source: Caselaw Access Project

author: Justice Kennedy

license: Public Domain

text:
    WILLIAMS v. TAYLOR, WARDEN
    No. 99-6615.
    Argued February 28, 2000
    Decided April 18, 2000

      Kennedy, J., delivered the opinion for a unanimous Court.

      John H. Blume argued the cause for petitioner. With him on the briefs were Keir M. Weyble, Barbara L. Hartung, by appointment of the Court, 528 U. S. 1044, and James E. Moore.

      Donald R. Curry, Senior Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief was Mark L. Earley, Attorney General.

      A brief of amici curiae urging affirmance was filed for the State of California et al. by Bill Lockyer, Attorney General of California, David P. Dndiner, Chief Assistant Attorney General, John R. Gorey, Acting Senior Assistant Attorney General, and Donald E. De Nicola, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modi-sett of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota,
        John Cornyn of Texas, Jan Graham of Utah, and Christine 0. Gregoire of Washington.

   Justice Kennedy

delivered the opinion of the Court.

Petitioner Michael Wayne Williams received a capital sentence for the murders of Morris Keller, Jr., and Keller’s wife, Mary Elizabeth. Petitioner later sought a writ of habeas corpus in federal court. Accompanying his petition was a request for an evidentiary hearing on constitutional claims which, he alleged, he had been unable to develop in state-court proceedings. The question in this case is whether 28 U. S. C. § 2254(e)(2) (1994 ed., Supp. Ill), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, bars the evidentiary hearing petitioner seeks. If petitioner “has failed to develop the factual basis of [his] claim[s] in State court proceedings,” his case is subject to § 2254(e)(2), and he may not receive a hearing because he concedes his inability to satisfy the statute’s further stringent conditions for excusing the deficiency.

I

On the evening of February 27,1993, Verena Lozano James dropped off petitioner and his friend Jeffrey Alan Cruse near a local store in a rural area of Cumberland County, Virginia. The pair planned to rob the store’s employees and customers using a .357 revolver petitioner had stolen in the course of a quadruple murder and robbery he had committed two months earlier. Finding the store closed, petitioner and Cruse walked to the Kellers’ home. Petitioner was familiar with the couple, having grown up down the road from where they lived. He told Cruse they would have “a couple thousand dollars.” App. 78. Cruse, who had been holding the .357, handed the gun to petitioner and knocked on the door. When Mr. Keller opened the door, petitioner pointed the gun at him as the two intruders forced their way inside. Petitioner and Cruse forced Mr. Keller to the kitchen, where they discovered Mrs. Keller. Petitioner ordered the captives to remove their clothing. While petitioner kept guard on the Kellers, Cruse searched the house for money and other valuables. He found a .38-caliber handgun and bullets. Upon Cruse’s return to the kitchen, petitioner had Cruse tie their captives with telephone cords. The Kellers were confined to separate closets while the intruders continued ransacking the house.

When they gathered all they wanted, petitioner and Cruse decided to rape Mrs. Keller. With Mrs. Keller pleading with them not to hurt her or her husband, petitioner raped her. Cruse did the same. Petitioner then ordered the Kellers to shower and dress and “take a walk” with him and Cruse. Id., at 97. As they were leaving, petitioner told Mrs. Keller he and Cruse were going to burn down the house. Mrs. Keller begged to be allowed to retrieve her marriage license, which she did, guarded by petitioner.

As the prosecution later presented the case, details of the murders were as follows. Petitioner, now carrying the .38, and Cruse, carrying the .357, took the Kellers to a thicket down a dirt road from the house. With petitioner standing behind Mr. Keller and Cruse behind Mrs. Keller, petitioner told Cruse, “We’ll shoot at the count of three.” Id., at 103. At the third count, petitioner shot Mr. Keller in the head, and Mr. Keller collapsed to the ground. Cruse did not shoot Mrs. Keller at the same moment. Saying “he didn’t want to leave no witnesses,” petitioner urged Cruse to shoot Mrs. Keller. Ibid. Cruse fired one shot into her head. Despite his wound, Mr. Keller stood up, but petitioner shot him a second time. To ensure the Kellers were dead, petitioner shot each of them two or three more times.

After returning to the house and loading the stolen property into the Kellers’ jeep, petitioner and Cruse set fire to the house and drove the jeep to Fredericksburg, Virginia, where they sold some of the property. They threw the remaining property and the .357 revolver into the Rappahan-nock River and set fire to the jeep.

Pursuing a lead from Verena James, the police interviewed Cruse about the fire at the Kellers’ home. Petitioner had fled to Florida. Cruse provided no useful information until the police discovered the bodies of the victims, at which point Cruse consulted counsel. In a plea bargain Cruse agreed to disclose the details of the crimes in exchange for the Commonwealth’s promise not to seek the death penalty against him. Cruse described the murders but made no mention of his own act of rape. When the Commonwealth discovered the omission, it revoked the plea agreement and charged Cruse with capital murder.

Petitioner was arrested and charged with robbery, abduction, rape, and the capital murders of the Kellers. At trial in January 1994, Cruse was the Commonwealth’s main witness. He recounted the murders as we have just described. Cruse testified petitioner raped Mrs. Keller, shot Mr. Keller at least twice, and shot Mrs. Keller several times after she had been felled by Cruse’s bullet. He also described petitioner as the mastermind of the murders. The circumstances of the first plea agreement between the Commonwealth and Cruse and its revocation were disclosed to the jury. Id., at 158-159. Testifying on his own behalf, petitioner admitted he was the first to shoot Mr. Keller and it was his idea to rob the store and set fire to the house. He denied, however, raping or shooting Mrs. Keller, and claimed to have shot Mr. Keller only once. Petitioner blamed Cruse for the remaining shots and disputed some other parts of Cruse’s testimony.

The jury convicted petitioner on all counts. After considering the aggravating and mitigating evidence presented during the sentencing phase, the jury found the aggravating circumstances of future dangerousness and vileness of the crimes and recommended a death sentence. The trial court imposed the recommended sentence. The Supreme Court of Virginia affirmed petitioner’s convictions and sentence, Williams v. Commonwealth, 248 Va. 528, 450 S. E. 2d 365 (1994), and we denied certiorari, Williams v. Virginia, 515 U. S. 1161 (1995). In a separate proceeding, Cruse pleaded guilty to the capital murder of Mrs. Keller and the first-degree murder of Mr. Keller. After the prosecution asked the sentencing court to spare his life because of his testimony against petitioner, Cruse was sentenced to life imprisonment.

Petitioner filed a habeas petition in state court alleging, in relevant part, that the Commonwealth failed to disclose a second agreement it had reached with,Cruse after the first one was revoked. The new agreement, petitioner alleged, was an informal undertaking by the prosecution to recommend a life sentence in exchange for Cruse’s testimony. Finding no merit to petitioner’s claims, the Virginia Supreme Court dismissed the habeas petition^ and we again denied certiorari. Williams v. Netherland, 519 U. S. 877 (1996).

Petitioner filed a habeas petition in the United States District Court for the Eastern District of Virginia on November 20,1996. In addition to his claim regarding the alleged undisclosed agreement between the Commonwealth and Cruse, the petition raised three claims relevant to questions now before us. First, petitioner claimed the prosecution had violated Brady v. Maryland, 373 U. S. 83 (1963), in failing to disclose a report of a confidential pretrial psychiatric examination of Cruse. Second, petitioner alleged his trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias. Finally, petitioner alleged one of the prosecutors committed misconduct in failing to reveal his knowledge of the juror’s possible bias.

The District Court granted an evidentiary hearing on the undisclosed agreement and the allegations of juror bias and prosecutorial misconduct but denied a hearing on the psychiatric report. Before the evidentiary hearing could be held, the Commonwealth filed an application for an emergency stay and a petition for a writ of mandamus and prohibition in the Court of Appeals. The Commonwealth argued that petitioner’s evidentiary hearing was prohibited by 28 U. S. C. § 2254(e)(2) (1994 ed., Supp. III). A divided panel of the Court of Appeals granted the emergency stay and remanded for the District Court to apply the statute to petitioner’s request for an evidentiary hearing. On remand, the District Court vacated its order granting an evidentiary hearing and dismissed the petition, having determined petitioner could not satisfy §2254(e)(2)’s requirements.

