
claims would constitute a  miscarriage of jus-
tice.  In a trio of 1986 decisions, we elaborated
on the miscarriage of justice, or  actual inno-
cence, exception.  As we explained Kuhlmann v.
Wilson, supra, the exception developed from the
language of the federal habeas statute which,
prior to 1966, allowed successive claims to be
denied without a hearing if the judge were ``satis-
fied that the ends of justice will not be served by
such inquiry.''  Id., at 448.  We held that despite
the removal of this statutory language from 28
U. S. C. 2244(b) in 1966, the miscarriage of jus-
tice exception would allow successive claims to be
heard if the petitioner ``establish[es] that under
the probative evidence he has a colorable claim of
factual innocence.''  Kuhlmann, 477 U. S., at 454.
In the second of these cases we held that the
actual innocence exception also applies to proce-
durally defaulted claims.  Murray v. Carrier,
supra.
  In Smith v. Murray, 477 U. S. 527 (1986), we found
no miscarriage of justice in the failure to exam-
ine the merits of procedurally defaulted claims in
the capital sentencing context.  We emphasized
that the miscarriage of justice exception is
concerned with actual as compared to legal inno-
cence, and acknowledged that actual innocence
``does not translate easily into the context of an
alleged error at the sentencing phase of a trial
on a capital offense.''  Id., at 537.  We decided
that the habeas petitioner in that case had failed
to show actual innocence of the death penalty
because the ``alleged constitutional error neither
precluded the development of true facts nor
resulted in the admission of false ones.''  Id., at
538.
  In subsequent cases, we have emphasized the
narrow scope of the fundamental miscarriage of
justice exception.  In Dugger v. Adams, 489 U. S. 401
(1989), we rejected the petitioner's claim that his
procedural default should be excused because he
had shown that he was actually innocent.  Without
endeavoring to define what it meant to be actually
innocent of the death penalty, we stated that
``[d]emonstrating that an error is by its nature
the kind of error that might have affected the
accuracy of a death sentence is far from demon-
strating that an individual defendant probably is
`actually innocent' of the sentence he or she
received.''  Id., at 412, n. 6.  Just last Term in
McCleskey v. Zant, supra, at "", we held that the
``narrow exception'' for miscarriage of justice was
of no avail to the petitioner because the consti-
tutional violation, if it occurred, ``resulted in
the admission at trial of truthful inculpatory
evidence which did not affect the reliability of
the guilt determination.''
  The present case requires us to further amplify
the meaning of  actual innocence in the setting
of capital punishment.  A prototypical example of
 actual innocence in a colloquial sense is the
case where the State has convicted the wrong
person of the crime.  Such claims are of course
regularly made on motions for new trial after
conviction in both state and federal courts, and
quite regularly denied because the evidence
adduced in support of them fails to meet the
rigorous standards for granting such motions.
But in rare instances it may turn out later, for
example, that another person has credibly con-
fessed to the crime, and it is evident that the law
has made a mistake.  In the context of a noncapital
case, the concept of  actual innocence is easy
to grasp.
     It is more difficult to develop an analogous
framework when dealing with a defendant who has
been sentenced to death.  The phrase  innocent of
death is not a natural usage of those words, but
we must strive to construct an analog to the
simpler situation represented by the case of a
noncapital defendant.  In defining this analog, we
bear in mind that the exception for  actual inno-
cence is a very narrow exception, and that to
make it workable it must be subject to determina-
tion by relatively objective standards.  In the
every day context of capital penalty proceedings,
a federal district judge typically will be present-
ed with a successive or abusive habeas petition
a few days before, or even on the day of, a sched-
uled execution, and will have only a limited time to
determine whether a petitioner has shown that his
case falls within the  actual innocence exception
if such a claim is made.
  Since our decision in Furman v. Georgia, 408 U. S.
238 (1972), our Eighth Amendment jurisprudence
has required those States imposing capital pun-
ishment to adopt procedural safeguards protect-
ing against arbitrary and capricious impositions
of the death sentence.  See, e.g., Gregg v. Georgia,
428 U. S. 153 (1976); Proffitt v. Florida, 428 U. S.
242 (1976); Jurek v. Texas, 428 U. S. 262 (1976).  In
response, the States have adopted various
narrowing factors which limit the class of offend-
ers upon which the sentencer is authorized to
impose the death penalty.  For example, the Loui-
siana statute under which petitioner was convict-
ed defines first-degree murder, a capital offense,
as something more than intentional killing.  In
addition, after a defendant is found guilty in
Louisiana of capital murder, the jury must also
find at the sentencing phase beyond a reasonable
doubt at least one of a list of statutory aggra-
vating factors before it may recommend that the
death penalty be imposed.
     But once eligibility for the death penalty has
been established to the satisfaction of the jury,
its deliberations assume a different tenor.  In a
series of cases beginning with Lockett v. Ohio, 438
U. S. 586, 604 (1978), we have held that the defen-
dant must be permitted to introduce a wide vari-
ety of mitigating evidence pertaining to his
character and background.  The emphasis shifts
from narrowing the class of eligible defendants by
objective factors to individualized consideration
of a particular defendant.  Consideration of
aggravating factors together with mitigating
factors, in various combinations and methods
dependent upon state law, results in the jury's or
judge's ultimate decision as to what penalty shall
be imposed.
     Considering Louisiana law as an example, then,
there are three possible ways in which  actual
innocence might be defined.  The strictest defi-
nition would be to limit any showing to the ele-
ments of the crime which the State has made a
capital offense.  The showing would have to negate
an essential element of that offense.  The Solici-
tor General, filing as amicus curiae in support of
respondent, urges the Court to adopt this stan-
dard.  We reject this submission as too narrow,
because it is contrary to the statement in Smith
that the concept of  actual innocence could be
applied to mean  innocent of the death penalty.
477 U. S., at 537.  This statement suggested a
more expansive meaning to the term of  actual
innocence in a capital case than simply innocence
of the capital offense itself.
  The most lenient of the three possibilities
would be to allow the showing of  actual inno-
cence to extend not only to the elements of the
crime, but also to the existence of aggravating
factors, and to mitigating evidence which bore,
not on the defendant's eligibility to receive the
death penalty, but only on the ultimate discre-
tionary decision between the death penalty and
life imprisonment.  This, in effect is what peti-
tioner urges upon us.  He contends that actual
innocence of the death penalty exists where
``there is a `fair probability' that the admission of
false evidence, or the preclusion of true mitigat-
ing evidence, [caused by a constitutional error]
resulted in a sentence of death.''  Brief for
Petitioner 18 (citation and footnote omitted).
Although petitioner describes his standard as
narrower than that adopted by the Eighth and
Ninth Circuit Courts of Appeals, in reality it
is only more closely related to the facts of his
case in which he alleges that constitutional error
kept true mitigating evidence from the jury.  The
crucial consideration according to petitioner, is
whether due to constitutional error the sentenc-
er was presented with ```a factually inaccurate
sentencing profile''' of the petitioner.  Brief for
Petitioner 15, n. 21, quoting Johnson v. Singletary,
938 F. 2d 1166, 1200 (CA11 1991) (en banc) (Anderson,
J. dissenting).
     Insofar as petitioner's standard would include
not merely the elements of the crime itself, but
the existence of aggravating circumstances, it
broadens the extent of the inquiry but not the
type of inquiry.  Both the elements of the crime
and statutory aggravating circumstances in
Louisiana are used to narrow the class of defen-
dants eligible for the death penalty.  And proof or
disproof of aggravating circumstances, like proof
of the elements of the crime, is confined by the
statutory definitions to a relatively obvious
class of relevant evidence.  Sensible meaning is
given to the term  innocent of the death penalty
by allowing a showing in addition to innocence of
the capital crime itself a showing that there was
no aggravating circumstance or that some other
condition of eligibility had not been met.
