author:
Chief Justice Rehnquist
      Justice Stevens, Justice Scalia,

text:
    BOUSLEY v. UNITED STATES
    No. 96-8516.
    Argued March 3, 1998
    Decided May 18, 1998

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Kennedy, Souter, Gxnsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 625. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 629.

      L. Marshall Smith, by appointment of the Court, 522 U. S. 946, argued the cause and filed briefs for petitioner.

      Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solid-

      tor General Waxman, Acting Assistant Attorney General Keeney, Roy W. McLeese III, and Vicki S. Marani.

      Thomas C. Walsh, by invitation of the Court, 522 U. S. 990, argued the cause as amicus curiae urging affirmance. With him on the brief was Brian C. Walsh.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Larry W. Yackle and Steven B. Shapiro; and for the National Association of Criminal Defense Lawyers et al. by Bonnie I. Bobin-Vergeer, David M. Porter, and Kyle O’Dowd.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Petitioner pleaded guilty to “using” a firearm in violation of 18 U. S. C. § 924(c)(1) in 1990. Five years later we held in Bailey v. United States, 516 U. S. 137, 144 (1995), that § 924(c)(1)’s “use” prong requires the Government to show “active employment of the firearm.” Petitioner meanwhile had sought collateral relief under 28 U. S. C. §2255, claiming that his guilty plea was not knowing and intelligent because he was misinformed by the District Court as to the nature of the charged crime. We hold that, although this claim was proeedurally defaulted, petitioner may be entitled to a hearing on the merits of it if he makes the necessary showing to relieve the default.

Following his arrest in March 1990, petitioner was charged with possession of methamphetamine with intent to distribute, in violation of 21 U. S. C. § 841(a)(1). A superseding indictment added the charge that he “knowingly and intentionally used . . . firearms during and in relation to a drug trafficking crime,” in violation of 18 U. S. C. § 924(c). App. 5-6. Petitioner agreed to plead guilty to both charges while reserving the right to challenge the quantity of drugs used in calculating his sentence. Id., at 10-12.

The District Court accepted petitioner’s pleas, finding that he was “competent to enter [the] pleas, that [they were] voluntarily entered, and that there [was] a factual basis for them.” Id., at 29-30. Following a sentencing hearing, the District Court sentenced petitioner to 78 months’ imprisonment on the drug count, a consecutive term of 60 months’ imprisonment on the § 924(c) count, and four years of supervised release. Id., at 83-84. Petitioner appealed his sentence, but did not challenge the validity of his plea. The Court of Appeals affirmed. 950 F. 2d 727 (CA8 1991).

In June 1994, petitioner sought a writ of habeas corpus under 28 U. S. C. §2241, challenging the factual basis for his guilty plea on the ground that neither the “evidence” nor the “plea allocution” showed a “connection between the firearms in the bedroom of the house, and the garage, where the drug trafficking occurred.” App. 109. A Magistrate Judge recommended that the petition be treated as a motion under 28 U. S. C. §2255 and recommended dismissal, concluding that there was a factual basis for petitioner’s guilty plea because the guns in petitioner’s bedroom were in close proximity to drugs and were readily accessible. App. 148-153. The District Court adopted the Magistrate Judge’s Report and Recommendation and ordered that the petition be dismissed. Id., at 154-155.

Petitioner appealed. While his appeal was pending, we held in Bailey that a conviction for use of a firearm under § 924(c)(1) requires the Government to show “active employment of the firearm.” 516 U. S., at 144. As we explained, active employment includes uses such as “brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire” the weapon, id., at 148, but does not include mere possession of a firearm, id., at 143. Thus, a “defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds,” or for “placement of a firearm to provide a sense of security or to embolden.” Id., at 149.

Following our decision in Bailey, the Court of Appeals appointed counsel to represent petitioner. Counsel argued that Bailey should be applied “retroactively,” that petitioner’s guilty plea was involuntary because he was misinformed about the elements of a § 924(c)(1) offense, that this claim was not waived by his guilty plea, and that his conviction should therefore be vacated. Nevertheless, the Court of Appeals affirmed the District Court’s order of dismissal. Bousley v. Brooks, 97 F. 3d 284 (CA8 1996).

We then granted certiorari, 521 U. S. 1152 (1997), to resolve a split among the Circuits over the permissibility of post -Bailey collateral attacks on § 924(e)(1) convictions obtained pursuant to guilty pleas. Because the Government disagreed with the Court of Appeals’ analysis, we appointed amicus curiae to brief and argue the case in support of the judgment below. 522 U. S. 990 (1997).

A plea of guilty is constitutionally valid only to the extent it is “voluntary” and “intelligent.” Brady v. United States, 397 U. S. 742, 748 (1970). We have long held that a plea does not qualify as intelligent unless a criminal defendant first receives “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Smith v. O’Grady, 312 U. S. 329, 334 (1941). Amicus contends that petitioner’s plea was intelligently made because, prior to pleading guilty, he was provided with a copy of his indictment, which charged him with “using” a firearm. Such circumstances, standing alone, give rise to a presumption that the defendant was informed of the nature of the charge against him. Henderson v. Morgan, 426 U. S. 637, 647 (1976); id., at 650 (White, J., concurring). Petitioner nonetheless maintains that his guilty plea was unintelligent because the District Court subsequently misinformed him as to the elements of a § 924(c)(1) offense. In other words, petitioner contends that the record reveals that neither he, nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged. Were this contention proved, petitioner’s plea would be, contrary to the view expressed by the Court of Appeals, constitutionally invalid.

Our decisions in Brady v. United States, supra, McMann v. Richardson, 397 U. S. 759 (1970), and Parker v. North Carolina, 397 U. S. 790 (1970), relied upon by amicus, are not to the contrary. Each of those cases involved a criminal defendant who pleaded guilty after being correctly informed as to the essential nature of the charge against him. See Brady, supra, at 756; McMann, supra, at 767; Parker, supra, at 792. Those defendants later attempted to challenge their guilty pleas when it became evident that they had misjudged the strength of the Government’s case or the penalties to which they were subject. For example, Brady, who pleaded guilty to kidnaping, maintained that his plea was neither voluntary nor intelligent because it was induced by a death penalty provision later held unconstitutional. 397 U. S., at 744. We rejected Brady’s voluntariness argument, explaining that a “plea of guilty entered by one fully aware of the direct consequences” of the plea is voluntary in a constitutional sense “unless induced by threats..., misrepresentation..., or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business.” Id., at 755 (internal quotation marks omitted). We further held that Brady’s plea was intelligent because, although later judicial decisions indicated that at the time of his plea he “did not correctly assess every relevant factor entering into his decision,” id., at 757, he was advised by competent counsel, was in control of his mental faculties, and “was made aware of the nature of the charge against him,” id., at 756. In this case, by contrast, petitioner asserts that he was misinformed as to the true nature of the charge against him.

Amicus urges us to apply the rule of Teague v. Lane, 489 U. S. 288 (1989), to petitioner’s claim that his plea was not knowing and intelligent. In Teague, we held that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced,” id., at 310, unless the new rule “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’ ” id., at 311 (quoting Mackey v. United States, 401 U. S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting in part)), or could be considered a “watershed rul[e] of criminal procedure,” 489 U. S., at 311. But we do not believe that Teague governs this case. The only constitutional claim made here is that petitioner’s guilty plea Was not knowing and intelligent. There is surely nothing new about this principle, enumerated as long ago as Smith v. O’Grady, supra. And because Teague by its terms applies only to procedural rules, we think it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress.

This distinction between substance and procedure is an important one in the habeas context. The Teague doctrine is founded on the notion that one of the “principal functions of habeas corpus [is] ‘to assure that no man has been incarcerated under' a procedure which creates an impermissibly large risk that the innocent will be convicted.’ ” 489 U. S., at 312 (quoting Desist v. United States, 394 U. S. 244, 262 (1969)). Consequently, unless a new rule of criminal procedure is of such a nature that “without [it] the likelihood of an accurate conviction is seriously diminished,” 489 U. S., at 313, there is no reason to apply the rule retroactively on habeas review. By contrast, decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct “‘beyond the power of the criminal law-making authority to proscribe,’ ” id., at 311 (quoting Mackey, supra, at 692), necessarily carry a significant risk that a defendant stands convicted of “an act that the law does not make criminal.” Davis v. United States, 417 U. S. 333, 346 (1974). For under our federal system it is only Congress, and not the courts, which can make conduct criminal. United States v. Lanier, 520 U. S. 259, 267-268, n. 6 (1997); United States v. Hudson, 7 Cranch 32 (1812). Accordingly, it would, be inconsistent with the doctrinal underpinnings of habeas review to preclude petitioner from relying on our decision in Bailey in support of his claim that his guilty plea was constitutionally invalid.

Though petitioner’s claim is not Teague-barred, there are nonetheless significant procedural hurdles to its consideration on the merits. We have strictly limited the circumstances under which a guilty plea may be attacked on collateral review. “It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” Mabry v. Johnson, 467 U. S. 504, 508 (1984) (footnote omitted). And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and “‘will not be allowed to do service for an appeal.’ ” Reed v. Farley, 512 U. S. 339, 354 (1994) (quoting Sunal v. Large, 332 U. S. 174, 178 (1947)). Indeed, “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” United States v. Timmreck, 441 U. S. 780, 784 (1979). In this ease, petitioner contested his sentence on appeal, but did not challenge the validity of his plea. In failing to do so, petitioner procedurally defaulted the claim he now presses on us.