The Court of Appeals affirmed. It first considered petitioner’s argument that §2254(e)(2) did not apply to his case because he had been diligent in attempting to develop his claims in.state court. Citing its decision in Cardwell v. Greene, 152 F. Sd 331 (CA4), cert. denied, 525 U. S. 1037 (1998), the Court of Appeals agreed with petitioner that § 2254(e)(2) would not apply if he had exercised diligence in state court. The court held, however, that petitioner had not been diligent and so had “failed to develop” in state court the factual bases of his Brady, juror bias, and prosecutorial misconduct claims. See 189 F. 3d 421, 426 (CA4 1999). The Court of Appeals concluded petitioner could not satisfy the statute’s conditions for excusing his failure to develop the facts and held him barred from receiving an evidentiary hearing. The Court of Appeals ruled in the alternative that, even if § 2254(e)(2) did not apply, petitioner would be ineligible for an evidentiary hearing under the cause and prejudice standard of pre-AEDPA law. See id., at 428.

Addressing petitioner’s claim of an undisclosed informal agreement between the Commonwealth and Cruse, the Court of Appeals rejected it on the merits under 28 U. S. C. § 2254(d)(1) and, as a result, did not consider whether § 2254(e)(2) applied. See 189 F. 3d, at 429.

On October 18,1999, petitioner filed an application for stay of execution and a petition for a writ of certiorari. On October 28, we stayed petitioner’s execution and granted certio-rari to decide whether § 2254(e)(2) precludes him from receiving an evidentiary hearing on his claims. See 528 U. S. 960 (1999). We now affirm in part and reverse in part.

II

A

Petitioner filed his federal habeas petition after AEDPA’s effective date, so the statute applies to his case. See Lindh v. Murphy, 521 U. S. 320, 326-327 (1997). The Commonwealth argues AEDPA bars petitioner from receiving an evidentiary hearing on any claim whose factual basis was not developed in state court, absent narrow circumstances not applicable here. Petitioner did not develop, or raise, his claims of juror bias, prosecutorial misconduct, or the prosecution’s alleged Brady violation regarding Cruse’s psychiatric report until he filed his federal habeas petition. Petitioner explains he could not have developed the claims earlier because he was unaware, through no fault of his own, of the underlying facts. As a consequence, petitioner contends, AEDPA erects no barrier to an evidentiary hearing in federal court.

Section 2254(e)(2), the provision which controls whether petitioner may receive an evidentiary hearing in federal district court on the claims that were not developed in the Virginia courts, becomes the central point of our analysis. It provides as follows:

“If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
“(A) the claim relies on—
“(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
“(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
“(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”

By the terms of its opening clause the statute applies only to prisoners who have “failed to develop the factual basis of a claim in State court proceedings.” If the prisoner has failed to develop the facts, an evidentiary hearing earinot be granted unless the prisoner’s case meets the other conditions of § 2254(e)(2). Here, petitioner concedes his case does not comply with § 2254(e)(2)(B), see Brief for Petitioner 25, so he may receive an evidentiary hearing only if his claims fall outside the opening clause.

There was no hearing in state court on any of the claims for which petitioner now seeks an evidentiary hearing. That, says the Commonwealth, is the end of the matter. In its view petitioner, whether or not through his own fault or neglect, still “failed to develop the factual basis of a claim in State court proceedings.” Petitioner, on the other hand, says the phrase "failed to develop” means lack of diligence in developing the claims, a defalcation he contends did not occur since he made adequate efforts during state-court proceedings to discover and present the underlying facts. The Court of Appeals agreed with petitioner’s interpretation of § 2254(e)(2) but believed petitioner had not exercised enough diligence to avoid the statutory bar. See 189 F. 3d, at 426. We agree with petitioner and the Court of Appeals that “failed to develop” implies some lack of diligence; but, unlike the Court of Appeals, we find no lack of diligence on petitioner’s part with regard to two of his three claims.

B

We start, as always, with the language of the statute. See United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989). Section 2254(e)(2) begins with a conditional clause, “[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings,” which directs attention to the prisoner’s efforts in state court. We ask first whether the factual basis was indeed developed in state court, a question susceptible, in the normal course, of a simple yes or no answer. Here the answer is no.

The Commonwealth would have the analysis begin and end there. Under its no-fault reading of the statute, if there is no factual development in the state court, the federal ha-beas court may not inquire into the reasons for the default when determining whether the opening clause of § 2254(e)(2) applies. We do not agree with the Commonwealth’s interpretation of the word “failed.”

We do not deny “fail” is sometimes used in a neutral way, not importing fault or want of diligence. So the phrase ‘We fail to understand his argument” can mean simply ‘We cannot understand his argument.” This is not the sense in which the word “failed” is used here, however.

We give the words of a statute their “ ‘ordinary, contempo^ rary, common meaning,’ ” absent an indication Congress intended them to bear some different import. Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207 (1997) (quoting Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993)). See also Bailey v. United States, 516 U. S. 137, 141 (1995). In its customary and preferred sense, “fail” connotes some omission, fault, or negligence on the part of the person who has failed to do something. See, e. g., Webster’s New International Dictionary 910 (2d ed. 1939) (defining “fail” as “to be wanting; to fall short; to be or become deficient in any measure or degree,” and “failure” as “a falling short,” “a deficiency or lack,” and an “[o]mission to perform”); Webster’s New International Dictionary 814 (3d ed. 1993) (“to leave some possible or expected action unperformed or some condition un-achieved”).' See also Black’s Law Dictionary 594 (6th ed. 1990) (defining “fail” as “[f]ault, negligence, or refusal”). To say a person has failed in a duty implies he did not take the necessary steps to fulfill it. He is, as a consequence, at fault and bears responsibility for the failure. In this sense, a person is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all. We conclude Congress used the word “failed” in the sense just described. Had Congress intended a no-fault standard, it would have had no difficulty in making its intent plain. It would have had to do no more than use, in lieu of the phrase “has failed to,” the phrase “did not.”

Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel. In this we agree with the Court of Appeals and with all other courts of appeals which have addressed the issue. See, e. g., Baja v. Ducharme, 187 F. 3d 1075, 1078-1079 (CA9 1999); Miller v. Champion, 161 F 3d 1249, 1253 (CA10 1998); Cardwell, 152 F 3d, at 337; McDonald v. Johnson, 139 F 3d 1056, 1059 (CA5 1998); Burris v. Parke, 116 F 3d 256, 258 (CA7 1997); Love v. Morton, 112 F 3d 131, 136 (CA3 1997).

Our interpretation of § 2254(e)(2)’s opening clause has support in Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992), a case decided four years before AEDPA’s enactment. In Keeney, a prisoner with little knowledge of English sought an eviden-tiary hearing in federal court, alleging his nolo contendere plea to a manslaughter charge was not knowing and voluntary because of inaccuracies in the translation of the plea proceedings. The prisoner had not developed the facts of his claim in state collateral proceedings, an omission caused by the negligence of his state postconviction counsel. See id., at 4, 8-9. The Court characterized this as the “prisoner’s failure to develop material facts in state court.” Id., at 8. We required the prisoner to demonstrate cause and prejudice excusing the default before he could receive a hearing on his claim, ibid., unless the prisoner could “show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing,” id., at 12.

Section 2254(e)(2)’s initial inquiry into whether “the applicant has failed to develop the factual basis of a claim in State court proceedings” echoes Keeney’s language regarding “the state prisoner’s failure to develop material facts in state court.” In Keeney, the Court borrowed the cause and prejudice standard applied to procedurally defaulted claims, see Wainwright v. Sykes, 433 U. S. 72, 87-88 (1977), deciding there was no reason “to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim.” Keeney, supra, at 8. As is evident from the similarity between the Court’s phrasing in Keeney and the opening clause of § 2254(e)(2), Congress intended to preserve at least one aspect of Keeney’s, holding: prisoners who are at fault for the deficiency in the state-court record must satisfy a heightened standard to obtain an evidentiary hearing. To be sure, in requiring that prisoners who have not been diligent satisfy § 2254(e)(2)’s provisions rather than show cause and prejudice, and in eliminating a freestanding “miscarriage of justice” exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings. Contrary to the Commonwealth’s position, however, there is no basis in the text of § 2254(e)(2) to believe Congress used “fail” in a different sense than the Court did in Keeney or otherwise intended the statute’s further, more stringent requirements to control the availability of an evidentiary hearing in a broader class of cases than were covered by Keeney’s cause and prejudice standard.