     But we reject petitioner's submission that the
showing should extend beyond these elements of
the capital sentence to the existence of addi-
tional mitigating evidence.  In the first place,
such an extension would mean that  actual inno-
cence amounts to little more than what is al-
ready required to show  prejudice, a necessary
showing for habeas relief for many constitutional
errors.  See, e.g., United States v. Bagley, 473
U. S. 667, 682 (1985); Strickland v. Washington, 466
U. S. 668, 694 (1984).  If federal habeas review of
capital sentences is to be at all rational, peti-
tioner must show something more in order for a
court to reach the merits of his claims on a
successive habeas petition than he would have had
to show to obtain relief on his first habeas
petition.
  But, more importantly, petitioner's standard
would so broaden the inquiry as to make it any-
thing but a  narrow exception to the principle of
finality which we have previously described it to
be.  A federal district judge confronted with a
claim of actual innocence may with relative ease
determine whether a submission, for example, that
a killing was not intentional, consists of credible,
noncumulative and admissible evidence negating
the element of intent.  But it is a far more diffi-
cult task to assess how jurors would have react-
ed to additional showings of mitigating factors,
particularly considering the breadth of those
factors that a jury under our decisions must be
allowed to consider.
       The Court of Appeals in this case took the
middle ground among these three possibilities for
defining  actual innocence of the death penalty,
and adopted this test:
``[W]e must require the petitioner to show,
based on the evidence proffered plus all
record evidence, a fair probability that a
rational trier of fact would have entertained
a reasonable doubt as to the existence of
those facts which are prerequisites under
state or federal law for the imposition of the
death penalty.'' 945 F. 2d, at 820 (footnotes
omitted).
The Court of Appeals standard therefore hones in
on the objective factors or conditions which must
be shown to exist before a defendant is eligible to
have the death penalty imposed.  The Eleventh
Circuit Court of Appeals has adopted a similar
``eligibility'' test for determining actual inno-
cence.  Johnson v. Singletary, 938 F. 2d 1166 (CA11
1991), petition for cert. pending, No. 91-6576.
We agree with the Courts of Appeals for the Fifth
and Eleventh Circuits that the  actual innocence
requirement must focus on those elements which
render a defendant eligible for the death penalty,
and not on additional mitigating evidence which
was prevented from being introduced as a result
of a claimed constitutional error.
     In the present petition, Sawyer advances two
claims, arising from two distinct groups of evi-
dentiary facts which were not considered by the
jury which convicted and sentenced Sawyer.  The
first group of evidence relates to petitioner's
role in the offense and consists of affidavits
attacking the credibility of Cynthia Shano and an
affidavit claiming that one of Shano's sons told a
police officer that Sawyer was not responsible
for pouring lighter fluid on Arwood and lighting it,
and that in fact Sawyer tried to prevent Charles
Lane from lighting Arwood on fire.  Sawyer claims
that the police failed to produce this exculpatory
evidence in violation of his due process rights
under Brady v. Maryland, 373 U. S. 83 (1963).  The
second group consists of medical records from
Sawyer's stays as a teenager in two different
mental heath institutions.  Sawyer alleges inef-
fective assistance of counsel in trial counsel's
failure to introduce these records in the sen-
tencing phase of his trial.
  The Court of Appeals held that petitioner's
failure to assert his Brady claim in his first
petition constituted an abuse of the writ, and
that he had not shown cause for failing to raise
the claim earlier under McCleskey.  945 F. 2d, at
824.  The ineffective assistance claim was held by
the Court of Appeals to be a successive claim
because it was rejected on the merits in Sawyer's
first petition, and petitioner failed to show
cause for not bringing all the evidence in support
of this claim earlier.  Id., at 823.  Petitioner does
not contest these findings of the Court of Ap-
peals.  Tr. of Oral Arg. 7.  Therefore we must
determine if petitioner has shown by clear and
convincing evidence that but for constitutional
error, no reasonable juror would find him eligible
for the death penalty under Louisiana law.
  Under Louisiana law, petitioner is eligible for
the death penalty because he was convicted of
first-degree murder" that is, an intentional
killing while in the process of committing an
aggravated arson"and because at the sentencing
phase the jury found two valid aggravating cir-
cumstances:  that the murder was committed in the
course of an aggravated arson, and that the
murder was especially cruel, atrocious, and
heinous.  The psychological evidence petitioner
alleges was kept from the jury due to the ineffec-
tive assistance of counsel does not relate to
petitioner's guilt or innocence of the crime.
Neither does it relate to either of the aggravat-
ing factors found by the jury which made petition-
er eligible for the death penalty.  Even if this
evidence had been before the jury, it cannot be
said that a reasonable juror would not have found
both of  the  aggravating  factors which make
petitioner eligible for the death penalty.
Therefore, as to this evidence, petitioner has not
shown that there would be a fundamental miscar-
riage of justice for the Court to fail to reexam-
ine the merits of this successive claim.
  We are convinced that the evidence allegedly
kept from the jury due to an alleged Brady viola-
tion also fails to show that the petitioner is
actually innocent of the death penalty to which he
has been sentenced.  Much of the evidence goes to
the credibility of Shano, suggesting e.g., that
contrary to her testimony at trial she knew
Charles Lane prior to the day of the murder; that
she was drinking the day before the murder; and
that she testified under a grant of immunity from
the prosecutor.  2 App. 589-608.  This sort of
latter-day evidence brought forward to impeach a
prosecution witness will seldom, if ever, make a
clear and convincing showing that no reasonable
juror would have believed the heart of Shano's
account of petitioner's actions.
  The final bit of evidence petitioner alleges was
unconstitutionally kept from the jury due to a
Brady violation was a statement made by Shano's
then 4-year-old son, Wayne, to a police officer
the day after the murder.  Petitioner has submit-
ted an affidavit from one Diane Thibodeaux stat-
ing that she was present when Wayne told a police
detective who asked who had lit Arwood on fire
that ``Daddy [Sawyer] tried to help the lady'' and
that the ``other man'' had pushed Sawyer back into
a chair.  2 App. 587.  The affidavit also states
that Wayne showed the officer where to find a
cigarette lighter and a can of lighter fluid in the
trash.  Ibid.  Because this evidence goes to the
jury's finding of aggravated arson, it goes both
to petitioner's guilt or innocence of the crime of
first-degree murder, and the aggravating circum-
stance of a murder committed in the course of an
aggravated arson.  However, we conclude that this
affidavit, in view of all the other evidence in the
record, does not show that no rational juror
would find that petitioner committed both of the
aggravating circumstances found by the jury.  The
murder was especially cruel, atrocious, and
heinous based on the undisputed evidence of
torture before the jury quite apart from the
arson (e.g., beating, scalding with boiling water).
As for the finding of aggravated arson, we agree
with the Court of Appeals that, even crediting the
information in the hearsay affidavit, it can-
not be said that no reasonable juror would have
found, in light of all the evidence, that petitioner
was guilty of the aggravated arson for his par-
ticipation under the Louisiana law of principals.-

  We therefore hold that petitioner has failed to
show by clear and convincing evidence that but for
constitutional error at his sentencing hearing, no
reasonable juror would have found him eligible for
the death penalty under Louisiana law.  The
judgment of the Court of Appeals is therefore
Affirmed.