In an effort to avoid this conclusion, petitioner contends that his claim falls within an exception to the procedural default rule for claims that could not be presented without further factual development. Brief for Petitioner 28-34. In Waley v. Johnston, 316 U. S. 101 (1942) (per curiam), we held that there was such an exception for a claim that a plea of guilty had been coerced by threats made by a Government agent, when the facts were “dehors the record and their effect on the judgment was not open to consideration and review on appeal.” Id., at 104. Petitioner’s claim, however, differs significantly from that advanced in Waley. He is not arguing that his guilty plea was involuntary because it was coerced, but rather that it was not intelligent because the information provided him by the District Court at his plea colloquy was erroneous. This type of claim can be fully and completely addressed on direct review based on the record created at the plea colloquy.

Where a defendant has proeedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either “cause” and actual “prejudice,” Murray v. Carrier, 477 U. S. 478, 485 (1986); Wainwright v. Sykes, 433 U. S. 72, 87 (1977), or that he is “actually innocent,” Murray, supra, at 496; Smith v. Murray, 477 U. S. 527, 537 (1986).

Petitioner offers two explanations for his default in an attempt to demonstrate cause. First, he argues that “the legal basis for his claim was not reasonably available to counsel” at the time his plea was entered. Brief for Petitioner 35. This argument is without merit. While we have held that a claim that “is so novel that its legal basis is not reasonably available to counsel” may constitute cause for a procedural default, Reed v. Ross, 468 U. S. 1, 16 (1984), petitioner’s claim does not qualify as such. The argument that it was error for the District Court to misinform petitioner as to the statutory elements of § 924(c)(1) was most surely not a novel one. See Henderson, 426 U. S., at 645-646. Indeed, at the time of petitioner’s plea, the Federal Reporters were replete with cases involving challenges to the notion that “use” is synonymous with mere “possession.” See, e. g., United States v. Cooper, 942 F. 2d 1200, 1206 (CA7 1991) (appeal from plea of guilty to “use” of a firearm in violation of § 924(e)(1)), cert. denied, 508 U. S. 923 (1992). Petitioner also contends that his default should be excused because, “before Bailey, any attempt to attack [his] guilty plea would have been futile.” Brief for Petitioner 35. This argument, too, is unavailing. As we clearly stated in Engle v. Isaac, 456 U. S. 107 (1982), “futility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.’” Id., at 130, n. 35. Therefore, petitioner is unable to- establish cause for his default.

Petitioner’s claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy “has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, supra, at 496. To establish actual innocence, petitioner must demonstrate that, “‘in light of all the evidence,’” “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U. S. 298, 327-328 (1995) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). The District Court failed to address petitioner’s actual innocence, perhaps because petitioner failed to raise it initially in his §2255 motion. However, the Government does not contend that petitioner waived this claim by failing to raise it below. Accordingly, we believe it appropriate to remand this ease to permit petitioner to attempt to make a showing of actual innocence.

It is important to note in this regard that “actual innocence” means factual innocence, not mere legal insufficiency. See Sawyer v. Whitley, 505 U. S. 333, 339 (1992). In other words, the Government is not limited to the existing record to rebut any showing that petitioner might make. Rather, on remand, the Government should be permitted to present any admissible evidence of petitioner’s guilt even if that evidence was not presented during petitioner’s plea colloquy and would not normally have been offered before our decision in Bailey. In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.

In this case, the Government maintains that petitioner must demonstrate that he is actually innocent of both “using” and “carrying” a firearm in violation of § 924(e)(1). But petitioner’s indictment charged him only with “using” firearms in violation of § 924(e)(1). App. 5-6. And there is no record evidence that the Government elected not to charge petitioner with “carrying” a firearm in exchange for his plea of guilty. Accordingly, petitioner need demonstrate no more than that he did not “use” a firearm as that term is defined in Bailey.

If, on remand, petitioner can make that showing, he will then be entitled to have his defaulted claim of an unintelligent plea considered on its merits. The judgment of the Court of Appeals is therefore reversed, and the ease is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

concurring in part and dissenting in part.

While I agree with the Court’s central holding and with its conclusion that none of its judge-made rules foreclose petitioner’s collateral attack on his conviction under 18 U. S. C. § 924(c), I believe there is a flaw in its analysis that will affect the proceedings on remand. Given the fact that the record now establishes that the plea of guilty to the § 924(c) charge was constitutionally invalid, petitioner remains presumptively innocent of that offense. Accordingly, unless he again pleads guilty, the burden is on the Government to prove his unlawful use of a firearm.

I

This case does not raise any question concerning the possible retroactive application of a new rule of law, cf. Teague v. Lane, 489 U. S. 288 (1989), because our decision in Bailey v. United States, 516 U. S. 137 (1995), did not change the law. It merely explained what § 924(c) had meant ever since the statute was enacted. The fact that a number of Courts of Appeals had construed the statute differently is of no greater legal significance than the fact that 42 U. S. C. § 1981 had been consistently misconstrued prior to our decision in Patterson v. McLean Credit Union, 491 U. S. 164 (1989). Our comment on the significance of the pr e-Patterson jurisprudence applies equally to the pr e-Bailey cases construing § 924(e):

“Patterson did not overrule any prior decision of this Court; rather, it held and therefore established that the prior decisions of the Courts of Appeals which read § 1981 to cover discriminatory contract termination were incorrect. They were not wrong according to some abstract standard of interpretive validity, but by the rules that necessarily govern our hierarchical federal court system. Cf. Brown v. Allen, 344 U. S. 443, 540 (1953) (Jackson, J., concurring in result). It is this Court’s responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law. A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 312-313 (1994).

Thus in 1990 when petitioner was advised by the trial judge, by his own lawyer, and by the prosecutor that mere possession of a firearm would support a conviction under § 924(c), he received critically incorrect legal advice. The fact that all of his advisers acted in good-faith reliance on existing precedent does not mitigate the impact of that erroneous advice. Its consequences for petitioner were just as severe, and just as unfair, as if the court and counsel had knowingly conspired to deceive him in order to induce him to plead guilty to a crime that he did not commit. Our cases make it perfectly clear that a guilty plea based on such misinformation is constitutionally invalid. Smith v. O’Grady, 312 U. S. 329, 334 (1941); Henderson v. Morgan, 426 U. S. 637, 644-645 (1976). Petitioner’s conviction and punishment on the § 924(c) charge “are'for an act that the law does not make criminal. There can be no room for doubt that such a circumstance ‘inherently results in a complete miscarriage of justice’ and ‘presentís] exceptional circumstances’ that justify collateral relief under [28 U. S. C.] § 2255.” Davis v. United States, 417 U. S. 333, 346-347 (1974).

II

The Government charges petitioner with “procedural default” because he did not challenge his guilty plea on direct appeal. The Court accepts this argument and therefore places the burden on petitioner to demonstrate either “cause and prejudice” or “actual innocence.” See ante, at 622. Yet the Court cites no authority for its conclusion that “even the voluntariness and intelligence of a guilty plea can he attacked on collateral review only if first challenged on direct review.” Ante, at 621. Moreover, the primary case upon which the Government relies, United States v. Timmreck, 441 U. S. 780 (1979), actually supports the contrary proposition: that a constitutionally invalid guilty plea may be set aside on collateral attack whether or not it was challenged on appeal.

Several years before we decided Timmreck, the Court had held that it is reversible error for a trial judge to accept a guilty plea without following the procedures dictated by Rule 11 of the Federal Rules of Criminal Procedure. McCarthy v. United States, 394 U. S. 459 (1969). The question in Timmreck was whether such an error was sufficiently serious to support a collateral attack under 28 U. S. C. §2255. Because the error was neither jurisdictional nor constitutional, we held that collateral relief was unavailable. If we had thought that the failure to challenge the constitutionality of a guilty plea on direct appeal amounted to procedural default, there would have been no need in Timmreck to rely on the critical difference between reversible error and the more fundamental kind of error that can be corrected on collateral review. The opinion makes it clear that an ordinary Rule 11 violation must be challenged on appeal; the only criterion for collateral review that it mentions is that the error must be jurisdictional or constitutional.

Decisions of this Court that do not involve guilty pleas are not conti’olling. For example, in United States v. Frady, 456 U. S. 152 (1982), two of the Court’s reasons for dismissing the § 2255 claim alleging that the jury instructions were erroneous are not present in this case. First, the defendant failed to object to the jury instructions — as required by Federal Rule of Criminal Procedure 30 — before the jury retired to consider its verdict; no comparable Rule applies to petitioner’s claim. Second, as the Court emphasized by quoting from both United States v. Addonizio, 442 U. S. 178, 184-185 (1979), and Henderson v. Kibbe, 431 U. S. 145, 154 (1977), the prejudice to the defendant was not sufficient to warrant relief undér § 2255; that is plainly not the case with respect to this petitioner. Similarly, in Davis v. United States, 411 U. S. 233, 242 (1973), there was a failure to comply with Federal Rule of Criminal Procedure 12(b)(2), which required challenges to the composition of the grand jury to be made by pretrial motion — a Rule that has no counterpart in the guilty plea context — coupled with the absence of the kind of prejudice that is present here.