In sum, the opening clause of § 2254(e)(2) codifies Keeney's threshold standard of diligence, so that prisoners who would have had to satisfy Keeney’s test for excusing the deficiency in the state-court record prior to AEDPA are now controlled by § 2254(e)(2). When the words of the Court are used in a later statute governing the same subject matter, it is respectful of Congress and of the Court’s own processes to give the words the same meaning in the absence of specific direction to the contrary. See Lorillard v. Pons, 434 U. S. 575, 581 (1978) (“[WJhere ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute”). See also Cottage Savings Assn. v. Commissioner, 499 U. S. 554, 562 (1991).

Interpreting § 2254(e)(2) so that “failed” requires lack .of diligence or some other fault avoids putting it in needless tension with § 2254(d). A prisoner who developed his claim in state court and can prove the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” is not barred from obtaining relief by § 2254(d)(1). See Williams v. Taylor, ante, at 412-413 (majority opinion). If the opening clause of § 2254(e)(2) covers a request for an evidentiary hearing on a claim which was pursued with diligence but remained undeveloped in state court because, for instance, the prosecution concealed the facts, a prisoner lacking clear and convincing evidence of innocence could be barred from a hearing on the claim even if he could satisfy § 2254(d). See 28 U. S. C. § 2254(e)(2)(B). The “failed to develop” clause does not bear this harsh reading, which would attribute to Congress a purpose or design to bar evidentiary hearings for diligent prisoners with meritorious claims just because the prosecution’s conduct went undetected in state court. We see no indication that Congress by this language intended to remove the distinction between a prisoner who is at fault and one who is not.

The Commonwealth argues a reading of “failed to develop” premised on fault empties § 2254(e)(2)(A)(ii) of its meaning. To treat the prisoner’s lack of diligence in state court as a prerequisite for application of § 2254(e)(2), the Commonwealth contends, renders a nullity of the statute’s own diligence provision requiring the prisoner to show “a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence.” § 2254(e)(2) (A)(ii). We disagree.

The Commonwealth misconceives the inquiry mandated by the opening clause of § 2254(e)(2). The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts. The purpose of the fault component of “failed” is to ensure the prisoner undertakes his own diligent search for evidence. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend, as the Commonwealth would have it, upon whether those efforts could have been successful. Though lack of diligence will not bar an evidentiary hearing if efforts to discover the facts would have been in vain, see § 2254(e)(2)(A)(ii), and there is a convincing claim of innocence, see § 2254(e)(2)(B), only a prisoner who has neglected his rights in state court need satisfy these conditions. The statute’s later reference to diligence pertains to cases in which the facts could not have been discovered, whether there was diligence or not. In this important respect § 2254(e)(2)(A)(ii) bears a close resemblance to (e)(2)(A)(i), which applies to a new rule that was not available at the time of the earlier proceedings. Cf. Gutierrez v. Ada, 528 U. S. 250, 255 (2000) (“[W]ords and people are known by their companions”). Cf. also United States v. Locke, ante, at 105. In these two parallel provisions Congress has given prisoners who fall within §2254(e)(2)’s opening clause an opportunity to obtain an evidentiary hearing where the legal or factual basis of the claims did not exist at the time of state-court proceedings.

We are not persuaded by the Commonwealth’s further argument that anything less than a no-fault understanding of the opening clause is contrary to AEDPA’s purpose to further the principles of comity, finality, and federalism. There is no doubt Congress intended AEDPA to advance these doctrines. Federal habeas corpus principles must inform and shape the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts. In keeping this delicate balance we have been careful to limit the scope of federal intrusion into state criminal adjudications and to safeguard the States’ interest in the integrity of their criminal and collateral proceedings. See, e. g., Coleman v. Thompson, 501 U. S. 722, 726 (1991) (“This is a case about federalism. It concerns the respect that federal courts owe the States and the States’ procedural rules when reviewing the claims of state prisoners in federal habeas corpus”); McCleskey v. Zant, 499 U. S. 467, 493 (1991) (“[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State’s interest in the finality of its criminal judgments”).

It is consistent with these principles to give effect to Congress’ intent to avoid unneeded evidentiary hearings in federal habeas corpus, while recognizing the statute does not equate prisoners who exercise diligence in pursuing their claims with those who do not. Principles of exhaustion are premised upon recognition by Congress and the Court that state judiciaries have the duty and competence to vindicate rights secured by the Constitution in state criminal proceedings. Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law. “Comity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.” O’Sullivan v. Boerckel, 526 U. S. 838, 844 (1999). For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute’s other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings. Yet comity is not served by saying a prisoner “has failed to develop the factual basis of a claim” where he was unable to develop his claim in state court despite diligent effort. In that circumstance, an evidentiary hearing is not barred by § 2254(e)(2).

III

Now we apply the statutory test. If there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not “failed to develop” the facts under § 2254(e)(2)’s opening clause, and he will be excused from showing compliance with the balance of the subsection’s requirements. We find lack of diligence as to one of the three claims but not as to the other two.

A

Petitioner did not exercise the diligence required to preserve the claim that nondisclosure of Cruse’s psychiatric report was in contravention of Brady v. Maryland, 373 U. S. 83 (1963). The report concluded Cruse “ha[d] little recollection of the [murders of the Kellers], other than vague memories, as he was intoxicated with alcohol and marijuana at the time.” App. 495. The report had been prepared in September 1993, before petitioner was tried; yet it was not mentioned by petitioner until he filed his federal habeas petition and attached a copy of the report. Petitioner explained that an investigator for his federal habeas counsel discovered the report in Cruse’s court file but state habeas counsel had not seen it when he had reviewed the same file. State habeas counsel .averred as follows:

“Prior to filing [petitioner’s] habeas corpus petition with the Virginia Supreme Court, I reviewed the Cumberland County court files of [petitioner] and of his co-defendant, Jeffrey Cruse. ... I have reviewed the attached psychiatric evaluation of Jeffrey Cruse .... I have no recollection of seeing this report in Mr. Cruse’s court file when I examined the file. Given the contents of the report, I am confident that I would remember it.” Id., at 625-626.

The trial court was not satisfied with this explanation for the late discovery. Nor are we.

There are repeated references to a “psychiatric” or “mental health” report in a transcript of Cruse’s sentencing proceeding, a copy of which petitioner’s own state habeas counsel attached to the state habeas petition he filed with the Virginia Supreme Court. The transcript reveals that Cruse’s attorney described the report with details that should have alerted counsel to a possible Brady claim. As Cruse’s attorney said:

“The psychiatric report . . . point[s] out that [Cruse] is significantly depressed. He suffered from post traumatic stress. His symptoms include nightmares, sleeplessness, sobbing, reddening of the face, severe depression, flash hacks .... [T]he psychological report states he is overwhelmed by feelings of gnilt and shame in his actions. He is numb. He is trying to suppress his feelings, but when he has feelings, there is only pain and sadness.” App. 424.

The description accords with the contents of the psychiatric report, which diagnosed Cruse as suffering from post-traumatic stress disorder:

“[Cruse] has recurrent nightmares and visualizes the face of the woman that he killed. When attempting to describe this nightmare, he breaks openly into tears and his face reddens.... He continues to feel worthless as a person .... He has no hope for his future and has been thinking of suicide constantly.... He does describe inability to sleep, often tossing and turning, waking up, and feeling fatigued during the day. ... He described neurovegetative symptoms of major depression and post-traumatic nightmares, recurrent in nature, of the [murders].” Id., at 495-499.