Concur 1
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-6382
              --------
ROBERT WAYNE SAWYER, PETITIONER v. JOHN WHIT-
                                         LEY, WARDEN
  on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [June 22, 1992]

  Justice Blackmun, concurring in the judgment.
  I cannot agree with the majority that a federal
court is absolutely barred from reviewing a
capital defendant's abusive, successive, or
procedurally defaulted claim unless the defendant
can show  by clear and convincing evidence that
but for a constitutional error, no reasonable
juror would have found the petitioner eligible for
the death penalty under the applicable state law.
Ante, at 1.  For the reasons stated by Justice
Stevens in his separate opinion, post, which I join,
I believe that the Court today adopts an unduly
cramped view of  actual innocence.  I write sepa-
rately not to discuss the specifics of the Court's
standard, but instead to reemphasize my opposi-
tion to an implicit premise underlying the Court's
decision: that the only  fundamental miscarriage
of justice in a capital proceeding that warrants
redress is one where the petitioner can make out
a claim of  actual innocence.  I also write sepa-
rately to express my ever-growing skepticism
that, with each new decision from this Court
constricting the ability of the federal courts to
remedy constitutional errors, the death penalty
really can be imposed fairly and in accordance
with the requirements of the Eighth Amendment.                       I
  The Court repeatedly has recognized that
principles of fundamental fairness underlie the
writ of habeas corpus.  See Engle v. Isaac, 456
U. S. 107, 126 (1982); Sanders v. United States, 373
U. S. 1, 17-18 (1963).  Even as the Court has erected
unprecedented and unwarranted barriers to the
federal judiciary's review of the merits of claims
that state prisoners failed properly to present
to the state courts, or failed to raise in their
first federal habeas petitions, or previously
presented to the federal courts for resolution,
it consistently has acknowledged that exceptions
to these rules of unreviewability must exist to
prevent violations of fundamental fairness.  See
Engle, 456 U. S., at 135 (principles of finality and
comity  must yield to the imperative of correcting
a fundamentally unjust incarceration).  Thus, the
Court has held, federal courts may review proce-
durally defaulted, abusive, or successive claims
absent a showing of cause and prejudice if the
failure to do so would thwart the  ends of jus-
tice, see Kuhlmann v. Wilson, 477 U. S. 436, 455
(1986) (plurality opinion), or work a  fundamental
miscarriage of justice.  See Murray v. Carrier,
477 U. S. 478, 495-496 (1986); Smith v. Murray, 477
U. S. 527, 537-538 (1986); Dugger v. Adams, 489 U. S.
401, 412, n. 6 (1989); McCleskey v. Zant, 499 U. S.
___, ___ (1991) (slipop. 25).
  By the traditional understanding of habeas
corpus, a  fundamental miscarriage of justice
occurs whenever a conviction or sentence is
secured in violation of a federal constitutional
right.  See 28 U. S. C. 2254(a) (federal courts
 shall entertain habeas petitions from state
prisoners who allege that they are  in custody in
violation of the Constitution or laws or treaties
of the United States); Smith, 477 U. S., at 543-544
(Stevens, J., dissenting).  Justice Holmes ex-
plained that the concern of a federal court in
reviewing the validity of a conviction and death
sentence on a writ of habeas corpus is  solely the
question whether [the petitioner's] constitution-
al rights have been preserved.  Moore v. Dempsey,
261 U. S. 86, 88 (1923).
  In a trio of 1986 decisions, however, the Court
ignored these traditional teachings and, out of a
purported concern for state sovereignty, for the
preservation of state resources, and for the
finality of state court judgments, shifted the
focus of federal habeas review of procedurally
defaulted, successive, or abusive claims away
from the preservation of constitutional rights to
a fact-based inquiry into the petitioner's inno-
cence or guilt.  See Wilson, 477 U. S., at 454
(plurality opinion) ( the `ends of justice' require
federal courts to entertain [successive] peti-
tions only where the prisoner supplements his
constitutional claim with a colorable showing of
factual innocence); Carrier, 477 U. S., at 496 ( in
an extraordinary case, where a constitutional
violation has probably resulted in the conviction
of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a
showing of cause for the procedural default);
Smith, 477 U. S., at 537 (applying Carrier standard
to constitutional error at sentencing phase of
capital trial).  See also McCleskey, 499 U. S., at
___ (applying Carrier standard in  abuse of the
writ context) (slip op. 25).
  The Court itself has acknowledged that  the
concept of `actual,' as distinct from `legal,'
innocence does not translate easily into the
context of an alleged error at the sentencing
phase of a trial on a capital offense.  Smith, 477
U. S., at 537.  Undaunted by its own illogic, howev-
er, the Court adopted just such an approach in
Smith.  There, the Court was confronted with a
claim that the introduction at sentencing of
inculpatory statements made by Smith to a court-
appointed psychiatrist violated the Fifth Amend-
ment because Smith had not been informed that his
statements might be used against him or that he
had the right to remain silent and to have counsel
present.  Although the Court assumed the validity
of Smith's Fifth Amendment claim and recog-
nized the potential impact of the statement on the
jury, which found the aggravating circumstance of
 future dangerousness satisfied, see id., at
538, it nonetheless concluded, remarkably and
summarily, that admission of the statement did
not  pervert the jury's deliberations concerning
the ultimate question whether in fact petitioner
constituted a continuing threat to society
(emphasis in original).  Ibid.  Because Michael
Smith could not demonstrate cause for his proce-
dural default, and because, in the Court's view, he
had not made a substantial showing that the
alleged constitutional violation  undermined the
accuracy of the guilt or sentencing determina-
tion, id., at 539, his Fifth Amendment claim went
unaddressed and he was executed on July 31, 1986.
  In Dugger v. Adams, the Court continued to
equate the notion of a  fundamental miscarriage
of justice in a capital trial with the petitioner's
ability to show that he or she  probably is `actu-
ally innocent' of the sentence he or she re-
ceived, 489 U. S., at 412, n. 6, but appeared to
narrow the inquiry even further.  Adams' claim,
that the trial judge repeatedly had misinformed
the jurors, in violation of the Eighth Amendment
and Caldwell v. Mississippi, 472 U. S. 320 (1985),
that their sentencing vote was strictly advisory
in nature (when in fact Florida law permitted the
judge to overturn the jury's sentencing decision
only upon a clear and convincing showing that its
choice was erroneous), surely satisfied the
standard articulated in Smith: whether petitioner
can make out a  substantial claim that the alleged
error undermined the accuracy of the guilt or
sentencing determination.  477 U. S., at 539.  In a
cryptic discussion relegated to a footnote at the
end of its opinion, the Court in Adams rejected
this obvious application of the Smith standard,
apparently for no other reason than its belief
that Adams' ability to demonstrate a  fundamental
miscarriage of justice in this case somehow
would convert an  extraordinary exception into
an  ordinary one.  See 489 U. S., at 412, n. 6.  In
rejecting the Smith standard, the Court did not
even bother to substitute another in its place.
See ibid. ( We do not undertake here to define
what it means to be `actually innocent' of a death
sentence).  The Court refused to address Aubrey
Adams' claim of constitutional error, and he was
executed on May 4, 1989.
  Just last Term, in McCleskey v. Zant, the Court
again described the  fundamental miscarriage of
justice exception as a  `safeguard against
compelling an innocent man to suffer an unconsti-
tutional loss of liberty,' 499 U. S., at ___ (quot-
ing Stone v. Powell, 428 U. S. 465, 491-492, n. 31
(1976)) (slip op. 27).  Although the District Court
granted relief to McCleskey on his claim that
state authorities deliberately had elicited
inculpatory admissions from him in violation of his
Sixth Amendment right to counsel, see Massiah v.