The Court has never held that the constitutionality of a guilty plea cannot be attacked collaterally unless it is first challenged on direct review. Moreover, as the facts of this case demonstrate, such a holding would be unwise and would defeat the very purpose of collateral review. A layman who justifiably relied on incorrect advice from the court and counsel in deciding to plead guilty to a crime that he did not commit will ordinarily continue to assume that such advice was accurate during the time for taking an appeal. The injustice of his conviction is not mitigated by the passage of time. His plea should be treated as a nullity and the conviction based on such a plea should be voided.

Because the record in this case already unambiguously demonstrates that petitioner’s plea to the § 924(c) charge is invalid as a matter of constitutional law, I would remand with directions to vacate his § 924(e) conviction and allow him to plead anew. - •

Justice Scalia,

with whom Justice Thomas joins, dissenting.

I agree with the Court that petitioner has not demonstrated “cause” for failing to challenge the validity of his guilty plea on direct review. I disagree, however, that a defendant who has pleaded guilty can be given the opportunity to avoid the consequences of his inexcusable procedural default by having the courts inquire into whether “ ‘it is more likely than not that no reasonable juror would have convicted him’” of the offense to which he pleaded guilty. Ante, at 623, quoting Schlup v. Delo, 513 U. S. 298, 327-328 (1995).

No criminal-law system can function without rules of procedure conjoined with a rule of finality. Evidence not introduced, or objections not made, at the appropriate time cannot be brought forward to reopen the conviction after judgment has been rendered. In the United States, we have developed generous exceptions to the rule of finality, one of which permits reopening, via habeas corpus, when the petitioner shows “cause” excusing the procedural default, and “actual prejudice” resulting from the alleged error. United States v. Frady, 456 U. S. 152, 167-168 (1982). We have gone even beyond that generous exception in a certain class of cases: cases that have actually gone to trial. There we have held that, “even in the absence of a showing of cause for the procedural default,” habeas corpus will be granted “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlwp v. Delo, supra, at 321 (internal quotation marks omitted). In every one of our cases that has considered the possibility of applying this so-called actual-innocence exception, a defendant had asked a habeas court to adjudicate a successive or proeedurally defaulted constitutional claim after his conviction by a jury. See Kuhlmann v. Wilson, 477 U. S. 436, 441, 452 (1986) (opinion of Powell, J.); Murray v. Carrier, 477 U. S. 478, 482, 495-496 (1986); Smith v. Murray, 477 U. S. 527, 529, 537-538 (1986); McCleskey v. Zant, 499 U. S. 467, 471, 502 (1991); Sawyer v. Whitley, 505 U. S. 333, 336-337, 339-340 (1992); Schlup, supra, at 305, 317-332.

There are good reasons for this limitation: First and foremost, it is feasible to make an accurate assessment of “actual innocence” when a trial has been had. In Schlup, for example, we said that to sustain an “actual innocence” claim the petitioner must “show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 513 U. S., at 327 (emphasis added). That “new evidence” was to be evaluated, of course, along with the “old evidence,” consisting of the transcript of the trial. The habeas court was to “make its determination concerning the petitioner’s innocence in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.” Id., at 328 (internal quotation marks omitted). As the Court’s opinion today makes clear, ante, at 624, the Government is permitted to supplement the trial record with any additional evidence of guilt, but the court begins with (and ordinarily ends with) a complete trial transcript to rely upon. But how is the court to determine “actual innocence” upon our remand in the present case, where conviction was based upon an admission of guilt? Presumably the defendant will introduce evidence (perhaps nothing more than his own testimony) showing that he did not “use” a firearm in committing the crime to which he pleaded guilty, and the Government, eight years after the fact, will have to find and produce witnesses saying that he did. This seems to me not to remedy a miscarriage of justice, but to produce one.

Second, the Court has given as one of its justifications for the super-generous miscarriage-of-justiee exception to inexcusable default, “the fact that habeas eoi’pus petitions that advance a substantial claim of actual innocence are extremely rare.” Schlup, supra, at 321. That may be true enough of petitions challenging jury convictions; it assuredly will not be true of petitions challenging the “voluntariness” of guilty pleas. I put “voluntariness” in quotation marks, because we are not dealing here with only coerced confessions, which may indeed be rare enough. The present ease is here because, in Henderson v. Morgan, 426 U. S. 637, 644-646 (1976), this Court held that where neither the indictment, defense counsel, nor the trial court explained to the defendant that intent to kill was an element of second-degree murder, his plea to that offense was “involuntary.” A plea, the Court explained, can “not be voluntary in the sense that it constitute^] an intelligent admission that he committed the offense unless the defendant receivefs] ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’” Id., at 645, quoting Smith v. O’Grady, 312 U. S. 329, 334 (1941). Of course the word “voluntary” had never been used (by precise speakers, at least) in that sense — in the sense of “intelligent” — and what the Henderson line of cases did was, by sleight-of-tongue, to obliterate the distinction between involuntary confessions and misinformed or even uninformed confessions. Once all those categories have been lumped together, the cases within them are not at all rare, but indeed exceedingly numerous.

It is well established that “when this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 313, n. 12 (1994). Thus, every time this Court resolves a Circuit split regarding the elements of a crime defined in a federal statute, most, if not all, defendants who pleaded guilty in those Circuits on the losing end of the split will have confessed “involuntarily,” having been advised by the court, or by their counsel, that the law was what (as it turns out) it was not — or even (since this would suffice for application of Henderson) merely not having been advised that the law was what (as it turns out) it was. Indeed the latter basis for “involuntariness” (mere lack of “ ‘real notice of the true nature of the charge against him/ ” Henderson, supra, at 645) might be available even to those defendants pleading guilty in the Circuits on the winning side of the split. Thus, our decision in Bailey v. United States, 516 U. S. 137 (1995), has generated a flood of 28 U. S. C. §2255 habeas petitions, each asserting actual innocence of “using” a firearm in violation of 18 U. S. C. § 924(c). This Term, we will resolve a Circuit split over the meaning of another element (“carry” a firearm) in the same statute. See Muscarello v. United States, No. 96-1654; Cleveland v. United States, No. 96-8837. And we will also resolve Circuit splits over the requisite elements of five other federal criminal statutes. See Salinas v. United States, 522 U. S. 52 (1997) (18 U. S. C. § 666(a)(1)(B)); Brogan v. United States, 522 U.S. 398 (1998) (18 U.S.C. §1001); Bates v. United States, 522 U.S. 23 (1997) (20 U.S.C. § 1097(a)); Bryan v. United States, No. 96-8422 (18 U. S. C. § 922(a)(1)(A)); Caron v. United States, No. 97-6270 (18 U.S.C. §921(a)(20)).

To the undeniable fact that the claim of “actual innocence” is mueh more likely to be available in guilty-plea cases than in jury-trial eases, there must be added the further undeniable fact that guilty-plea cases are very much more numerous than jury-trial cases. Last year, 51,647 of the 55,648 defendants convicted and sentenced in federal court (or nearly 93 percent) pleaded guilty. Administrative Office of the United States Courts, L. Meeham, Judicial Business of the United States Courts: 1997 Report of the Director 214.

When all these factors are taken into account, it could not be clearer that the premise for our adoption in Schlup of the super-generous “miscarriage of justice” exception to normal finality rules — viz., that the cases in which defendants seek to invoke the exception would be “extremely rare” — is simply not true when the exception is extended to guilty pleas. To the contrary, the cases will be extremely frequent, placing upon the criminal-justice system a burden it will be unable to bear — especially in light of the fact, discussed earlier, that on remand the habeas trial court will not have any trial record on the basis of which to make the “actual innocence” determination.

Not only does the disposition agreed upon today overload the criminal-justice system; it makes relief available where equity demands that relief be denied. When a defendant pleads guilty, he waives his right to have a jury make the requisite findings of guilt — typically in exchange for a lighter sentence or reduced charges. Thus, defendants plead guilty to charges that have not been proved — that perhaps could not be proved — in order to avoid conviction on charges of which they are “actually guilty,” which carry a harsher penalty. Under today’s holding, a defendant who is the “wheel-man” in a bank robbery in which a person is shot and killed, and who pleads guilty in state court to the offense of voluntary manslaughter in order to avoid trial on felony-murder charges, is entitled to federal habeas review of his contention that his guilty plea was “involuntary” because he was not advised that intent to kill was an element of the manslaughter offense, and that he was “actually innocent” of manslaughter because he had no intent to MU. In such a case, it is excusing the petitioner from his procedural default, not holding him to it, that would be the miscarriage of justice.