The transcript put petitioner’s state habeas counsel on notice of the report’s existence and possible materiality. The sole indication that counsel made some effort to investigate the report is an October 30, 1995, letter to the prosecutor in which counsel requested “[a]ll reports of physical and mental examinations, scientific tests, or experiments conducted in connection with the investigation of the offense, including but not limited to: . . . [a]ll psychological test or polygraph examinations performed upon any prosecution witness and all documents referring or relating to such tests . . . .” Id., at 346-347. After the prosecution declined the requests absent a court order, id., at 353, it appears counsel made no farther efforts to find the specific report mentioned by Cruse’s attorney. Given knowledge of the report’s existence and potential importance, a diligent attorney would have done more. Counsel’s failure to investigate these references in anything but a cursory manner triggers the opening clause of § 2254(e)(2).

As we hold there was a failure to develop the factual basis of this Brady claim in state court, we must determine if the requirements in the balance of § 2254(e)(2) are satisfied so that petitioner’s failure is excused. Subparagraph (B) of § 2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, see Brief for Petitioner 25, and the case has been presented to us on that premise. For these reasons, we affirm the Court of Appeals’ judgment barring an evidentiary hearing on this claim.

B

We conclude petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prosecutorial misconduct claims in collateral proceedings before the Virginia Supreme Court.

Petitioner’s claims are based on two of the questions posed to the jurors by the trial judge at voir dire. First, the judge asked prospective jurors, “Axe any of you related to the following people who may be called as’witnesses?” Then he read the jurors a list of names, one of which was “Deputy Sheriff Claude Meinhard.” Bonnie Stinnett, who would later become the jury foreperson, had divorced Meinhard in 1979, after a 17-year marriage with four children. Stinnett remained silent, indicating the answer was “no.” Meinhard, as the officer who investigated the crime scene and interrogated Cruse, would later become the prosecution’s lead-off witness at trial.

After reading the names of the attorneys involved in the case, including one of the prosecutors, Robert Woodson, Jr., the judge asked, “Have you or any member of your immediate family ever been represented by any of the aforementioned attorneys?” Stinnett again said nothing, despite the fact Woodson had represented her during her divorce from Meinhard. App. 483, 485.

In an affidavit she provided in the federal habeas proceedings, Stinnett claimed “[she] did not respond to the judge’s [first] question because [she] did not consider [herself] ‘related’ to Claude Meinhard in 1994 [at voir dire] .... Once our marriage ended in 1979,1 was no longer related to him.” Id., at 627. As for Woodson’s earlier representation of her, Stinnett explained as follows:

“When Claude and I divorced in 1979, the divorce was uncontested and Mr. Woodson drew up the papers so that the divorce could be completed. Since neither Claude nor I was contesting anything, I didn’t think Mr. Woodson ‘represented’ either one of us.” Id., at 628.

Woodson provided an affidavit in which he admitted “[he] was aware that Juror Bonnie Stinnett was the ex-wife of then Deputy Sheriff Claude Meinhard and [he] was aware that they had been divorced for some time.” Id., at 629. Woodson stated, however, “[t]o [his] mind, people who are related only by marriage are no longer ‘related’ once the marriage ends in divorce.” Ibid. Woodson also “had no recollection of having been involved as a private attorney in the divorce proceedings between Claude Meinhard and Bonnie Stinnett.” Id., at 629-630. He explained that “[w]hat-ever [his] involvement was in the 1979 divorce, by the time of trial in 1994 [he] had completely forgotten about it.” Id., at 630.

Even if Stinnett had been correct in her technical or literal interpretation of the question relating to Meinhard, her silence after the first question was asked could suggest to the finder of fact an unwillingness to be forthcoming; this in turn could bear on the veracity of her explanation for not disclosing that Woodson had been her attorney. Stinnett’s failure to divulge material information in response to the second question was misleading as a matter of fact because, under any interpretation, Woodson had acted as counsel to her and Meinhard in their divorce. Coupled with Woodson’s own reticence, these omissions as a whole disclose the need for an evidentiary hearing. It may be that petitioner could establish that Stinnett was not impartial, see Smith v. Phillips, 455 U. S. 209, 217, 219-221 (1982), or that Woodson’s silence so infected the trial as to deny due process, see Donnelly v. DeChristoforo, 416 U. S. 637, 647-648 (1974).

In ordering an evidentiary hearing on the juror bias and prosecutorial misconduct claims, the District Court concluded the factual basis of the claims was not reasonably available to petitioner’s counsel during state habeas proceedings. After the Court of Appeals vacated this judgment, the District Court dismissed the petition and the Court of Appeals affirmed under the theory that state habeas counsel should have discovered Stinnett’s relationship to Meinhard and Woodson. See 189 F. 3d, at 428.

We disagree with the Court of Appeals on this point. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett’s nonresponse was a deliberate omission of material information. State habeas counsel did attempt to investigate petitioner’s jury, though prompted by concerns about a different juror. App. 388-389. Counsel filed a motion for expert services with the Virginia Supreme Court, alleging “irregularities, improprieties and omissions exist[ed] with respect to the empaneling [sic] of the jury.” Id., at 358. Based on these suspicions, counsel requested funding for an investigator “to examine all circumstances relating to the empanelment of the jury and the jury’s consideration of the case.” Ibid. The Commonwealth opposed the motion, and the Virginia Supreme Court denied it and dismissed the habeas petition, depriving petitioner of a further opportunity to investigate. The Virginia Supreme Court’s denial of the motion is understandable in light of petitioner’s vague allegations, but the vagueness was not the fault of petitioner. Counsel had no reason to believe Stinnett had been married to Meinhard or been represented by Woodson. The underdevelopment of these matters was attributable to Stinnett and Woodson, if anyone. We do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discover the claims to commence or continue state proceedings, § 2254(e)(2) will not bar him from developing them in federal court.

The Court of Appeals held state habeas counsel was not diligent because petitioner’s investigator on federal habeas discovered the relationships upon interviewing two jurors who referred in passing to Stinnett as “Bonnie Meinhard.” See Brief for Petitioner 35. The investigator later confirmed Stinnett’s prior marriage to Meinhard by checking Cumberland County’s public records. See 189 F. 3d, at 426 (“The documents supporting [petitioner’s] Sixth Amendment claims have been a matter of public record since Stinnett’s divorce became final in 1979. Indeed, because [petitioner’s] federal habeas counsel located those documents, there is little reason to think that his state habeas counsel could not have done so as well”). We should be surprised, to say the least, if a district court familiar with the standards of trial practice were to hold that in all cases diligent counsel must check public records containing personal information pertaining to each and every juror. Because of Stinnett and Woodson’s silence, there was no basis for an investigation into Stinnett’s marriage history. Section 2254(e)(2) does not apply to petitioner’s related claims of juror bias and prosecu-torial misconduct.

We further note the Commonwealth has not argued that petitioner could have sought relief in state court once he discovered the factual bases of these claims some time between appointment of federal habeas counsel on July 2, 1996, and the filing of his federal ■ habeas petition on November 20, 1996. As an indigent, petitioner had 120 days following appointment of state habeas counsel to file a petition with the Virginia Supreme Court. Va. Code Ann. §8.01-654.1 (1999). State habeas counsel was appointed on August 10, 1995, about a year before petitioner’s investigator on federal ha-beas uncovered the information regarding Stinnett and Woodson. As state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts. In these circumstances, though the state courts did not have an opportunity to consider the new claims, petitioner cannot be said to have failed to develop them in state court by reason of having neglected to pursue remedies available under Virginia law.

Our analysis should suffice to establish cause for any procedural default petitioner may have committed in not presenting these claims to the Virginia courts in the first instance. Questions regarding the standard for determining the prejudice that petitioner must establish to obtain relief on these claims can be addressed by the Court of Appeals or the District Court in the course of further proceedings. These courts, in light of cases such as Smith, supra, at 215 (“[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias”), will take due account of the District Court’s earlier decision to grant an evidentiary hearing based in part on its belief that “Juror Stinnett deliberately failed to tell the truth on voir dire.” Williams v. Netherlands, Civ. Action No. 3:96CV529 (ED Va., Apr. 13, 1998), App. 529, 557.

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Petitioner alleges the Commonwealth failed to disclose an informal plea agreement with Cruse. The Court of Appeals rejected this claim on the merits under § 2254(d)(1), so it is unnecessary to reach the question whether § 2254(e)(2) would permit a hearing on the claim.