United States, 377 U. S. 201 (1964), and excused his
failure to present the claim in his first federal
habeas petition because the State had withheld
documents and information establishing that claim,
see 499 U. S., at ___ - ___ (slip op. 6-7), the Court
concluded that McCleskey lacked cause for failing
to raise the claim earlier.  Id., at ___ (slip op.
33).  More important for our purposes, the Court
concluded that the  narrow exception by which
federal courts may  exercise [their] equitable
discretion to correct a miscarriage of justice
was 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 determina-
tion.  Ibid.  The Court refused to address Warren
McCleskey's claim of constitutional error, and he
was executed on September 24, 1991.
  The Court today takes for granted that the
foregoing decisions correctly limited the concept
of a  fundamental miscarriage of justice to
 actual innocence, even as it struggles, by
ignoring the  natural usage of those words and
resorting to  analog[s], see ante, at 6, to make
sense of  actual innocence in the capital con-
text.  I continue to believe, however, that the
Court's  exaltation of accuracy as the only
characteristic of `fundamental fairness' is deeply
flawed.  Smith, 477 U. S., at 545 (Stevens, J.,
dissenting).
  As an initial matter, the Court's focus on
factual innocence is inconsistent with Congress'
grant of habeas corpus jurisdiction, pursuant to
which federal courts are instructed to entertain
petitions from state prisoners who allege that
they are held  in custody in violation of the
Constitution or laws or treaties of the United
States.  28 U. S. C. 2254(a).  The jurisdictional
grant contains no support for the Court's deci-
sion to narrow the reviewing authority and obli-
gation of the federal courts to claims of factual
innocence.  See also 28 U. S. C. 2243 ( The court
shall . . . dispose of the matter as law and justice
require).  In addition, the actual innocence
standard requires a reviewing federal court,
unnaturally, to  function in much the same capaci-
ty as the state trier of fact; that is, to  make
a rough decision on the question of guilt or
innocence.  Wilson, 477 U. S., at 471, n. 7 (Brennan,
J., dissenting).
  Most important, however, the focus on innocence
assumes, erroneously, that the only value worth
protecting through federal habeas review is the
accuracy and reliability of the guilt determina-
tion.  But  [o]ur criminal justice system, and our
Constitution, protect other values in addition to
the reliability of the guilt or innocence determi-
nation, and the statutory duty to serve `law and
justice' should similarly reflect those values.
Smith, 477 U. S., at 545 (Stevens, J., dissenting).
The accusatorial system of justice adopted by the
Founders affords a defendant certain process-
based protections that do not have accuracy of
truth-finding as their primary goal.  These prote-
ctions"including the Fifth Amendment right against
compelled self-incrimination, the Eighth Amend-
ment right against the imposition of an arbitrary
and capricious sentence, the Fourteenth Amend-
ment right to be tried by an impartial judge, and
the Fourteenth Amendment right not to be indicted
by a grand jury or tried by a petit jury from which
members of the defendant's race have been sys-
tematically excluded"are debased, and indeed,
rendered largely irrelevant, in a system that
values the accuracy of the guilt determination
above individual rights.
  Nowhere is this single-minded focus on actual
innocence more misguided than in a case where a
defendant alleges a constitutional error in the
sentencing phase of a capital trial.  The Court's
ongoing struggle to give meaning to  innocence of
death simply reflects the inappropriateness of
the inquiry.  See Smith, 477 U. S., at 537; Adams,
489 U. S., at 412, n. 6; ante, at 6.   Guilt or inno-
cence is irrelevant in that context; rather, there
is only a decision made by representatives of the
community whether the prisoner shall live or die.
Wilson, 477 U. S., at 471-472, n. 7 (Brennan, J.,
dissenting).  See also Patchel, The New Habeas, 42
Hastings L. J. 941, 972 (1991).
  Only by returning to the federal courts' central
and traditional function on habeas review, evalu-
ating claims of constitutional error, can the
Court ensure that the ends of justice are served
and that fundamental miscarriages of justice do
not go unremedied.  The Court would do well to
heed Justice Black's admonition:  it is never too
late for courts in habeas corpus proceedings to
look straight through procedural screens in order
to prevent forfeiture of life or liberty in fla-
grant defiance of the Constitution.  Brown v.
Allen, 344 U. S. 443, 554 (1953) (dissenting opinion).
                      II
                       A
  When I was on the United States Court of Appeals
for the Eighth Circuit, I once observed, in the
course of reviewing a death sentence on a writ of
habeas corpus, that the decisional process in a
capital case is  particularly excruciating for
someone  who is not personally convinced of the
rightness of capital punishment and who questions
it as an effective deterrent.  Maxwell v. Bishop,
398 F. 2d 138, 153-154 (1968), vacated, 398 U. S. 262
(1970).  At the same time, however, I stated my then
belief that  the advisability of capital punish-
ment is a policy matter ordinarily to be resolved
by the legislature.  Id., at 154.  Four years
later, as a member of this Court, I echoed those
sentiments in my separate dissenting opinion in
Furman v. Georgia, 408 U. S. 238, 405 (1972).  Al-
though I reiterated my personal distaste for the
death penalty and my doubt that it performs any
meaningful deterrent function, see id., at 405-40-
6, I declined to join my Brethren in declaring the
state statutes at issue in those cases unconsti-
tutional.  See id., at 411 ( We should not allow our
personal preferences as to the wisdom of legisla-
tive and congressional action, or our distaste for
such action, to guide our judicial decision.).
  My ability in Maxwell, Furman, and the many other
capital cases I have reviewed during my tenure on
the federal bench to enforce, notwithstanding my
own deep moral reservations, a legislature's
considered judgment that capital punishment is an
appropriate sanction, has always rested on an
understanding that certain procedural safeguard-
s, chief among them the federal judiciary's power
to reach and correct claims of constitutional
error on federal habeas review, would ensure that
death sentences are fairly imposed.  Today, more
than 20 years later, I wonder what is left of that
premise underlying my acceptance of the death
penalty.
                       B
  Only last Term I had occasion to lament the
Court's continuing  crusade to erect petty
procedural barriers in the path of any state
prisoner seeking review of his federal constitu-
tional claims and its transformation of  the duty
to protect federal rights into a self-fashioned
abdication.  Coleman v. Thompson, 501 U. S. ___,
___, ___  (1991) (dissenting opinion) (slip op. 1 and
4).  This Term has witnessed the continued narrow-
ing of the avenues of relief available to federal
habeas petitioners seeking redress of their
constitutional claims.  See, e.g., Keeney v. Tamayo-
Reyes, ___ U. S. ___ (1992) (overruling Townsend v.
Sain, 372 U. S. 293 (1963), in part).  It has wit-
nessed, as well, the execution of two victims of
the  new habeas, Warren McCleskey and Roger
Keith Coleman.
  Warren McCleskey's case seemed the archetypal
 fundamental miscarriage of justice that the
federal courts are charged with remedying.  As
noted above, McCleskey demonstrated that state
officials deliberately had elicited inculpatory
admissions from him in violation of his Sixth
Amendment rights and had withheld information he
needed to present his claim for relief.  In addi-
tion, McCleskey argued convincingly in his final
hours that he could not even obtain an impartial
clemency hearing because of threats by state
officials against the pardons and parole board.