The Court evidently seeks to avoid this absurd consequence by prescribing that the defendant’s “showing of actual innocence must also extend” to any charge the Government has “forgone,” ante, at 624. This is not even a fully satisfactory solution in theory, since it assumes that the “forgone” charge is identifiable. If, as is often the case, the bargaining occurred before the charge was filed (“charge-bargaining” instead of “plea-bargaining”), it will almost surely not be identifiable. And of course in practical terms, the solution is no solution at all. To avoid the patent inequity, the Government wfil be called upon to refute, without any factual record to rely upon, not only the defendant’s testimony of his innocence on the charge of conviction, but his testimony of innocence on the “forgone” charge as weU — and as to the second, even the finding of “factual basis” required in federal courts, see n., supra, will not exist. But even if rebuttal evidence existed, it is a bizarre waste of judicial resources to require minitrials on charges made in dusty indictments (or indeed, if they could be identified, on charges never made), just to determine whether the defendant can litigate a procedurally defaulted challenge to a guilty plea on a different offense. Rube Goldberg would envy the scheme the Court has created.

* * *

It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of “actual innocence” will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault. But of course we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could. The “actual innocence” exception this Court has invoked to overcome inexcusable procedural default in cases decided by a jury "seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary ease.” Schlup, 513 U. S., at 324. Since the balance struck there simply does not obtain in the guilty-plea context, today’s decision is not a logical extension of Schlup, and it is a grave mistake. For these reasons, I respectfully dissent.

       See United States v. Carter, 117 F. 3d 262 (CA5 1997); Lee v. United States, 113 F. 3d 73 (CA7 1997); United States v. Barnhardt, 93 F. 3d 706 (CA10 1996); In re Hanserd, 123 F. 3d 922 (CA6 1997).

       Even were we to conclude that petitioner’s counsel was unaware at the time that petitioner’s plea colloquy was constitutionally deficient, “[w]here the basis of a .. . claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default.” Engle v. Isaac, 456 U. S. 107, 134 (1982).

       Justice Scalia contends that this factual innocence inquiry will be unduly complicated by the absence of a trial transcript in the guilty plea context. Post, at 631 (dissenting opinion). We think his concerns are overstated. In the federal system, where this case arose, guilty pleas must be accompanied by proffers, recorded verbatim on the record, demonstrating a factual basis for the plea. See Fed. Rules Crim. Proc. 11(f), (g).

       The Court does cite Reed v. Farley, 512 U. S. 339, 354 (1994), for the general proposition that habeas review “ ‘will not be allowed to do service for an appeal.’ ” Reed is inapposite, however, as it involved neither a constitutional violation nor a guilty plea. In Reed, the Court rejected a state prisoner's statutory claim brought under 28 U. S. C. § 2254 on the grounds that the prisoner had neither made a timely objection nor suffered prejudice. See 512 U. S., at 349 (“An unwitting judicial slip of the kind involved here ranks with the nonconstitutional lapses we have held not cognizable in a posteonviction proceeding”).

       As we explained: “In Hill v. United States, 368 U. S. 424, the Court was presented with the question whether a collateral attack under § 2255 could be predicated on a violation of Fed. Rule Crim. Proc. 32(a), which gives the defendant the right to make a statement on his own behalf before he is sentenced. The Court rejected the claim, stating: ‘The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognisable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure_’ 368 U. S., at 428.” United States v. Timmreck, 441 U. S. 780, 783 (1979). The Timmreck Court went on to hold that “[t]he reasoning in Hill is equally applicable to a formal violation of Rule 11” because “(s]uch a violation is neither constitutional nor jurisdictional,” and the error did not “resul[t] in a ‘complete miscarriage of justice’ or in a proceeding “inconsistent with the rudimentary demands of fair procedure.’ Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the Rule.” Id., at 783-784.

       The Court believes these concerns are overstated because, in the federal system, the court must be satisfied that there is a factual basis for the plea. See ante, at 624, n. 3. This displays a sad lack of solicitude for state courts, which handle the overwhelming majority of criminal eases. But even in the federal system, the “factual basis” requirement will typically be of no use. Consider the factual basis for the guilty plea in the present ease, as set forth in the plea agreement:
      “The parties... agree that, on or about March 19, 1990,... the defendant knowingly used firearms during and in relation to a drug-trafficking offense .... The following firearms were found in the defendant's bedroom near the 6.9 grams of methamphetamine: a loaded Walther PBK .380 caliber handgun, serial number A016494; and a loaded .22 caliber Advantage Arms 4-shot revolver. The defendant admits ownership and possession of these two guns. This conduct constituted a violation of Title 18, United States Code, Section 924(c). Three other firearms were found in the two briefcases containing the bulk of the methamphetamine: a loaded .22 caliber North American Arms handgun, serial number C7854; a loaded .45 caliber Colt Model 1911 semiautomatic handgun, serial number 244682; an unloaded Ruger .357 caliber revolver, serial number 151-36099. The defendant denies knowledge of these guns.” App. 8.
      Of course “knowingly used” in this statement presumably means “knowingly used” in the erroneous sense that prompts this litigation. And that will almost always be the situation where the “involuntariness” of the plea is a consequence of subsequently clarified uncertainty in the law: The factual basis will not include a fact which, by hypothesis, the court and the parties think irrelevant.


source: Caselaw Access Project

author: CHIEF Justice Rehnquist Justice Scalia, Justice Thomas,

license: Public Domain

text:
    STEWART, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTION, et al. v. MARTINEZ-VILLAREAL
    No. 97-300.
    Argued February 25, 1998
    Decided May 18, 1998

      Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 646. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 648.

      Bruce M. Ferg, Assistant Attorney General of Arizona, argued the cause for petitioners. With him on the briefs were Grant Woods, Attorney General, pro se, and Paul J. McMurdie.

      Denise I. Young argued the cause for respondent. With her on the brief were Paul Bender, Sean D. O’Brien, Fredric F. Kay, and Dale A. Baich

      Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Dimgren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Dane R. Gillette, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, and Emilio Eugene Varanini IV, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, M. Jane Brady of Delaware, Alan G. Lance of Idaho, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Mazwrek of Montana, Don Stenberg of Nebraska, Frankie S. Del Papa of Nevada, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Betty Montgomery of Ohio, Drew Edmondson of Oklahoma, Hardy Meyers of Oregon, Mark Barnett of South Dakota, Dan Morales of Texas, Jan Graham of Utah, and William U. Hill of Wyoming; and for the Criminal Justice Legal Foundation by Kent Scheidegger and Charles L. Hobson.

      Briefs of amici curiae urging affirmance were filed for the American Bar Association by Jerome J. Shestack, Jerold S. Solovy, Barry Leven-stam, and C. John Koch; for the American Gvil Liberties Union by Larry W. Yackle and Steven R. Shapiro; for the National Association of Criminal Defense Lawyers by Edward M. Chikofsky, Mark E. Olive, and David M. Porter; and for the United Mexican States et al. by John P. Frank and José A Cardenas.

   CHIEF Justice Rehnquist

delivered the opinion of the Court.

In Ford v. Wainwright, 477 U. S. 399, 410 (1986), we held that “the Eighth Amendment prohibits a State from inflicting the penalty of death upon a prisoner who is insane.” In this case, we must decide whether respondent Martinez-VillareaPs Ford claim is subject to the restrictions on “second or successive” applications for federal habeas relief found in the newly revised 28 U. S. C. § 2244 (1994 ed., Supp. II). We conclude that it is not.

Respondent was convicted on two counts of first-degree murder and sentenced to death. He unsuccessfully challenged his conviction and sentence on direct appeal in the Arizona state courts. Arizona v. Martinez-Villareal, 145 Ariz. 441, 702 P. 2d 670, cert. denied, 474 U. S. 975 (1985). He then filed a series of petitions for habeas relief in state court, all of which were denied. He also filed three petitions for habeas relief in federal court, all of which were dismissed on the ground that they contained claims on which the state remedies had not yet been exhausted.

In March 1993, respondent filed a fourth habeas petition in federal court. In addition to raising other claims, respondent asserted that he was incompetent to be executed. Counsel for the State urged the District Court to dismiss respondent’s Ford claim as premature. The court did so but granted the writ on other grounds. The Court of Appeals for the Ninth Circuit reversed the District Court’s granting of the writ but explained that its instruction to enter judgment denying the petition was not intended to affect any later litigation of the Ford claim. Martinez-Villareal v. Lewis, 80 F. 3d 1301, 1309, n. 1 (1996).

On remand to the District Court, respondent, fearing that the newly enacted Antiterrorism and Effective Death Penalty Act (AEDPA) might foreclose review of his Ford claim, moved the court to reopen his earlier petition. In March 1997, the District Court denied the motion and reassured respondent that it had “ ‘no intention of treating the [Ford] claim as a successive petition.’” 118 F. 3d 628, 630 (CA9 1997). Shortly thereafter, the State obtained a warrant for respondent’s execution. Proceedings were then held in the Arizona Superior Court on respondent’s mental condition. That court concluded that respondent was fit to be executed. The Arizona Supreme Court rejected his appeal of that decision.

Respondent then moved in the Federal District Court to reopen his Ford claim. He challenged both the conclusions reached and the procedures employed by the Arizona state courts. Petitioners responded that under AEDPA, the court lacked jurisdiction. The District Court agreed with petitioners, ruling on May 16,1997, that it did not have jurisdiction over the claim. Respondent then moved in the Court of Appeals for permission to file a successive habeas corpus application. § 2244(b)(3).