The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


author: Justice Scalia Justice Breyer,

text:
    EDWARDS, WARDEN v. CARPENTER
    No. 98-2060.
    Argued February 28, 2000
    Decided April 25, 2000

      Scalia, J., delivered the opinion of the. Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., filed an opinion concurring in the judgment, in which Stevens, J., joined, post, p. 454.

      Edward B. Foley, State Solicitor of Ohio, argued the cause for petitioner. With him on the briefs were Betty D. Montgomery, Attorney General, David M. Gormley, and Stephen P. Carney.

      J. Joseph Bodine, Jr., argued the cause for respondent. With him on the brief were David H. Bodiker, Laurence E. Komp, and Angela Wilson Miller.

      A brief of amici curiae urging reversal was filed for the State of Texas et al. by John Comyn, Attorney General of Texas, Andy Taylor, First Assistant Attorney General, Shane Phelps, Deputy Attorney General for Criminal Justice, Gregory S. Coleman, Solicitor General, Idolina G. McCullough, Assistant Solicitor General, Michael E. McLachlan, Solicitor General of Colorado, and John M. Bailey, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Janet Napolitano of Arizona, Bill Lockyer of California, Ken

        Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thv/rbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Patricia A Madrid of New Mexico, W. A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin.

   Justice Scalia

delivered the opinion of the Court.

This case presents the question whether a federal habeas court is barred from considering an ineffective-assistanee-of-counsel claim as “cause” for the procedural default of another claim when the ineffective-assistance claim has itself been procedurally defaulted.

I

Respondent was indicted by an Ohio grand jury for aggravated murder and aggravated robbery. He entered a guilty plea while maintaining his innocence — a procedure we held to be constitutional in North Carolina v. Alford, 400 U. S. 25 (1970)—in exchange for the prosecution’s agreement that the guilty plea could be withdrawn if the three-judge panel that accepted it elected, after a mitigation hearing, to impose the death penalty. The panel accepted respondent’s plea based on the prosecution’s recitation of the evidence supporting the charges and, following a mitigation hearing, sentenced him to life imprisonment with parole eligibility after 30 years on the aggravated-murder count and to a concurrent term of 10 to 25 years on the aggravated-robbery count. On direct appeal respondent, represented by new counsel, assigned only the single error that the evidence offered in mitigation established that he should have been eligible for parole after 20 rather than BO years. The Ohio Court of Appeals affirmed, and respondent did not appeal to the Ohio Supreme Court.

After unsuccessfully pursuing state postconviction relief pro se, respondent, again represented by new counsel, filed an application in the Ohio Court of Appeals to reopen his direct appeal, pursuant to Ohio Rule of Appellate Procedure 26(B), on the ground that his original appellate counsel was constitutionally ineffective in failing to raise on direct appeal a challenge to the sufficiency of the evidence. The appellate court dismissed the application because respondent had failed to show, as the rule required, good cause for filing after the 90-day period allowed. The Ohio Supreme Court, in a one-sentence per curiam opinion, affirmed. State v. Carpenter, 74 Ohio St. 3d 408, 659 N. E. 2d 786 (1996).

On May 3,1996, respondent filed a petition for writ of ha-beas corpus in the United States District Court for the Southern District of Ohio, alleging, inter alia, that the evidence supporting his plea and sentence was insufficient, in violation of the Fifth and Fourteenth Amendments, and that his appellate counsel was constitutionally ineffective in failing to raise that claim on direct appeal. Concluding that respondent’s sufficiency-of-the-evidence claim was procedurally defaulted, the District Court considered next whether the ineffective-assistanee-of-counsel claim could serve as cause excusing that default. The District Court acknowledged that the ineffective-assistance claim had been dismissed on procedural grounds, but concluded that Rule 26(B)’s inconsistent application by the Ohio courts rendered it inadequate to bar federal habeas review. See Ford v. Georgia, 498 U. S. 411, 423-424 (1991) (state procedural default is not an “independent and adequate state ground” barring subsequent federal review unless the state rule was “ ‘firmly established and regularly followed’ ” at the time it was applied). Proceeding to the merits of the ineffective-assistance claim, the District Court concluded that respondent’s appellate counsel was constitutionally ineffective under the test established in Strickland v. Washington, 466 U. S. 668 (1984), and granted the writ of habeas corpus conditioned on the state appellate court’s reopening of respondent’s direct appeal of the sufficiency-of-the-evidence claim.

On cross-appeals, the United States Court of Appeals for the Sixth Circuit held that respondent’s ineffeetive-assistance-of-counsel claim served as “cause” to excuse the procedural default of his sufficiency-of-the-evidence claim, whether or not the ineffective-assistance claim itself had been proeedurally defaulted. Carpenter v. Mohr, 163 F. 3d 938 (CA6 1998). In the panel’s view, it sufficed that respondent had exhausted the ineffective-assistance claim by presenting it to the state courts in his application to reopen the direct appeal, even though that application might, under Ohio law, have been time barred. Finding in addition prejudice from counsel’s failure to raise the sufficiency-of-the-evidence claim on direct appeal, the Sixth Circuit directed the District Court to issue the writ of habeas corpus conditioned upon the state court’s according respondent a new culpability hearing. We granted certiorari. 528 U. S. 985 (1999).

II

Petitioner contends that the Sixth. Circuit erred in failing to recognize that a proeedurally defaulted ineffective-assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the ha-beas petitioner can satisfy the “cause and prejudice” standard with respect to the ineffective-assistance claim itself. We agree.

The procedural default doctrine and its attendant “cause and prejudice” standard are “grounded in concerns of comity and federalism,” Coleman v. Thompson, 501 U. S. 722, 730 (1991), and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack, Murray v. Carrier, 477 U. S. 478, 490-492 (1986). “[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman, 501 U. S., at 732. We therefore require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim. Id., at 750. The one exception to that rule, not at issue here, is the circumstance in which the habeas petitioner can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice. Ibid.

Although we have not identified with precision exactly what constitutes “cause” to excuse a procedural default, we have acknowledged that in certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review in state court will suffice. Carrier, 477 U. S., at 488-489. Not just any deficiency in counsel’s performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution. Ibid. In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. And we held in Carrier that the principles of comity and federalism that underlie our longstanding exhaustion doctrine — then as now codified in the federal habeas statute, see 28 U. S. C. §§ 2254(b), (c) — require that constitutional claim, like others, to be first raised in state court. “[A] claim of ineffective assistance,” we said, generally must “be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.” Carrier, supra, at 489.

The question raised by the present case is whether Carrier’s exhaustion requirement for claims of ineffective assistance asserted as cause is uniquely immune from the procedural-default rule that accompanies the exhaustion requirement in all other contexts — whether, in other words, it suffices that the ineffective-assistance claim was “presented” to the state courts, even though it was not presented in the manner that state law requires. That is not a hard question. An affirmative answer would render Carrier’s exhaustion requirement illusory.

We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in Coleman: “In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas eases.” 501 U. S., at 732. We again considered the interplay between exhaustion and procedural default last Term in O’Sullivan v. Boerckel, 526 U. S. 838 (1999), concluding that the latter doctrine was necessary to “ ‘protect the integrity’ of the federal exhaustion rule.” Id., at 848 (quoting id., at 853 (Stevens, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by “ ‘letting the time run’ ” so that state remedies were no longer available. Id., at 848. Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have “concededly exhausted his state remedies,” it could hardly be said that, as comity and federalism require, the State had been given a “fair ‘opportunity to pass upon [his claims].’” Id., at 854 (Stevens, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 U. S. 200, 204 (1950)).

To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the eause-and-prejudiee standard with respect to that claim. Indeed, the Sixth Circuit may well conclude on remand that respondent can meet that standard in this case (although we should note that respondent has not argued that he can, preferring instead to argue that he does not have to). Or it may conclude, as did the District Court, that Ohio Rule of Appellate Procedure 26(B) does not constitute an adequate procedural ground to bar federal habeas review of the ineffective-assistance claim. We express no view as to these issues, or on the question whether respondent’s appellate counsel was constitutionally ineffective in not raising the sufficiency-of-the-evidence claim in the first place.

* * *

For the foregoing reasons, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the ease is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Breyer,

with whom Justice Stevens joins, concurring in the judgment.