That the Court permitted McCleskey to be execut-
ed without ever hearing the merits of his claims
starkly reveals the Court's skewed value system,
in which finality of judgments, conservation of
state resources, and expediency of executions
seem to receive greater solicitude than justice
and human life.  See McCleskey v. Bowers, ___ U. S.
___ (1991) (Marshall, J., dissenting from denial of
stay of execution).
  The execution of Roger Keith Coleman is no less
an affront to principles of fundamental fairness.
Last Term, the Court refused to review the merits
of Coleman's claims by effectively overruling, at
Coleman's expense, precedents holding that state
court decisions are presumed to be based on the
merits (and therefore, are subject to federal
habeas review) unless they explicitly reveal that
they were based on state procedural grounds.  See
Coleman, 501 U. S., at ___ - ___ (dissenting opinion)
(slip op. 5-7).  Moreover, the Court's refusal last
month to grant a temporary stay of execution so
that the lower courts could conduct a hearing
into Coleman's well-supported claim that he was
innocent of the underlying offense demonstrates
the resounding hollowness of the Court's pro-
fessed commitment to employ the  fundamental
miscarriage of justice exception as a  safeguard
against compelling an innocent man to suffer an
unconstitutional loss of liberty.  McCleskey v.
Zant, 499 U. S., at ___ (internal quotation omitted)
(slip op. 27).  See Coleman v. Thompson, ___ U. S. ___
(1992) (opinion dissenting from denial of stay of
execution).
  As I review the state of this Court's capital
jurisprudence, I thus am left to wonder how the
ever-shrinking authority of the federal courts to
reach and redress constitutional errors affects
the legitimacy of the death penalty itself.  Since
Gregg v. Georgia, the Court has upheld the consti-
tutionality of the death penalty where sufficient
procedural safeguards exist to ensure that the
State's administration of the penalty is neither
arbitrary nor capricious.  See 428 U. S. 153, 189,
195 (1976) (joint opinion); Lockett v. Ohio, 438 U. S.
586, 601 (1978).  At the time those decisions
issued, federal courts possessed much broader
authority than they do today to address claims of
constitutional error on habeas review and, there-
fore, to examine the adequacy of a State's capital
scheme and the fairness and reliability of its
decision to impose the death penalty in a particu-
lar case.  The more the Court constrains the
federal courts' power to reach the constitutional
claims of those sentenced to death, the more the
Court undermines the very legitimacy of capital
punishment itself.



Concur 2
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-6382
              --------
ROBERT WAYNE SAWYER, PETITIONER v. JOHN WHITLEY, WARDEN
  on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [June 22, 1992]

  Justice Stevens, with whom Justice Blackmun
and Justice O'Connor join, concurring in the judg-
ment.
  Only 10 years ago, the Court reemphasized that
 [t]he writ of habeas corpus indisputably holds an
honored position in our jurisprudence.  Tracing
its roots deep into English common law, it claims
a place in Art. I of our Constitution.  Today, as in
prior centuries, the writ is a bulwark against
convictions that violate `fundamental fairness.'
Wainwright v. Sykes, 433 U. S. [72,] 97 [(1972)]
(Stevens, J., concurring).  Engle v. Isaac, 456
U. S. 107, 126 (1982).  It is this centrality of
 fundamental fairness that has led the Court to
hold that habeas review of a defaulted, succes-
sive, or abusive claim is available, even absent a
showing of cause, if failure to consider the claim
would result in a fundamental miscarriage of
justice.  See Sanders v. United States, 373 U. S. 1,
17-18 (1963); Engle, 456 U. S., at 135.
   In Murray v. Carrier, 477 U. S. 478, 495, 496
(1986), the Court ruled that the concept of  fun-
damental miscarriage of justice applies to those
cases in which the defendantwas  probably . . .
actually innocent.
The Court held that  in an extraordinary case, where a
constitutional violation has probably resulted in
the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in
the absence of a showing of cause for the proce-
dural default.  Id., at 496.  Having equated the
 ends of justice with  actual innocence, the
Court is now confronted with the task of giving
meaning to  actual innocence in the context of a
capital sentencing proceeding-hence the phrase
 innocence of death.
  While the conviction of an innocent person may
be the archetypal case of a manifest miscarriage
of justice, it is not the only case.  There is no
reason why  actual innocence must be both an
animating and the limiting principle of the work of
federal courts in furthering the  ends of jus-
tice.  As Judge Friendly emphasized, there are
contexts in which, irrespective of guilt or inno-
cence, constitutional errors violate fundamental
fairness.  Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi.
L. Rev. 142, 151-154 (1970).  Fundamental fairness is
more than accuracy at trial; justice is more than
guilt or innocence.
  Nowhere is this more true than in capital sen-
tencing proceedings.  Because the death penalty
is qualitatively and morally different from any
other penalty,  [i]t is of vital importance to the
defendant and to the community that any decision
to impose the death sentence be, and appear to be,
the consequence of scrupulously fair proce-
dures.  Smith v. Murray, 477 U. S. 527, 545-546
(1986) (Stevens, J., dissenting).  Accordingly, the
ends of justice dictate that  [w]hen a condemned
prisoner raises a substantial, colorable Eighth
Amendment violation, there is a special obligation
. . . to consider whether the prisoner's claim would
render his sentencing proceeding fundamentally
unfair.  Id., at 546.
  Thus the Court's first and most basic error
today is that it asks the wrong question.  Charged
with averting manifest miscarriages of justice,
the Court instead narrowly recasts its duty as
redressing cases of  actual innocence.  This
error aside, under a proper interpretation of the
Carrier analysis, the Court's definition of  inno-
cence of death is plainly wrong because it disre-
gards well-settled law"both the law of habeas
corpus and the law of capital punishment.
                       I
  The Court today holds that, absent a showing of
cause,a federal court may not review a capital defenda-
nt's defaulted, successive, or abusive claims
unless the defendant
 show[s] by clear and convincing evidence that
but for a constitutional error, no reasonable
juror would have found [him] eligible for the
death penalty.  Ante, at 1.
This definition of  innocence of the death sen-
tence deviates from our established jurispru-
dence in two ways.  First, the  clear and convinc-
ing evidence standard departs from a line of
decisions defining the  actual innocence excep-
tion to the cause-and-prejudice requirement.
Second, and more fundamentally, the Court's focus
on eligibility for the death penalty conflicts with
the very structure of the constitutional law of
capital punishment.
  As noted above, in Murray v. Carrier, the Court
held that in those cases in which ``a constitution-
al violation has probably resulted in the convic-
tion of one who is actually innocent, a federal
habeas court may grant the writ even in the
absence of a showing of cause for the procedural
default.  477 U. S., at 496 (emphasis supplied).
The Court has since frequently confirmed this
standard.  See, e.g., Coleman v. Thompson, 501 U. S.
___, ___ (1991); Dugger v. Adams, 489 U. S. 401, 412,
n. 6 (1989); Teague v. Lane, 489 U. S. 288, 313 (1989).
In subsequent decisions, both those involving
 innocence of the offense and those involving
 innocence of the death sentence, the Court has
employed the same standard of proof.  For exam-
ple, in Smith v. Murray, 477 U. S. 527 (1986), the
Court repeated the Carrier standard and applied
it in a capital sentencing proceeding.  The Court
ruled that Smith's claim did not present  the risk
of a manifest miscarriage of justice as it was
 devoid of any substantial claim that the alleged
error undermined the accuracy ofthe guilt or sentencing
determination.  Id., at 538-539.  Similarly, in Dugger v. Adams,
a case involving  innocence of the death sentence, the
Court stated the controlling standard as whether
an  individual defendant probably is `actually
innocent' of the sentence he or she received.