The Court of Appeals stayed respondent’s execution so that it could consider his request. It later held that § 2244(b) did not apply to a petition that raises only a competency to be executed claim and that respondent did not, therefore, need authorization to file the petition in the District Court. It accordingly transferred the petition that had been presented to a member of that court back to the District Court. 118 F. 3d, at 634-635.

We granted certiorari, 522 U. S. 912 (1997), to resolve an apparent conflict between the Ninth Circuit and the Eleventh Circuit on this important question of federal law. See, e. g., In re Medina, 109 F. 3d 1556 (CA11 1996).

Before reaching the question presented, however, we must first decide whether we have jurisdiction over this case. In AEDPA, Congress established a “gatekeeping” mechanism for the consideration of “second or successive habeas corpus applications” in the federal courts. Felker v. Turpin, 518 U. S. 651, 657 (1996); § 2244(b). An individual seeking to file a “second or successive” application must move in the appropriate court of appeals for an order directing the district court to consider his application. § 2244(b)(3)(A). The court of appeals then has 30 days to decide whether to grant the authorization to file. § 2244(b)(3)(D). A court of appeals’ decision whether to grant authorization “to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” § 2244(b)(3)(E).

If the Court of Appeals in this case had granted respondent leave to file a second or successive application, then we would be without jurisdiction to consider petitioners’ petition and would have to dismiss the writ. This is not, however, what the Court of Appeals did. The Court of Appeals held that the § 2244(b) restrictions simply do not apply to respondent’s Ford claim, and that there was accordingly no need for him to apply for authorization to file a second or successive petition. We conclude today that the Court of Appeals reached the correct result in this case, and that we therefore have jurisdiction to consider petitioners’ petition.

Section 2244(b) provides:

“(b)(1) A claim presented in a second or successive ha-beas corpus application under section 2254 that was presented in a prior application shall be dismissed.
“(2) A claim presented in a second or successive ha-beas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
“(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
“(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
“(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.”

If respondent’s current request for relief is a “second or successive” application, then it plainly should have been dismissed. The Ford claim had previously been presented in the 1993 petition, and would therefore be subject to dismissal under subsection (b)(1). Even if we were to consider the Ford claim to be newly presented in the 1997 petition, it does not fit within either of subsection (b)(2)’s exceptions, and dismissal would still be required.

Petitioners contend that because respondent has already-had one “folly-litigated habeas petition, the plain meaning of § 2244(b) as amended requires his new petition to be treated as successive.” Brief for Petitioners 12. Under that reading of the statute, respondent is entitled to only one merits judgment on his federal habeas claims. Because respondent has already presented a petition to the District Court, and the District Court and the Court of Appeals have acted on that petition, § 2244(b) must apply to any subsequent request for federal habeas relief.

But the only claim on which respondent now seeks relief is the Ford claim that he presented to the District Court, along with a series of other claims, in 1993. The District Court, acting for the first time on the merits of any of respondent’s claims for federal habeas relief, dismissed the Ford claim as premature, but resolved all of respondent’s other claims, granting relief on one. The Court of Appeals subsequently reversed the District Court’s grant of relief. At that point it became clear that respondent would have no federal habeas relief for his conviction or his death sentence, and the Arizona Supreme Court issued a warrant for his execution. His claim then unquestionably ripe, respondent moved in the state courts for a determination of his competency to be executed. Those courts concluded that he was competent, and respondent moved in the Federal District Court for review of the state court’s determination.

This may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b). There was only one application for habeas relief, and the District Court ruled (or should have ruled) on each claim at the time it became ripe. Respondent was entitled to an adjudication of all of the claims presented in his earlier, undoubtedly reviewable, application for federal habeas relief. The Court of Appeals was therefore correct in holding that respondent was not required to get authorization to file a “second or successive” application before his Ford claim could be heard.

If petitioners’ interpretation of “second or successive” were correct, the implications for habeas practice would be far reaching and seemingly perverse. In Picard v. Connor, 404 U. S. 270, 275 (1971), we said:

“It has been settled since Ex parte Royall, 117 U. S. 241 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. . . . The exhaustion-of-state-remedies doctrine, now codified in the federal habeas statute, 28 U. S. C. §§ 2254(b) and (e), reflects a policy of federal-state comity.... It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.”

Later, in Rose v. Lundy, 455 U. S. 509, 522 (1982), we went further and held that “a district court must dismiss ha-beas petitions containing both unexhausted and exhausted claims.” But none of our eases expounding this doctrine have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims trader the same standard as would govern those made in any other first petition.

We believe that respondent’s Ford claim here — previously dismissed as premature — should be treated in the same manner as the claim of a petitioner who returns to a federal ha-beas court after exhausting state remedies. True, the eases are not identical; respondent’s Ford claim was dismissed as premature, not because he had not exhausted state remedies, but because his execution was not imminent and therefore his competency to be executed could not be determined at that time. But in both situations, the habeas petitioner does not receive an adjudication of his claim. To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review. See, e.g., United States ex rel. Barnes v. Gilmore, 968 F. Supp. 384, 385 (ND Ill. 1997) (“If Barnes continues in his nonpayment of the required $5 filing fee . . . this Court will be constrained to dismiss his petition”); Marsh v. United States District Court for the Northern District of California, 1995 WL 23942 (ND Cal., Jan. 9, 1995) (“Because petitioner has since not paid the filing fee nor submitted a signed affidavit of poverty, the petition for writ of habeas corpus is dismissed without prejudice”); Taylor v. Mendoza, 1994 WL 698493 (ND Ill., Dec. 12,1994).

Petitioners place great reliance on our decision in Felker v. Turpin, 518 U. S. 651 (1996), but we think that reliance is misplaced. In Felker we stated that the “new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what used to be called in habeas corpus practice ‘abuse of the writ.’ ” Id., at 664. It is certain that respondent’s Ford claim would not be barred under any form of res judicata. Respondent brought his claim in a timely fashion, and it has not been ripe for resolution until now.

Thus, respondent’s Ford claim was not a “second or successive” petition under § 2244(b) and we have jurisdiction to review the judgment of the Court of Appeals on petitioners’ petition for certiorari. But for the same reasons that we find we have jurisdiction, we hold that the Court of Appeals was correct in deciding that respondent was entitled to a hearing on the merits of his Ford claim in the District Court. The judgment of the Court of Appeals is therefore

Affirmed.

Justice Scalia,

with whom Justice Thomas joins, dissenting.

It is axiomatic that “the power to award the writ [of ha-beas corpus] by any of the courts of the United States, must be given by written law.” Ex parte Bollman, 4 Cranch 75, 94 (1807) (opinion of Marshall, C. J.). And it is impossible to conceive of language that more clearly precludes respondent’s renewed competency-to-be-exeeuted claim than the written law before us here: a “claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.” 28 U. S. C. § 2244(b)(1) (1994 ed., Supp. II) (emphasis added). The Court today flouts the unmistakable language of the statute to avoid what it calls a “perverse” result. Ante, at 644. There is nothing “perverse” about the result that the statute commands, except that it contradicts pre-existing judge-made law, which it was precisely the purpose of the statute to change.

Respondent received a full hearing on his competency-to-be-executed claim in state court. The state court appointed experts and held a 4-day evidentiary hearing, after which it found respondent “aware that he is to be punished for the crime of murder and . . . aware that the impending punishment for that crime is death . . ..” App. 172. Respondent appealed this determination to the Supreme Court of Arizona, which accepted jurisdiction and denied relief. He sought certiorari of that denial in this Court, which also denied relief. To say that it is “perverse” to deny respondent a second round of time-consuming lower-federal-court review of his conviction and sentence — because that means forgoing lower-federal-court review of a competency-to-be-executed claim that arises only after he has already sought federal habeas on other issues — is to say that state-court determinations must always be reviewable, not merely by this Court, but by federal ¿strict courts. That is indeed the principle that this Court’s imaginative habeas-corpus jurisprudence had established, but it is not a principle of natural law. Lest we forget, Congress did not even have to create inferior federal courts, U. S. Const., Art. I, § 8, cl. 9; Art. III, §1, let alone invest them with plenary habeas jurisdiction over state convictions. And for much of our history, as Justice Thomas points out, post, at 652, prisoners convicted by validly constituted courts of general criminal jurisdiction had no recourse to habeas corpus relief at all. See Wright v. West, 505 U. S. 277, 285-286 (1992) (opinion of Thomas, J.).

It seems to me much further removed from the “perverse” to deny second-time collateral federal review than it is to treat state-court proceedings as nothing more than a procedural prelude to lower-federal-eourt review of state supreme-court determinations. The latter was the regime that our habeas jurisprudence established and that the Anti-terrorism and Effective Death Penalty Act (AEDPA) intentionally revised — to require extraordinary showings before a state prisoner can take a second trip around the extended distriet-court-to-Supreme-Court federal track. It is wrong for us to reshape that revision on the very lathe of judge-made habeas jurisprudence it was designed to repair.