I believe the Court of Appeals correctly decided the basic question: “Whether a federal habeas court is barred from considering an ineffective-assistance-of-counsel claim as ‘cause’ for the procedural default of another claim when the ineffective-assistance claim is itself proeedurally defaulted.” The question’s phrasing itself reveals my basic concern. Although the question, like the majority’s opinion, is written with clarity, few lawyers, let alone unrepresented state prisoners, will readily understand it. The reason lies in the complexity of this Court’s habeas corpus jurisprudence — a complexity that in practice can deny the fundamental constitutional protection that habeas corpus seeks to assure. Today’s decision unnecessarily adds to that complexity and cannot be reconciled with our consistent recognition that the determination of “cause” is a matter for the federal habeas judge.

To explain why this is so, and at the risk of oversimplification, I must reiterate certain elementary ground rules. A federal judge may issue a writ of habeas corpus freeing a state prisoner, if the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254(a). However, the judge may not issue the writ if an adequate and independent state-law ground justifies the prisoner’s detention, regardless of the federal claim. See Wainwright v. Sykes, 433 U. S. 72, 81-88 (1977). One “state ground” often asserted as an adequate, independent basis for holding a state prisoner in custody is a state-law “procedural default,” such as the prisoner’s failure to raise his federal claim at the proper time. However, under certain conditions the State’s assertion of such a ground is not “adequate” (and consequently does not bar assertion of the federal-law claim). There are three situations in which an otherwise valid state ground will not bar federal claims: (1) where failure to consider a prisoner’s claims will result in a “fundamental miscarriage of justice,” Coleman v. Thompson, 501 U. S. 722, 750 (1991); (2) where the state procedural rule was not “'firmly established and regularly followed,’ ” Ford v. Georgia, 498 U. S. 411, 423-424 (1991); James v. Kentucky, 466 U. S. 341, 348-349 (1984); and (3) where the prisoner had good “cause” for not following the state procedural rule and was “prejudiced] ” by not having done so, Sykes, supra, at 87.

Ordinarily, a federal habeas judge, while looking to state law to determine the potential existence of a procedural ground that might bar consideration of the prisoner’s federal claim, decides whether such a ground is adequate as a matter of federal law. See Ford, supra; James, supra; Coleman, supra. Thus the Court has applied federal standards to determine whether there has been a “fundamental miscarriage of justice.” See, e. g., Schlup v. Delo, 513 U. S. 298, 314-317 (1995). And the Court has also looked to state practice to determine the factual circumstances surrounding the application of a state procedural rule, while determining as a matter of federal law whether that rule is “firmly established [and] regularly followed.” Ford, supra, at 424-425. Federal habeas courts would normally determine whether “cause and prejudice” excuse a “procedural default” in the same manner. Murray v. Carrier, 477 U. S. 478, 489 (1986) (“[T]he question of cause” is “a question of federal law”).

If I could stop here, the rules would be complicated, but still comprehensible. The federal habeas judge would look to state law and state practice to determine the facts and circumstances surrounding a state procedural rule that the State claims is an “adequate and independent state ground.” However, the federal judge would determine the adequacy of that “state ground” as a matter of federal law.

Unfortunately, the rules have become even more complex. In Carrier, the Court considered a prisoner’s contention that he had “cause” for failing to follow a state procedural rule — a rule that would have barred his federal claim. The “cause,” in the prisoner’s view, was that his lawyer (who had failed to follow the state procedural rule) had performed inadequately. This Court determined, as a matter of federal law, that only a performance so inadequate that it violated the defendant’s Sixth Amendment right to effective assistance of counsel could amount to “cause” sufficient to overcome a “procedural default.” Id., at 488-489. That being so, the Court reasoned, the prisoner should have to exhaust the ineffectiveness claim in state court. The Court wrote:

“[I]f a petitioner could raise his ineffective assistance claim for the first time on federal habeas in order to show cause for a procedural default, the federal habeas court would find itself in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available.” Id., at 489.

And today the Court holds not only that the prisoner must exhaust this claim by presenting it to the state courts, but also that his failure to do so properly, i. e., a failure to comply with the State’s rules for doing so, bars that prisoner from ever asserting that claim as a “cause” for not having complied with state procedural rules.

The opinion in Carrier raises a special kind of “exhaustion” problem. The Court considered a type of “cause” (“ineffective assistance”) for not following the state procedural rule that happened itself independently to constitute a violation of the Federal Constitution. After all, were the prisoner to prove his claim (i e., show “ineffective assistance”), the State might want to take action first. Ordinary exhaustion rules assure States an initial opportunity to pass upon claims of violation of the Federal Constitution. Why should a State not have a similar opportunity in this situation? As the Carrier Court pointed out, it would be “anomalous” for a federal habeas court to “adjudicate] an unexhausted constitutional claim for which state court review might still be available.” Ibid.

The anomaly disappears, however, once the prisoner has exhausted his “ineffective-assistance” claim (which appeared in the guise of a “cause”). And there is no other anomaly that requires the majority’s result. Once a claim of ineffective assistance of counsel has been exhausted — either through presentation in the state courts or through procedural default — there is no difference between that claim and any other claim of “cause” for the prisoner’s original procedural default. The federal habeas court is no longer in the “anomalous position” of considering as cause an independent claim that might yet be considered by the state courts, for there is no longer any possibility that the state courts will consider the claim. There is thus no more reason to hold that procedural default of an ineffective-assistance claim bars the prisoner from raising that ineffective-assistance claim as a “cause” (excusing a different procedural default asserted as a bar to a basic constitutional claim) than there is to bar any other claim of “cause” on grounds of procedural default. The majority creates an anomaly; it does not cure one.

The added complexity resulting from the Court’s opinion is obvious. Consider a prisoner who wants to assert a federal constitutional claim (call it FCC). Suppose the State asserts as a claimed “adequate and independent state ground” the prisoner’s failure to raise the matter on his first state-court appeal. Suppose further that the prisoner replies by alleging that he had “cause” for not raising the matter on appeal (call it C). After Carrier, if that alleged “cause” (C) consists of the claim “my attorney was constitutionally ineffective,” the prisoner must have exhausted C in the state courts first. And after today, if he did not follow state rules for presenting C to the state courts, he will have lost his basic claim, FCC, forever. But, I overstate. According to the opinion of the Court, he will not necessarily have lost FCC forever if he had “cause” for not having followed those state rules (i e., the rules for determining the existence of “cause” for not having followed the state rules governing the basic claim, FCC) (call this “cause” C*). Ante, at 453. The prisoner could therefore still obtain relief if he could demonstrate the merits of C*, C, and FCC.

I concede that this system of rules has a certain logic, indeed an attractive power for those who like difficult puzzles. But I believe it must succumb to this question: Why should a prisoner, who may well be proceeding pro se, lose his basic claim because he runs afoul of state procedural rules governing the presentation to state courts of the “cause” for his not having followed state procedural rules for the presentation of his basic federal claim? And, in particular, why should that special default rule apply when the “cause” at issue is an “ineffective-assistance-of-counsel” claim, but not when it is any of the many other “causes” or circumstances that might excuse a failure to comply with state rules? I can find no satisfactory answer to these questions.

I agree with the majority, however, that this case must be returned to the Court of Appeals. Although the prisoner’s “ineffective-assistance” claim is not barred, he still must prove that the “assistance” he received was “ineffective” (or some other “cause”). And, if he does so, he still must prove his basic claim that his trial violated the Federal Constitution — all before he can secure habeas relief, I would remand for consideration of these matters.

For these reasons, I concur in the judgment.

       Rule 26(B) provides, in relevant part:
      “(1) A defendant in a criminal ease may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.”

       Respondent filed his application to reopen on July 15,1994. Although Rule 26(B) did not become effective until July 1,1993, more than two years after respondent’s direct appeal was completed, the Court of Appeals considered respondent’s time for filing to have begun on the Rule’s effective date and to have expired 90 days thereafter.