489 U. S., at 412, n. 6 (emphasis supplied).  In sum,
in construing both  innocence of the offense and
 innocence of the death sentence, we have
consistently required a defendant to show that
the alleged constitutional error has more likely
than not created a fundamental miscarriage of
justice.
  As we noted in another context,  [t]his outcome-
determinative standard has several strengths.  It
defines the relevant inquiry in a way familiar to
courts, though the inquiry, as is inevitable, is
anything but precise.  The standard also reflects
the profound importance of finality in criminal
proceedings.  Moreover, it comports with the
widely used standard for assessing motions for
new trial based on newly discovered evidence.
Strickland v. Washington, 466 U. S. 668, 693-694
(1984).
    Equally significant, this  probably resulted
standard is well calibrated to the manifest
miscarriage of justice exception.  Not only does
the standard respect the competing demands of
finality and fundamental fairness, it also fits
squarely within our habeas jurisprudence.  In
general, a federal court may entertain a default-
ed, successive, or abusive claim if a prisoner
demonstrates cause and prejudice.  See generally
McCleskey v. Zant, 499 U. S. ___, ___ (1991).  To
show  prejudice, a defendant must demonstrate
 a reasonable probability that, but for [the
alleged] erro[r], the result of the proceeding
would have been different.  Strickland, 466 U. S.,
at 694; see also United States v. Bagley, 473 U. S.
667, 682, 685 (1985).  The  miscarriage of justice
exception to this general rule requires a more
substantial showing: The defendant must not
simply demonstrate a reasonable probability of a
different result, he must show that the alleged
error more likely than not created a manifest
miscarriage of justice.  This regime makes logical
sense.  If a defendant cannot show cause and can
only show a  reasonable probability of a differ-
ent outcome, a federal court should not hear his
defaulted, successive, or abusive claim.  Only in
the  exceptional case in which a defendant can
show that the alleged constitutional error  prob-
ably resulted in the conviction (or sentencing) of
one innocent of the offense (or the death sen-
tence) should the court hear the defendant's
claim.
  The Court today repudiates this established
standard of proof and replaces it with a require-
ment that a defendant  show by clear and convinc-
ing evidence that . . . no reasonable juror would
have found [him] eligible for the death penalty.
Ante, at 1 (emphasis supplied).  I see no reason to
reject the established and well-functioning
 probably resulted standard and impose such a
severe burden on the capital defendant.  Although
we have frequently recognized the State's strong
interest in finality, we have never suggested that
that interest is sufficient to outweigh the
individual's claim to innocence.  To the contrary,
the  actual innocence exception itself manifests
our recognition that the criminal justice system
occasionally errs and that, when it does, finality
must yield to justice.
   The function of a standard of proof . . . is to
`instruct the factfinder concerning the degree of
confidence our society thinks he should have in
the correctness of factual conclusions for a
particular type of adjudication.'. . . The standard
serves to allocate the risk of error between the
litigants and to indicate the relative importance
attached to the ultimate decision.  Addington v.
Texas, 441 U. S. 418, 423 (1979) (citation omitted).
Neither of these considerations supports the
heightened standard of proof the Court imposes
today.
  First, there is no basis for requiring a federal
court to be virtually certain that the defendant
is actually ineligible for the death penalty,
before merely entertaining his claim.  We have
required a showing by clear and convincing evi-
dence in several contexts:  For example, the
medical facts underlying a civil commitment must
be established by this standard, Addington v.
Texas, supra, as must  actual malice in a libel
suit brought by a public official.  New York Times
Co. v. Sullivan, 376 U. S. 254, 279-280 (1964); see
also Anderson v. Liberty Lobby, Inc., 477 U. S. 242
(1986).  And we have required a related showing in
cases involving deportation, Woodby v. INS, 385
U. S. 276, 285-286 (1966), and denaturalization,
Schneiderman v. United States, 320 U. S. 118, 125
(1943).  In each of these contexts, the interests
of the nonmoving party were truly substantial:
personal liberty in Addington, freedom of expres-
sion inNew York Times, residence in Woodby, and citizen-
ship in Schneiderman.  In my opinion, the State's
interest in finality in a capital prosecution is
not nearly as great as any of these interests.
Indeed, it is important to remember that  inno-
cence of the death sentence is not a standard
for staying or vacating a death sentence, but
merely a standard for determining whether or not
a court should reach the merits of a defaulted
claim.  The State's interest in  finality in this
context certainly does not warrant a  clear and
convincing evidentiary standard.
  Nor is there any justification for allocating the
risk of error to fall so severely upon the capital
defendant or attaching greater importance to the
initial sentence than to the issue of whether that
sentence is appropriate.  The States themselves
have declined to attach such weight to capital
sentences:  most States provide plain-error
review for defaulted claims in capital cases.  See
Smith v. Murray, 477 U. S., at 548-550, n. 20 (col-
lecting authorities).  In this regard, the Court's
requirement that  innocence of death must be
demonstrated by  clear and convincing evidence
fails to respect the uniqueness of death penalty
decisions:  Nowhere is the need for accuracy
greater than when the State exercises its ulti-
mate authority and takes the life of one of its
citizens.
  Indeed, the Court's ruling creates a perverse
double standard.  While a defendant raising de-
faulted claims ina non-capital case must show that constitutional
error  probably resulted in a miscarriage of
justice, a capital defendant must present  clear
and convincing evidence that no reasonable juror
would find him eligible for the death penalty.  It is
heartlessly perverse to impose a more stringent
standard of proof to avoid a miscarriage of
justice in a capital case than in a noncapital
case.
  In sum, I see no reason to depart from settled
law, which clearly requires a defendant pressing
a defaulted, successive, or abusive claim to show
that a failure to hear his claim will  probably
result in a fundamental miscarriage of justice.
In my opinion, a corresponding standard governs a
defaulted, successive, or abusive challenge to a
capital sentence:  The defendant must show that
he is probably"that is, more likely than not" inn-
ocent of the death sentence.
                      II
  The Court recognizes that the proper definition
of  innocence of the death sentence must involve
a reweighing of the evidence and must focus on the
sentencer's likely evaluation of that evidence.
Thus, the Court directs federal courts to look to
whether a  reasonable juror would have found the
petitioner eligible for the death penalty.  Ante,
at 1 (emphasis added).  Nevertheless, the Court
inexplicably limits this inquiry in two ways.  First,
the Court holds that courts should consider only
evidence concerning aggravating factors.  As
demonstrated below, this limitation is wholly
without foundation and neglects the central role
of mitigating evidence in capital sentencing
proceedings.  Second, the Court requires a peti-
tioner to refute his eligibility for the death
penalty.  This narrow definition of  innocence of
the death sentence fails to recognize that, in
rare cases, even though a defendant is eligible
for the death penalty, such a  sentence may
nonetheless constitute a fundamental miscarriage
of justice.
  It is well established that,  in capital cases,
the sentencer may not refuse to consider or be
precluded from considering any relevant mitigat-
ing evidence.  Hitchcock v. Dugger, 481 U. S. 393,
394 (1987) (internal quotations and citations
omitted).  Yet in ascribing a narrow, eligibility-
based meaning to  innocence of the death sen-
tence the Court neglects this rudimentary
principle.