Today’s opinion resembles nothing so much as the cases of the 1920’s that effectively decided that the Clayton Act, designed to eliminate federal-court injunctions against union strikes and picketing, “restrained the federal courts from nothing that was previously proper.” T. Powell, The Supreme Court’s Control Over the Issue of Injunctions in Labor Disputes, 13 Acad. Pol. Sci. Proc. 37, 74 (1928). In criticizing those eases as examples of Gefiihlsjurisprudenz (and in insisting upon “the necessity of preferring . . . the Gefiihl of the legislator to the Gefiihl of the judge”), Dean Landis recalled Dicey’s trenchant observation that “ ‘judge-made law occasionally represents the opinion of the day before yesterday/ ” Landis, A Note on "Statutory Interpretation,” 43 Harv. L. Rev. 886, 888 (1930), quoting A. Dicey, Law and Opinion in England 869 (1926). As hard as it may be for this Court to swallow, in yesterday’s enactment of AEDPA Congress curbed our prodigality with the Great Writ. The words that Landis applied to the Clayton Act fit very nicely the statute that emerges from the Court’s decision in the present case: “The mutilated [AEDPA] bears ample testimony to the fday before yesterday* that judges insist is today.” 43 Harv. L. Rev., at 892. I dissent.

Justice Thomas,

with whom Justice Scalia joins, dissenting.

From 1986 to 1991, respondent filed three petitions for federal habeas relief; each was dismissed on the ground that respondent had not yet exhausted his state remedies. In March 1993, respondent filed his fourth federal habeas petition presenting, inter alia, his claim under Ford v. Wainwright, 477 U. S. 399 (1986), that he was not competent to be executed. Finding that some of respondent’s claims were procedurally defaulted, that others were without merit, and that respondent’s Ford claim was not ripe for decision, the Court of Appeals held that the fourth petition should be denied. In May 1997, after the Arizona state courts rejected his Ford claim, respondent returned for a fifth time to federal court, again arguing that he was in competent to be executed. Because this filing was a “second or successive ha-beas corpus application,” respondent’s Ford claim should have been dismissed. I therefore respectfully dissent.

Unlike the Court, I begin with the plain language of the statute. Section 2244(b)(1) provides that a “claim presented in a second or successive habeas corpus application ... that was presented in a prior application shall be dismissed.” 28 U. S. C. § 2244(b)(1) (1994 ed., Supp. II). An “application” is a “putting to, placing before, preferring a request or petition to or before a person. The act of making a request for something.” Black’s Law Dictionary 98-99 (6th ed. 1990); see also Webster’s Ninth New Collegiate Dictionary 97 (1991) (application is a “request, petition... a form used in making a request”). Respondent’s March 1993 federal habeas petition was clearly a habeas “application” (the Court concedes as much), because it placed before the District Court respondent’s request for a writ of habeas corpus. Once this application was denied, however, none of respondent’s claims for relief — including his claim that he was incompetent to be executed — remained before the Court. It was thus necessary for respondent to file a new request for habeas relief so that his Ford claim would again be “pu[t] to” or “plac[ed] before” the District Court. (The Court certainly did not raise respondent’s Ford claim sua sponte.) Respondent’s May 1997 request for relief was therefore a habeas application distinct from his earlier requests for relief, and it was thus undoubtedly “second or successive.”

Respondent’s Ford claim was also “presented” in both his March 1993 and his May 1997 habeas applications. To “present” is “to bring or introduce into the presence of someone” or “to lay (as a charge) before a court as an object of inquiry.” Webster’s Ninth New Collegiate Dictionary 930 (1991). Respondent clearly “presented” his Ford claim in both his 1993 and his 1997 habeas applications, for in each he introduced to the District Court his argument that he is not competent to be executed. Under the plain meaning of the statute, therefore, respondent’s Ford claim was a “claim presented in a second or successive habeas corpus application... that was presented in a prior application.” § 2244(b)(1).

The reasons offered by the Court for disregarding the plain language of the statute are unpersuasive. Conceding that “[t]his may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim,” ante, at 643, the Court nevertheless concludes that respondent has really filed only “one application for habeas relief,” ibid, (emphasis added). The District Court, however, did not hold respondent’s Ford claim in abeyance when it denied his March 1998 habeas petition, so that claim was no longer before the District Court in May 1997. At best, then, respondent’s May 1997 filing was an effort to reopen his Ford claim. But that filing (which is most definitely an “application”) is subject to the statutory requirements for second or successive habeas applications. As we have recently stated in a closely related context:

“[A] prisoner’s motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, § 2244(b)(1), or the bar against litigation of claims not presented in a prior application, § 2244(b)(2).” Calderon v. Thompson, ante, at 553.

In just the same way, habeas petitioners cannot be permitted to evade § 2244(b)’s prohibitions simply by moving to reopen claims already presented in a prior habeas application.

The Court also reasons that respondent’s “Ford claim here — previously dismissed as premature — should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies,” for “in both situations, the habeas petitioner does not receive an adjudication of his claim.” Ante, at 644, 645. Implicit in the Court’s reasoning is its assumption that a prisoner whose habeas petition has been dismissed for failure to exhaust state remedies, and who then exhausts those remedies and returns to federal court, has not then filed a “second or successive habeas corpus application.” § 2244(b)(1). To be sure, “none of our cases . . . ha[s] ever suggested” that a prisoner in such a situation was filing a successive petition. See ante, at 644. But that is because, before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1218, a federal court could grant relief on a claim in a second or successive application so long as the ground for relief had not already been “presented and determined,” 28 U. S. C. §2244(a) (emphasis added), or “adjudicated,” § 2244(b), in a previous application. Claims presented in a petition dismissed for failure to exhaust are neither “determined” nor “adjudicated.” Thus, the pre-AEDPA practice of permitting petitioners to raise claims already presented in applications dismissed for failure to exhaust says nothing about whether those later applications were considered second or successive.

Even if the Court were correct that such an application would not have been considered second or successive, such a ease is altogether different from this case, in which only one of many claims was not adjudicated. In the former situation, the federal court dismisses the unexhausted petition without prejudice, see Rose v. Lundy, 455 U. S. 509, 520-522 (1982), so it could be argued that the petition should be treated as if it had never been filed. In contrast, when a court addresses a petition and adjudicates some of the claims presented in it, that petition is certainly an “application,” and any future application must be “second or successive.” Otherwise, the court would have adjudicated the merits of claims that had not been presented in an “application.”

Ultimately, the Court’s holding is driven by what it sees as the “far reaching and seemingly perverse” implications for federal habeas practice of a literal reading of the statute. Ante, at 644. Such concerns are not, in my view, sufficient to override the statute’s plain meaning. And to the extent concerns about habeas practice motivate the Court’s decision, it bears repeating that federal habeas corpus is a statutory right and that this Court, not Congress, has expanded the availability of the writ. Before this judicial expansion, a prisoner seeking a writ of habeas corpus was permitted to challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody. See Wright v. West, 505 U. S. 277, 285-286 (1992) (opinion of THOMAS, J.). A Ford claim obviously does not present such a challenge. A statute that has the effect of precluding adjudication of a claim that for most of our Nation’s history would have been considered noncognizable on habeas can hardly be described as “perverse.”

Accordingly, whether one considers respondent’s March 1993 federal habeas petition to have been his first habeas application — because his three previous applications had been dismissed for failure to exhaust — or his fourth — because respondent had already filed three previous habeas applications by that time — his May 1997 request for relief was undoubtedly either a “second” (following his first) or “successive” (following his fourth) habeas application. Respondent’s Ford claim, presented in this second or successive application, should have been dismissed as a “claim ... presented in a prior application.” § 2244(b)(1).

      This ease does not present the situation where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner’s initial habeas application. Therefore, we have no occasion to decide whether such a filing would be a “second or successive habeas corpus application” within the meaning of AEDPA.

       If the Court's position is that respondent’s May 1997 filing was an “application,” but not a “second or successive” one, presumably 28 U. S. C. § 2244(b) (1994 ed., Supp. II) would not have precluded respondent from presenting, along with his claim under Ford v. Wainwright, 477 U. S. 399 (1986), a claim previously adjudicated on the merits, for § 2244(b) operates to bar only those claims presented in “second or successive” applications.

       Even if a claim dismissed without prejudice could be treated as having never been presented, dismissal, as the Court concedes, would still be required because a Ford claim does not fit within § 2244(b)(2)(B)’s exceptions for claims not presented in prior applications. See ante, at 642.

       There is an additional reason why a state prisoner's Ford claim may not be cognizable on federal habeas. A state prisoner may bring a federal habeas petition "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254. A Ford claim does not challenge either the prisoner’s underlying conviction or the legality of the sentence; it challenges when (or whether) the sentence can be carried out.


author: Justice Scalia Justice Stevens, Justice Breyer,

text:
    TEXTRON LYCOMING RECIPROCATING ENGINE DIVISION, AVCO CORP. v. UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al.
    No. 97-463.
    Argued February 23, 1998
    Decided May 18, 1998

      Scalía, J., delivered the opinion of the Court, in which Rehnqtjist, C. J., and Stevens, O’ConnoR, Kennedy, Souter, Thomas, and Gjns-burg, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 662. Breyer, J., filed an opinion concurring in part and concurring in the judgment, post, p. 662.