       Last Term, in a per curiam summary reversal, we clearly expressed the view that a habeas petitioner must satisfy the “cause and prejudice” standard before his procedurally defaulted ineffective-assistance claim will excuse the default of another claim. Stewart v. LaGrand, 526 U. S. 115, 120 (1999). Respondent contends that we are not bound by LaGrand because in that case the habeas petitioner had waived his ineffective-assistance claim in the District Court, thereby rendering our procedural default discussion dicta, and because, in any event, per curiam opinions decided without the benefit of full briefing or oral argument are of little precedential value. Whether our procedural default analysis in LaGrand is properly characterized as dictum or as alternative holding, and whatever the precedential value of a per curiam opinion, the ease with which we so recently resolved this identical question reflects the degree to which the proper resolution flows irresistibly from our precedents.


author: Justice Ginsburg

text:
    NELSON v. ADAMS USA, INC., et al.
    No. 99-502.
    Argued March 27, 2000
    Decided April 25, 2000

      Ginsburg, J., delivered the opinion for a unanimous Court.

      Debra J. Dixon argued the cause for petitioner. With her on the briefs was James L. Deese.

      Jack Allen Wheat argued the cause for respondents. With him on the brief were Vance Armentrout Smith, Joel Thomas Beres, and John William Scruton.

   Justice Ginsburg

delivered the opinion of the Court.

This litigation began when Ohio Cellular Products Corporation (OCP) sued respondent Adams USA, Inc. (Adams), claiming patent infringement. The District Court eventually dismissed OCP’s claim and ordered OCP to pay Adams’ costs and attorney fees. Adams feared that OCP might be unable to pay the fee award and therefore sought a means to recover from petitioner Nelson, president and sole shareholder of OCP, in his individual capacity. In pursuit of that objective, Adams moved under Rule 15 of the Federal Rules of Civil Procedure to amend its pleading to add Nelson as a party; Adams also asked the court, under Rule 59(e), to amend the fee award. The District Court granted the motion in full, simultaneously making Nelson a party and subjecting him to judgment. The Court of Appeals affirmed. We hold that the District Court erred in amending the judgment immediately upon permitting amendment of the pleading. Due process, as reflected in Rule 15 as well as Rule 12, required that Nelson be given an opportunity to respond and contest his personal liability for the award after he was made a party and before the entry of judgment against him.

I

OCP and its successor corporation held two patents relating to the method of manufacturing a foamed padding used in athletic equipment. In 1994, OCP sued Adams for infringement. Adams maintained that the patents had been anticipated by prior art and were therefore invalid under 35 U. S. C. § 102(b). The District Court ruled in Adams’ favor and dismissed the infringement complaint.

Adams then moved for attorney fees and costs. The District Court granted the motion on the ground that Nelson, who was at all relevant times president and sole shareholder of OCP, had deceitfully withheld the prior art from the United States Patent and Trademark Office. This behavior, the District Court concluded, constituted inequitable conduct chargeable to OCP. On January 20,1998, the District Court awarded Adams costs and fees in the amount of $178,888.51 against OCP.

Adams feared, however, that it would be unable to collect the award. This was an altogether understandable concern; it stemmed from a letter OCP’s counsel had sent Adams warning that OCP would be liquidated if exposed to a judgment for fees more than nominal in amount. Adams therefore moved to amend its pleading to add Nelson, personally, as a party from whom fees could be collected. In this post-judgment endeavor, Adams reasoned that Nelson was the flesh-and-blood party behind OCP, the person whose conduct in withholding prior art precipitated the fee award, and a person with funds sufficient to satisfy that award. The District Court granted the motion.

Adams’ motion, however, sought more than permission to amend the pleading. It sought simultaneously an amended judgment, subjecting Nelson to liability as soon as he was made a party. See Record, Doc. No. 126, p. 1 (“Defendants [i. e., Adams] hereby move the Court... for an order granting Defendants leave to amend their third party complaint to name Donald E. Nelson (Nelson) as a third party defendant in his individual capacity, and amending the judgment in this action to include Nelson as an additional party against whom judgment is entered.”). In presenting the motion, Adams offered no reason why the judgment should be altered immediately. See id., at 7-8. The motion did contend that an amendment to the judgment was “necessary to prevent manifest injustice,” id., at 8 (internal quotation marks omitted), but it did not explain why Nelson, once joined as a party, should not be permitted to state his side of that argument. The District Court seems not to have paused over this question, for it allowed the pleading amendment and altered the judgment at a single stroke. Record, Doc. No. 131. The memorandum explaining the District Court’s decision addressed only the propriety of adding Nelson as a party. It did not address the propriety of altering the judgment at the very same time. Record, Doc. No. 130, at 3-7.

The Court of Appeals for the Federal Circuit affirmed the amended judgment against Nelson. Ohio Cellular Prods. Corp. v. Adams USA, Inc., 175 F. 3d 1343 (1999). It was “uncommon,” the appeals court acknowledged, to add a party after the entry of judgment. Id., at 1348. The court con-eluded, however, that Nelson had not been prejudiced by the postjudgment joinder. The Federal Circuit based that conclusion on Nelson’s failure to show that “anything different or additional would have been done” to stave off the judgment had Nelson been a party, in his individual capacity, from the outset of the litigation. Id., at 1351. The panel, over a vigorous dissent by Judge Newman, was apparently satisfied that adding Nelson as a party and simultaneously amending the judgment to obligate him individually met due process requirements. See id., at 1345,1349, n. 5.

We granted certiorari, 528 U. S. 1018 (1999). In his request for this Court’s review, Nelson did not dispute the portion of the District Court’s order that granted Adams leave to amend its pleading to add Nelson as a party against whom costs and fees were sought. Pet. for Cert. 11. What he does challenge, and what is now before us, is the portion of the District Court’s order that immediately adjudged Nelson personally liable the moment he was made a party.

II

A

The Federal Rules of Civil Procedure are designed to farther the due process of law that the Constitution guarantees. Cf. Fed. Rule Civ. Proc. 1 (Rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.”). Rule 15 sets out the requirements for amended and supplemental pleadings. On that score, the Court of Appeals observed that as long as no undue prejudice is shown, “due process requirements are met if the requirements of Rule 15 are met.” 175 F. 3d, at 1349, n. 5. But in the instant case, the requirements of Rule 15 were not met. As Judge Newman recognized in her dissent, below, due process does not countenance such swift passage from pleading to judgment in the pleader’s favor. See id., at 1352.

The propriety of allowing a pleading alteration depends not only on the state of affairs prior to amendment but also on what happens afterwards. Accordingly, Rule 15 both conveys the circumstances under which leave to amend shall be granted and directs how the litigation will move forward following an amendment. When a court grants leave to amend to add an adverse party after the time for responding to the original pleading has lapsed, the party so added is given “10 days after service of the amended pleading” to plead in response. Fed. Rule Civ. Proc. 15(a). This opportunity to respond, fundamental to due process, is the echo of the opportunity to respond to original pleadings secured by Rule 12. See Fed. Rule Civ. Proc. 12(a)(1). Thus, Rule 15 assumes an amended pleading will be filed and anticipates service of that pleading on the adverse party.

Nelson was never served with an amended pleading. Indeed, no such pleading was ever actually composed and filed in court. Nor, after the amendment naming him as a party, was Nelson accorded 10 days to state his defenses against personal liability for costs and fees. Instead, judgment was entered against him the moment permission to amend the pleading was granted. Appeal after judgment, in the circumstances this case presents, did not provide an adequate opportunity to defend against the imposition of liability. Cf. American Surety Co. v. Baldwin, 287 U. S. 156 (1932). Adams points to nothing in the record indicating that Nelson affirmatively relinquished his right to respond on the merits of the case belatedly stated against him in his individual capacity. Accordingly, the proceedings did not comply with Rule 15, and neither did they comport with due process. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950) (“ ‘The fundamental requisite of due process of law is the opportunity to be heard.’ ”) (quoting Grannis v. Ordean, 234 U. S. 385, 394 (1914)).

It is true that Nelson knew as soon as Adams moved to amend the pleading and alter the judgment that he might ultimately be subjected to personal liability. One could ask, therefore, whether Nelson in fact had a fair chance, before alteration of the judgment, to respond and be heard. Rule 15 and the due process for which it provides, however, demand a more reliable and orderly course. First, as the Rule indicates, pleading in response to an amended complaint is a prerogative of parties, see Fed. Rule Civ. Proc. 15(a), and Nelson was not a party prior to the District Court’s ruling on Adams’ motion to amend. Second, as Rule 15 further prescribes, the clock on an added party’s time to respond does not start running until the new pleading naming that party is served, see ibid., just as the clock on an original party’s time to respond does not start running until the original pleading is served, see Fed. Rule Civ. Proc. 12(a)(1)(A). This is not to say that Rule 15 is itself a constitutional requirement. Beyond doubt, however, a prospective party cannot fairly be required to answer an amended pleading not yet permitted, framed, and served.