  As the Court recognizes, a single general direc-
tive animates and informs our capital-punishment
jurisprudence:   the death penalty [may not] be
imposed under sentencing procedures that creat[-
e] a substantial risk that [the death penalty]
would be inflicted in an arbitrary and capricious
manner.  Gregg v. Georgia, 428 U. S. 153, 188 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.).  As
applied and developed over the years, this con-
stitutional requirement has yielded two central
principles.  First, a sentencing scheme must
 genuinely narrow the class of persons eligible
for the death penalty.  Zant v. Stephens, 462 U. S.
862, 877 (1983).  Second, the sentencer must  not
be precluded from considering, as a mitigating
factor, any aspect of a defendant's character or
record and any of the circumstances of the of-
fense that the defendant proffers as a basis for
a sentence less than death.  Lockett v. Ohio, 438
U. S. 586, 604 (1978) (opinion of Burger, C. J.)
(emphasis in original).  Although these princi-
ples"one narrowing the relevant class, the other
broadening the scope of considered evi-
dence"seemingly point in opposite directions, in
fact both serve the same end:  ensuring that a
capital sentence is the product of individualized
and reasoned moral decisionmaking.
  Against this backdrop of well-settled law, the
Court's ruling is a startling anomaly.  The Court
holds that  innocence of the death sentence
concerns only  those elements which render a
defendant eligible for the death penalty, and not
. . . additional mitigating evidence which [constitu-
tional error precluded] from being introduced.
Ante, at 13 (emphasis added).  Stated bluntly, the
Court today respects only one of the two bedrock
principles of capital-punishment jurisprudence.
As such, the Court's impoverished vision of
capital sentencing is at odds with both the doc-
trine and the theory developed in our many deci-
sions concerning capital punishment.
  First, the Court implicitly repudiates the
requirement that the sentencer be allowed to
consider all relevant mitigating evidence, a
constitutive element of our Eighth Amendment
jurisprudence.  We have reiterated and applied
this principle in more than a dozen cases over the
last 14 years.  For example, in Eddings v. Oklahoma,
455 U. S. 104 (1982), we overturned a capital
sentence because the sentencer refused to
consider certain mitigating evidence.  Similarly,
in Skipper v. South Carolina, 476 U. S. 1 (1986), we
ruled that a State cannot preclude consideration
of evidence of postincarceration, pretrial good
behavior.  And in Penry v. Lynaugh, 492 U. S. 302
(1989), we held that Texas' death penalty scheme
impermissibly restricted the jury's consideration
of the defendant's mental retardation as mitigat-
ing evidence.
  Moreover, the Court's holding also clashes with
the theory underlying our capital-punishment
jurisprudence.  The nonarbitrariness"and there-
fore the constitutionality"of the death penalty
rests on individualized sentencing determina-
tions.  See generally California v. Brown, 479 U. S.
538, 544-546 (1987) (O'Connor, J., concurring).  This
is the difference between the guided-discretion
regime upheld in Gregg v. Georgia and the mandato-
ry death-sentence regime invalidated in Roberts
v. Louisiana, 428 U. S. 325 (1976).  The Roberts
scheme was constitutionally infirm because it left
no room for individualized moral judgments, be-
cause it failed to provide the sentencer with a
 meaningful opportunity [to] conside[r the]
mitigating factors presented by the circumstanc-
es of the particular crime or by the attributes of
the individual offender.  Id., at 333-334 (opinion
of Stewart, Powell, and Stevens, JJ.).  The Court's
definition of  innocence of the death sentence is
like the statutory scheme in Roberts:  it focuses
solely on whether the defendant is in a class
eligible for the death penalty and disregards the
equally important question of whether  `death is
the appropriate punishment in [the defendant's]
specific case.'  Zant v. Stephens, 462 U. S., at 885
(quoting Woodson v. North Carolina, 428 U. S. 280,
305 (1976)).
   The Court's definition of  innocent of the death
sentence is flawed in a second, related, way.  The
Court's analysis not only neglects errors that
preclude a sentencer's consideration of mitigat-
ing factors; it also focuses too narrowly on
eligibility.  The Court requires a defendant to
call into question all of the aggravating factors
found by the sentencer and thereby show himself
ineligible for the death penalty.
  Contrary to the Court's suggestion, however,
there may be cases in which, although the defen-
dant remains eligible for the death penalty,
imposition of a death sentence would constitute
a manifest miscarriage of justice.  If, for example,
the sentencer, in assigning a sentence of death,
relied heavily on a finding that the defendant
severely tortured the victim, but later it is
discovered that another person was responsible
for the torture, the elimination of the aggravat-
ing circumstance will, in some cases, indicate that
the death sentence was a miscarriage of justice.
By imposing an  all-or-nothing eligibility test,
the Court's definition of  innocent of the death
sentence fails to acknowledge this important
possibility.
  In sum, the Court's  innocent of the death
sentence standard is flawed both in its failure
to consider constitutional errors implicating
mitigating factors, and in its unduly harsh re-
quirement that a defendant's eligibility for the
death penalty be disproved.
                      III
  In my opinion, the  innocence of the death
sentence standard must take into account sever-
al factors.  First, such a standard must reflect
both of the basic principles of our capital-pun-
ishment jurisprudence.  The standard must recog-
nize both the need to define narrowly the class of
 death-eligible defendants and the need to
define broadly the scope of mitigating evidence
permitted the capital sentencer.  Second, the
 innocence of the death sentence standard
should also recognize the distinctive character
of the capital-sentencing decision.  While the
question of innocence or guilt of the offense is
essentially a question of fact, the choice between
life imprisonment and capital punishment is both a
question of underlying fact and a matter of
reasoned moral judgment.  Thus, there may be some
situations in which, although the defendant
remains technically  eligible for the death
sentence, nonetheless, in light of all of the
evidence, that sentence constitutes a manifest
miscarriage of justice.  Finally, the  innocence of
the death sentence standard must also respect
the  profound importance of finality in criminal
proceedings, Strickland v. Washington, 466 U. S.,
at 693-694, and the  heavy burden that succes-
sive habeas petitions place  on scarce federal
judicial resources.  McCleskey v. Zant, 499 U. S.,
at ___.
  These requirements are best met by a standard
that provides that a defendant is  innocent of
the death sentence only if his capital sentence
is clearly erroneous.  This standard encompasses
several types of error.  A death sentence is
clearly erroneous if, taking into account all of
the available evidence, the sentencer lacked the
legal authority to impose such a sentence be-
cause, under state law, the defendant was not
eligible for the death penalty.  Similarly, in the
case of a  jury override, a death sentence is
clearly erroneous if, taking into account all of
the evidence, the evidentiary prerequisites for
that override (as established by state law) were
not met.  See, e.g., Johnson v. Singletary, 938 F. 2d
1166, 1194-1195 (CA11 1991) (Tjoflat, C. J., concurring
in part and dissenting in part) (concluding that
the sentencing  judge, as a matter of law, could
not have sentenced the petitioner to death
because there was insufficient evidence to meet
the jury-override standard established in Tedder
v. State, 322 So. 2d 908, 910 (Fla. 1975)).  A death
sentence is also clearly erroneous under a
 balancing regime if, in view of all of the evi-
dence, mitigating circumstances so far outweighed
aggravating circumstances that no reasonable
sentencer would have imposed the death penalty.
Cf. Jackson v. Virginia, 443 U. S. 307, 316-318
(1979).  Such a case might arise if constitutional
error either precluded the defendant from demon-
strating that aggravating circumstances did not
obtain or precluded the sentencer's consideration
of important mitigating evidence.
  Unlike the standard suggested by the Court, this
standard acknowledges both the  aggravation and
 mitigation aspects of capital-punishment law.