      Timothy B. Dyk argued the cause for petitioner. With him on the briefs were Andrew M. Kramer and Daniel H. Bromberg.

      Stephen A. Yokieh argued the cause for respondents. With him on the brief were Daniel W. Sherrick, Marsha S. Berzon, James B. Coppess, and Laurence Gold

        Solicitor General Waxman, Deputy Solicitor General Wallace, Lisa Schiavo Blatt, Frederick L. Feinstein, Linda Sher, Norton J. Come, and John H. Ferguson filed a brief for the United States as amicus curiae urging affirmance.

   Justice Scalia

delivered the opinion of the Court.

The sole question presented for review is whether federal courts have subject-matter jurisdiction of this case under § 301(a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185(a).

I

Petitioner, Textron Lycoming Reciprocating Engine Division (Textron), employs at its Williamsport, Pennsylvania, plant approximately 500 members of respondents, the United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 187 (hereinafter UAW or Union). From April 1, 1994, to April 1,1997, Textron and the Union were parties to a collective-bargaining agreement that prohibited the Union from striking against Textron for any reason and, through the adoption of a separate memorandum agreement, required Textron to give the Union seven days’ notice before entering into any agreement to "subcontract out” work that would otherwise be performed by Union members. In June 1994, Textron announced that it planned to subcontract out a volume of work that would cause roughly one-half of the Union members to lose their jobs.

Thereafter, in November 1995, the Union filed the present complaint in Federal District Court, alleging that Tex-tron fraudulently induced the Union to sign the collective-bargaining agreement. Specifically, the Union claims that both before and during negotiations it repeatedly asked Tex-tron to provide any information it might have regarding plans to subcontract out work that would otherwise be performed by Union members; and that during negotiations, Textron had in fact completed such a plan, but despite the Union’s repeated requests said nothing about its existence. As redress, the Union seeks "a declaratory judgment that the existing collective bargaining agreement between the parties is voidable at the option of [the] UAW,” and “compensatory and punitive damages ... to compensate [the Union and its members] for the harm caused by [Textron’s] misrepresentations and concealments and to deter other Employers from similar conduct.” App. 19. The Union does not allege that either it or Textron ever violated the terms of the collective-bargaining agreement. As the basis of federal subject-matter jurisdiction, the complaint invokes § 301(a) of the Labor Management Relations Act, 29 U. S. C. § 185(a).

The District Court dismissed the complaint for lack of subject-matter jurisdiction, concluding that the cause of action it set forth did not come within § 301(a). The Court of Appeals for the Third Circuit reversed, 117 F. 3d 119 (1997); we granted certiorari, 522 U. S. 979 (1997).

II

Section 301(a) of the Labor Management Relations Act, 1947, provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respeet to the amount in controversy or without regard to the citizenship of the parties.” 61 Stat. 156, 29 U. S. C. § 185(a).

By its terms, this provision confers federal subject-matter jurisdiction only over “Jsjuits for violation of contracts.” The Union, and the Government in an amicus brief filed in support of the Union, contend that this includes suits alleging that a contract is invalid. Focusing on the breadth of the word “for,” the Government argues that § 301(a) “is broad enough to encompass not only a suit that ‘alleges’ a violation of contract, but also one that concerns a violation of contract, or is intended to establish a legal right to engage in what otherwise would be a contract violation.” Brief for United States as Amicus Curiae 11 (footnotes omitted). It is true enough, as the Government points out, that one of the numerous definitions of the word “for” is “[indicating the end with reference to which anything acts, serves, or is done;.... As a preparation towards, against, or in view of; having as goal or object;.... With the purpose or object of;.. . with a view to.” Webster’s New International Dictionary 984 (2d ed. 1950) (def. 2). Even applying that definition, the Government must make a considerable stretch to bring the present case within it. This suit obviously does not have as its “purpose or object” violation of any contract. The most the Government can assert (and it falls short of the definition) is that the suit seeks to facilitate “what otherwise would be ... contract violation[s].” Brief for United States 11 (emphasis added).

More basically, however, it is a “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.” Deal v. United States, 508 U. S. 129, 132 (1993). Accord, Cohen v. de la Cruz, ante, at 220. It is not the meaning of “for” we are seeking here, but the meaning of “[sjuits for violation of contracts.” That phrase cannot possibly bear the meaning ascribed to it by the Government. No one, for example, would describe a corporation’s harassing lawsuit against a competitor as a “suit for unfair competition,” even though that is precisely its “goal or object.” In the same vein, a suit “for violation of a contract” is not one filed “with a view to” a future contract violation (much less to facilitate action that “otherwise would be” a contract violation). It is one filed because a contract has been violated, just as a suit “for unfair competition” is one filed because unfair competition has occurred. In this context, the word “for” has an unmistakably backward-looking connotation, i. e., “[ijndicating the cause, motive, or occasion of an act, state, or condition; hence, because of; on account of; in consequence of; as the effect of; for the sake of; as, cursed himself for showing leniency.” Webster’s New International Dictionary 984 (2d ed. 1950) (def. 7). “Suits for violation of contracts” under § 301(a) are not suits that claim a contract is invalid, but suits that claim a contract has been violated.

This does not mean that a federal court can never adjudicate the validity of a contract under § 301(a). That provision simply erects a gateway through which parties may pass into federal court; once they have entered, it does not restrict the legal landscape they may traverse. Thus if, in the course of deciding whether a plaintiff is entitled to relief for the defendant’s alleged violation of a contract, the defendant interposes the affirmative defense that the contract was invalid, the court may, consistent with § 301(a), adjudicate that defense. See Kaiser Steel Corp. v. Mullins, 455 U. S. 72, 85-86 (1982). Similarly, a declaratory judgment plaintiff accused of violating a collective-bargaining agreement may ask a court to declare the agreement invalid. But in these cases, the federal court’s power to adjudicate the contract’s validity is ancillary to, and not independent of, its power to adjudicate “[s]uits for violation of contracts.”

This would seem to be the end of the matter. Here, the Union neither alleges that Textron has violated the contract, nor seeks declaratory relief from its own alleged violation. Indeed, as far as the Union’s complaint discloses, both parties are in absolute compliance with the terms of the collective-bargaining agreement. Section 301(a) jurisdiction does not lie over such a case.

The Union, however, asserts that the outcome is altered by the fact that it seeks relief pursuant to the Declaratory Judgment Act, 28 U. S. C. §2201. It argues that in order to determine whether § 301(a) jurisdiction lies over the declaratory-judgment aspect of its suit, we must look to the character of the threatened action to which its suit would interpose a defense, which in this case would be Textron’s action for breach of the collective-bargaining agreement. It relies on our decision in Shelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667 (1950), which held that a declaratory action asserting a federal defense to a nonfederal claim was not a “civil aetio[n] arising under the . . . laws ... of the United States” within the meaning of the federal-question jurisdiction statute, 28 U. S. C. § 1331. This argument makes several assumptions that we do not think can be indulged.

First, it assumes that facts which were the converse of Shelly Oil — i. e., a declaratory-judgment complaint raising a nonfederal defense to an anticipated federal claim — would confer § 1331 jurisdiction. That is not clear. It can be argued that anticipating a federal claim in a suit asserting a nonfederal defense no more effectively invokes § 1331 jurisdiction than anticipating a federal defense in a suit asserting a nonfederal claim. (The latter, of course, is barred by the well-pleaded-complaint rule, see Rivet v. Regions Bank of La., 522 U. S. 470, 475 (1998).) Perhaps it was the purpose of the Declaratory Judgment Act to permit such anticipation, see Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 19, n. 19 (1983), but Shelly Oil did not present that issue, and some of its language suggests that the declaratory-judgment plaintiff must himself have a federal claim. No decision of this Court has squarely confronted and explicitly upheld federal-question jurisdiction on the basis of the anticipated claim against which the declaratory-judgment plaintiff presents a nonfederal defense; and neither the Union nor the Government cites such a decision by any other federal court.

Second, the Union’s Shelly Oil argument assumes that what would suffice to sustain a declaratory-judgment action premised on § 1331 federal-question jurisdiction would suffice to sustain a declaratory-judgment action brought under § 301(a). But the language of the two provisions is quite different. Whereas §1331 authorizes “civil actions arising under the . . . laws ... of the United States” (which can arguably embrace a civil action presenting a defense to a federal claim), § 301(a) authorizes only “[sjuits for violation of contracts.”

But assuming (without deciding) that the converse of Shelly Oil confers § 1331 jurisdiction, and that what suffices for § 1331 suffices for § 301(a) as well, the Union’s prayer for a declaration that the collective-bargaining agreement was voidable is in our view inadequate to save the present suit, because it does not, and as far as the record shows it never did, present a ease or controversy giving the Union access to federal courts. That is obviously so at the present time, because the collective-bargaining agreement, whether voidable or not, has expired; the only question is whether the parties had any concrete dispute over the contract’s voidability at the time the suit was filed.