It recognizes that, in the extraordinary case,
constitutional error may have precluded consid-
eration of mitigating circumstances so substan-
tial as to warrant a court's review of a defaulted,
successive, or abusive claim.  It also recognizes
that, again in the extraordinary case, constitu-
tional error may have inaccurately demonstrated
aggravating circumstances so substantial as to
warrant review of a defendant's claims.
  Moreover, the  clearly erroneous standard is
duly protective of the State's legitimate inter-
ests in finality and respectful of the systemic
and institutional costs of successive habeas
litigation.  The standard is stringent:  if the
sentence  is plausible in light of the record
viewed in its entirety it is not clearly errone-
ous  even though [the court is] convinced that
had it been sitting as the [sentencer], it would
have weighed the evidence differently.  Anderson
v. Bessemer City, 470 U. S. 564, 574 (1985).  At the
same time,  clearly erroneous review allows a
federal court to entertain a defaulted claim in
the rare case in which the  court on the entire
evidence is left with the definite and firm convic-
tion that a mistake has been committed.  United
States v. United States Gypsum Co., 333 U. S. 364,
395 (1948).
  Finally, the clearly erroneous standard is
workable.  As was true of the cause-and-prejudice
standard adopted in McCleskey v. Zant, the clear-
error standard is  [w]ell-defined in the case law
[and] familiar to federal courts. . . .  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.  499 U. S., at ___.
Federal courts have long applied the  clearly
erroneous standard pursuant to Rule 52 of the
Federal Rules of Civil Procedure and have done so
 in civil contempt actions, condemnation proceed-
ings, copyright appeals, [and] forfeiture actions
for illegal activity.  1 S. Childress & M. Davis,
Standards of Review 2.3 at 29-30 (1986) (citing
cases).  This workability supports the appli-
cation of the clearly erroneous standard to the
 innocence of the death sentence inquiry.
  In my opinion, then, the  clearly erroneous
standard is the core of the  innocence of the
death sentence exception.  Just as a defendant
who presses a defaulted, successive, or abusive
claim and who cannot show cause must demonstrate
that it is more likely than not that he is actually
innocent of the offense, so a capital defendant
who presses such a claim and cannot show cause
must demonstrate that it is more likely than not
that his death sentence was clearly erroneous.
Absent such a showing, a federal court may not
reach the merits of the defendant's defaulted,
successive, or abusive claim.
                      IV
  It remains to apply this standard to the case at
hand.  As the majority indicates, Sawyer alleges
two constitutional errors.  First, he contends
that the State withheld certain exculpatory
evidence, in violation of Sawyer's due process
rights as recognized in Brady v. Maryland, 373 U. S.
83 (1963).  Second, Sawyer argues that his trial
counsel's failure to uncover and present records
from Sawyer's earlier treatments in psychiatric
institutions deprived him of effective assistance
of counsel as guaranteed by the Sixth Amendment.

  As Sawyer failed to assert his Brady claim in an
earlier habeas petition and as he cannot show
cause for that failure, the court may only reach
the merits of that  abusive claim if Sawyer
demonstrates that he is probably actually inno-
cent of the offense or that it is more likely than
not that his death sentence was clearly errone-
ous.  As Sawyer's ineffective-assistance claim
was considered and rejected in an earlier habeas
proceeding, the court may only review that  suc-
cessive claim upon a similar showing.  Upon a
review of the record in its entirety, I conclude
that Sawyer has failed to make such a showing.
  Sawyer points to two pieces of exculpatory
evidence allegedly withheld by the State.  First,
he offers the affidavit of a woman (Diane Thibode-
aux) who, on occasion, took care of the small child
who witnessed the crime.  That account appears to
conflict with contemporaneous police reports.
While police records indicate that the child
implicated Sawyer in the cruel burning of the
victim, Thibodeaux avers that the child stated to
her that Sawyer's codefendant, Charles Lane, set
the victim afire.  Second, he offers other affida-
vits casting doubt on the credibility ofCindy Shano,
the State's principal witness.
Sawyer emphasizes that Shano testified under a
grant of immunity and highlights inaccuracies in
her trial testimony.  Finally, as part of his Sixth
Amendment claim, Sawyer also offers medical
records documenting brain damage and retarded
mental development.
  Viewed as a whole, the record does not demon-
strate that failure to reach the merits of Sawye-
r's claims would constitute a fundamental miscar-
riage of justice.  First, in view of the other
evidence in the record, the Thibodeaux affidavit
and questions concerning Shano's testimony do not
establish that Sawyer is  probably . . . actually
innocent of the crime of first-degree murder.  At
most, Thibodeaux's hearsay statements cast
slight doubt on the facts underlying the burning
of the victim.  Similarly, although the challenges
to Shano's testimony raise questions, these
affidavits do not demonstrate that Sawyer proba-
bly did not commit first-degree murder.  Thus,
Sawyer has not met the standard  actual inno-
cence exception.
  Second, the affidavits and the new medical
records do not convince me that Sawyer's death
sentence is clearly erroneous.  The jury found
two statutory aggravating factors"that the
murder was committed in the course of an aggra-
vated arson, and that the murder was especially
heinous, atrocious, and cruel.  State v. Sawyer,
422 So. 2d 95, 100 (La. 1982).  As suggested above,
the Thibodeaux affidavit does not show that it is
 more likely than not that Sawyer did not commit
aggravated arson.  Moreover, Sawyer offers no
evidence to undermine the jury's finding that the
murder was especially heinous, atrocious, and
cruel.  In addition, assuming that the new medical
evidence would support a finding of a statutory
mitigating factor (diminished capacity due to
mental disease or defect), I cannot say that
it would be clear error for a sentencer faced with
the two unrefuted aggravating circumstances and
that single mitigating circumstance to sentence
Sawyer to death.
  In sum, in my opinion Sawyer has failed to demon-
strate that it is more likely than not that his
death sentence was clearly erroneous.  Accord-
ingly, I conclude that the court below was correct
in declining to reach the merits of Sawyer's
successive and abusive claims.
                       V
  The Court rejects an  innocence of death
standard that recognizes constitutional errors
affecting mitigating evidence because such a
standard  would so broaden the inquiry as to make
it anything but a `narrow' exception to the princi-
ple of finality.  Ante, at 11.  As the foregoing
analysis indicates, however, the Court's concerns
are unfounded.  Indeed, even when federal courts
have applied a less restrictive standard than the
standard I propose, those courts have rarely
found  innocence of death and reached the merits
of a defaulted, successive, or abusive claim.  See
Deutscher v. Whitley, 946 F. 2d 1443 (CA9 1991);
Stokes v. Armontrout, 893 F. 2d 152, 156 (CA8 1989);
Smith v. Armontrout, 888 F. 2d 530, 545 (CA8 1989).
     Similarly, I do not share the Court's concern
that a standard broader than the eligibility
standard creates  a far more difficult task for
federal courts.  Ante, at 11.  As noted above, both
the  probably resulted standard and the  clearly
erroneous standard have long been applied by
federal courts in a variety of contexts.  More-
over, to the extent that the clearly erroneous
standard is more difficult to apply than the
Court's  eligibility test, I believe that that
cost is far outweighed by the importance of making
just decisions in the few cases that fit within
this narrow exception.  To my mind, any added
administrative burden is surely justified by the
overriding interest in minimizing the risk of error
in implementing the sovereign's decision to take
the life of one of its citizens.  As we observed in
Gardner v. Florida, 430 U. S. 349, 360 (1977),  if the
disputed matter is of critical importance, the
time invested in ascertaining the truth would
surely be well spent if it makes the difference
between life and death.