We see no evidence that they did. To be sure, Textron vigorously contested the complaint’s allegations of fraud that are the asserted cause of the claimed voidability as well as of the claimed damages; but that is no indication that Textron had any interest in defending the binding nature of the contract. Indeed, there is not even any indication that the Union had a concrete interest in establishing the wowbinding nature of the contract. This was not. (as one might have expected in a declaratory-judgment suit of this sort) a situation in which the Union had threatened to strike over the contracting-out, and Textron had asserted that a strike would violate the collective-bargaining agreement. The Union never threatened to strike. As far as appears, the company that had just eliminated the work of half its Wil-liamsport employees would have been perfectly willing to be excused from a contract negotiated when the Union was in a stronger bargaining position, and the Union had no intent or disposition to exercise a theoretical option to avoid a contract that was better than what it could negotiate anew. The fact that the fraud damages claim, if successful, would establish a voidability that (as far as appears) no one cared about, does not make the question of voidability a “ease of actual controversy,” 28 U. S. G. §2201, over which federal courts have § 301(a) jurisdiction. “The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision [Art. III, § 2] and is operative only in respect to controversies which are such in the constitutional sense.” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 239-240 (1937). See also Public Serv. Comm’n of Utah v. Wycoff Co., 344 U. S. 237, 242-243 (1952).

Because the Union’s complaint alleges no violation of the collective-bargaining agreement, neither we nor the federal courts below have subject-matter jurisdiction over this case under § 301(a) of the Labor Management Relations Act. Accordingly, the judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Stevens,

concurring.

If the Union’s allegations are true, it seems clear that petitioner violated its statutory duty to bargain in good faith. Our conclusion that the federal courts do not have § 301(a) jurisdiction over the Union’s suit therefore comports with the important goal of protecting the primary jurisdiction of the National Labor Relations Board in resolving disputes arising from the collective-bargaining process. As the Court has long recognized, “[i]t is implicit in the entire structure of the [National Labor Relations] Act that the Board acts to oversee and referee the process of collective bargaining.” H. K. Porter Co. v. NLRB, 397 U. S. 99, 107-108 (1970). “Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules.” Garner v. Teamsters, 346 U. S. 485, 490 (1953). The rules governing disputes that arise out of the collective-bargaining process are within the special competence of the National Labor Relations Board. Cf. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959). The fact that the Board undoubtedly has more expertise in the collective-bargaining area than federal judges provides an additional reason for concluding that Congress meant what it said in § 301(a) and for rejecting the Union’s and the Government’s broad reading of the “[sjuits for violation of contracts” language.

Justice Breyer,

concurring in part and concurring in the judgment.

I agree with the first five pages of the Court’s opinion. See ante, at 654-658. I also agree with the Court that the Union failed to show (or even to allege) a significant likelihood that it would strike and that Textron would then sue it for breach of its collective-bargaining agreement. See ante, at 661. I write separately, however, because this factual circumstance has more significance than the Court’s opinion suggests. See ante, at 658-660. Indeed, in my view, if the Union had shown that a strike and consequent employer breach-of-contract lawsuit were imminent, then the Declaratory Judgment Act, 28 U. S. C. § 2201, would have authorized the District Court to adjudicate this controversy. Unlike the Court, I would not leave the matter undecided.

My conclusion flows from the following two legal propositions: Proposition One. The Declaratory Judgment Act permits a federal court to “declare the rights and other legal relations of any interested party” as long as there exists an “actual controversy” that is “within [the] jurisdiction” of a federal court. 28 U. S. C. § 2201(a).

Proposition Two. Section 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185(a), permits a federal court to adjudicate both an employer’s claim that a contract’s (i. e., a collective-bargaining agreement’s) “no strike” clause forbids an ongoing strike and the related Union defense that it is free to strike because the contract itself is invalid. See ante, at 657-658; Brief for Petitioner 29 (“[B]efore enforcing an agreement, courts must adjudicate affirmative defenses such as fraud ... in the collective bargaining process”); Brief for United States as Amicus Curiae 13-14; Kaiser Steel Corp. v. Mullins, 455 U. S. 72, 85-86 (1982).

Proposition One means that the Declaratory Judgment Act gives a federal court the power to declare the “rights” and “legal relations” of both union and employer where the “controversy” described in Proposition Two is “actual,” e. g., where the strike and consequent employer lawsuit is imminent. Moreover, this Court has pointed out that “[fjederal courts have regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory judgment defendant [such as the employer here] brought a coercive action to enforce its rights, that suit would necessarily present a federal question.” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1,19 (1983). Hence the characterization of the Union's “no valid contract” claim as a “defense” that could not independently support § 301 jurisdiction is beside the point. See ibid.; Public Serv. Comm’n of Utah v. Wycoff Co., 344 U. S. 237, 248 (1952) (in declaratory judgment context, “it is-the character of the threatened action, and not of the defense, which will determine whether there is federal-question jurisdiction in the District Court”); see also 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2767, p. 741 (2d ed. 1983) (“federal nature of the right claimed not to exist is crucial to jurisdiction”).

This conclusion draws support in principle from the Declaratory Judgment Act’s basic objective, which is “to permit adjudication of either party’s claims of right.” Franchise Tax Board, supra, at 19, n. 19. And the conclusion draws support in practice from the prevalence in the lower courts of “reverse” declaratory judgment actions that focus upon a party’s likely defense, including actions found in contexts such as that now before us. See, e. g., El Paso Bldg. & Consir. Trades Council v. Associated Gen. Contractors of Am., 376 F. 2d 797, 799-800 (CA5 1967) (union threatened to strike, then filed declaratory judgment action for determination of contract’s validity, and court took jurisdiction under § 301); McNally Pittsburg, Inc. v. International Assn. of Bridge, Structural, and Ornamental Iron Workers, 812 F. 2d 615 (CA10 1987) (where actual controversy existed with union, employer allowed to seek prospective declaration that contract was invalid); Mobil Oil Corp. v. Oil, Chemical and Atomic Workers Int’l Union, AFL-CIO, 483 F. 2d 603 (CA5 1973) (same), rev’d on other grounds, 504 F. 2d 272 (1974) (en banc), Cf. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 176 (1965) (one likely to be sued for patent infringement “need not await the filing of a threatened suit by the patentee; the validity of the patent may be tested under the Declaratory Judgment Act”).

I cannot find any reason for an exception that would forbid “reverse” declaratory judgment actions in labor law contexts such as this one. To the contrary, this Court has suggested that the availability of declaratory judgment actions furthers the LMRA’s basic purposes. See Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 454-455 (1957) (§ 301 designed to promote “industrial peace” by “providing] the necessary legal remedies”); id., at 455-456 (quoting from floor statement of Representative Barden, 93 Cong. Rec. 3656-3657 (1947), that “the section ... contemplates not only the ordinary lawsuits for damages but also such other remedial proceedings, both legal and equitable, as might be appropriate .. . [including a suit] under the Declaratory Judgments Act in order to secure declarations from the Court of legal rights under the contract”); Smith v. Evening News Assn., 371 U. S. 195, 199 (1962) (“[Section] 301 is not to be given a narrow reading”). And the Government, in an amicus curiae brief, tells us that such an action would not interfere with the National Labor Relations Board’s administration of federal labor law. See Brief for United States as Amicus Curiae 27 (“The Board ... has concluded in this and other cases ... that a suit under Section 301(a) to declare a contract voidable based on fraud in the inducement does not unduly intrude upon its authority”).

Thus Declaratory Judgment Act jurisdiction would lie in a case like this one, provided, however, that the declaratory judgment plaintiff demonstrates an “actual controversy.” 28 U. S. C. § 2201(a); Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 239-240 (1937). The Union failed to make any such showing here, and for that reason I agree with the Court’s ultimate conclusion.

       The Union's brief before this Court asserts, in a footnote and without elaboration, that “there may well be jurisdiction over this case under 28 U. S. C. § 1331 as well as under § 301, since the case ‘arises under’ the federal common law of contract.” Brief for Respondents 23, n. 11. That issue was not contained within the Question Presented in the Petition for Certiorari, which read:
      “Whether Section 301 of the Labor-Management Relations Act, 29 U. S. C. § 185, which confers federal jurisdiction over ‘[s]uits for violation of contracts between an employer and a labor organization,’ permits a union to sue in federal court to declare a collective bargaining agreement voidable in the absence of any alleged violation of the agreement.”

       The Declaratory Judgment Act provides, in relevant part, that “[i]n a ease of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not farther relief is or could be sought.” 28 U. S. C. § 2201(a).

       “Prior to [the Declaratory Judgment] Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction .... The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff’s right even though no immediate enforcement of it was asked.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U. S. 667, 671-672 (1950).
      “[I]t has been settled doctrine that where a suit is brought in the federal courts “upon the sole ground that the determination of the suit depends upon some question of a Federal nature, it must appear, at the outset, from the declaration or the bill of the party suing, that the suit is of that character.’ But ‘a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.’ ” Id., at 672, quoting Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 464 (1894).

       In Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983), we observed, with seeming approval, that “[fjederal courts have regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory judgment defendant brought a coercive action to enforce its rights, that suit would necessarily present a federal question.” Id., at 19. The cases brought forward to support that observation, however, were suits by alleged patent infringers to declare a patent invalid, which of course themselves raise a federal question. See id., at 19, n. 19.