In support of its holding that Nelson was not prejudiced when added as a party and subjected to judgment, the Federal Circuit relied on its prior decision in Fromson v. Citiplate, Inc., 886 F. 2d 1300 (1989). See 175 R. 3d, at 1349-1350, and n. 7. The reliance is puzzling, for the circumstances in Fromson were crucially different from those presented here. The plaintiff in Fromson prevailed on an infringement claim and subsequently moved to hold the owners of the judgment-proof defendant corporation individually liable. To that extent only, Fromson resembles the instant case. Notably unlike Adams, however, the plaintiff in Fromson had moved before trial to add the individual owners as parties, because it suspected from the start that the defendant corporation might not be able to pay. The District Court denied that motion in reliance on the defendant corporation’s false assurances that it was solvent. See 886 F. 2d, at 1301, 1304. Having been informed before trial that the plaintiffs sought to sue them in their individual capacities, and having acted deliberately to derail such a suit, the owners of the defendant corporation in Fromson could hardly assert that another’s mistake or choice of whom to sue had compromised their ability to defend. Their problem, the Federal Circuit aptly observed in its Fromson opinion, was “a bed of their own making.” Id., at 1304.. Here, in contrast, Adams never sought to sue Nelson individually until after judgment was entered against OCP. Nor is there any indication that Adams initially sought relief solely against OCP because of some false assurance regarding OOP’s solvency

To summarize, Nelson was never afforded a proper opportunity to respond to the claim against him. Instead, he was adjudged liable the very first moment his personal liability was legally at issue. Procedure of this style has been questioned even in systems, real and imaginary, less concerned than ours with the right to due process.

B

Adams strongly urges, however, that Nelson waived his objections to the swift process of the District Court. Adams first maintains that Nelson waived arguments based on personal jurisdiction and the absence of service of process by failing to raise them promptly after being added as a party. Brief for Respondents 82-41. Nelson’s winning argument, however, is based neither on personal jurisdiction nor on service of process. It rests on his right to have time and opportunity to respond to the claim once Adams gained leave to sue Nelson in his individual capacity, and thereby to reach beyond OOP’s corporate till into Nelson’s perspnal pocket. Waiver of arguments based on personal jurisdiction and service of process is therefore beside the point.

In a similar vein, and this time coming closer to the dis-positive issue, Adams submits that the Federal Circuit “did not address the ‘due process’ issues now sought to be presented, . . . because these issues were never raised by Petitioner” before that court. Id., at 47 (emphasis deleted). It is indeed the general rule that issues must be raised in lower courts in order to be preserved as potential grounds of decision in higher courts. But this principle does not demand the incantation of particular words; rather, it requires that the lower court be fairly put on notice as to the substance of the issue. See, e. g., Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 174-175 (1988). And the general rule does not prevent us from declaring what due process requires in this case, for that matter was fairly before the Court of Appeals.

In response to questioning from the appellate bench, Nelson’s counsel explained that the core of his client’s argument was the fundamental unfairness of imposing judgment without going through the process of litigation our rules of civil procedure prescribe. Both the majority and the dissent in the Federal Circuit understood that an issue before them concerned the process due after Adams’ postjudgment motion. See 175 F. Bd, at 1349, n. 5 (majority opinion); id., at 1B52 (Newman, J., dissenting). Our resolution of the case as a matter of due process therefore rests on a ground considered and passed upon by the court below.

Beneath Adams’ technical and ultimately unavailing arguments about waiver, its essential position in the litigation is reflected in the Federal Circuit’s decision: There was sufficient identity between Nelson and OCP to bind Nelson, without further ado, to a judgment already entered against OCP. Nelson was president and sole shareholder of OCP. See id., at 1346. It was Nelson who withheld prior art from the Patent Office. See id., at 1349. He had actual notice that Adams was seeking to collect a fee award from OCP, because he was the “effective controller” of the litigation for OCP and personally participated as a witness at the hearing on whether OCP had engaged in inequitable conduct. See ibid.

The Federal Circuit did not conclude that these factors would have justified imposing liability on Nelson by piercing OOP’s corporate veil, see id., at 1349, n. 6, and Adams, for its part, has disavowed reliance on a veil-piercing theory, see Record, Doc. No. 129, at 3 (stating, before the District Court, that “Adams does not request that the Court ‘disregard the corporate form’ ”); Tape of Oral Arg. in No. 98-1448 (CA Fed. Feb. 3, 1999) (expressly stating that this case does not concern piercing the corporate veil). One-person corporations are authorized by law and should not lightly be labeled sham. See, e. g., Gregory v. Helvering, 293 U. S. 465, 469 (1935) (finding corporation a sham not because it was owned entirely by one person, but because it had “no business or corporate purpose”); Kirno Hill Corp. v. Holt, 618 F. 2d 982, 985 (CA2 1980) (a corporation’s veil may not be pierced merely because it has only one owner). Indeed, where patents are concerned, the one-person corporation may be an altogether appropriate means to permit innovation without exposing inventors to possibly ruinous consequences. The legitimacy of OOP as a corporation, in short, is not at issue in this case.

Instead, the Federal Circuit reasoned that nothing much turned on whether the party opposing Adams’ claim for costs and fees was OCP or Nelson. “[N]o basis has been advanced,” the panel majority concluded, “to believe anything different or additional would have been done to defend against the allegation of inequitable conduct had Nelson individually already been added as a party or had he been a party from the outset.” 175 F. 3d, at 1351. We neither dispute nor endorse the substance of this speculation. We say instead that judicial predictions about the outcome of hypothesized litigation cannot substitute for the actual opportunity to defend that due process affords every party against whom a claim is stated. As Judge Newman wrote in dissent: “The law, at its most fundamental, does not render judgment simply because a person might have been found liable had he been charged.” Id., at 1354.

Our decision surely does not insulate Nelson from liability. As counsel twice represented at oral argument, see Tr. of Oral Arg. 9, 19-20, Nelson seeks only the right to contest on the merits his personal liability for fees originally sought and awarded solely against OCR That right, we hold, is just what due process affords him.

* * *

For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Even when an amendment relates back to the original date of pleading under Rule 15(c), as Adams contends its amendment does, the relation back cannot, consistently with due process, deny a party all opportunity to be heard in response to the amendment. We also note in this regard that the instant case does not fall under Rule 15(c)(3), which deals with amendments that change the party or the name of the party against whom claims are asserted. That subsection applies only in cases involving “a mistake concerning the identity of the proper party.” Fed. Rule Civ. Proc. 15(c)(3)(B). Respondent Adams made no such mistake. It knew of Nelson’s role and existence and, until it moved to amend its pleading, chose to assert its claim'for costs and fees only against OGP.

       A well-known work offers this example:
      “ ‘Herald, read the accusation!’ said the King.
      On this the White Rabbit blew three blasts on the trumpet, and then unrolled the parchment scroll, and read as follows:

        ‘The Queen of Hearts, she made some tarts,

        All on a summer day:

        The Knave of Hearts, he stole those tarts,

        And took them quite away!’

      ‘Consider your verdict,’ the King said to the jury.
      ‘Not yet, not yet!’ the Rabbit interrupted. ‘There’s a great deal to come before that!’” L. Carroll, Alice in Wonderland and Through the Looking Glass 108 (Messner 1982) (emphasis in original).

       We note that a waiver of service of process does not waive a party’s right to time in which to respond to the substance of charges that, absent the waiver, would have been included in a served document. It would make little sense to penalize a party’s waiver of process, which can help streamline litigation, by barring such a party from stating its side of the case. Indeed, such waiver can sometimes extend a party’s time to respond. See Fed. Rule Civ. Proc. 12(a)(1)(B) (rather than having to respond within 20 days of service, a party waiving service may respond at any time within 60 days of the request for waiver).

       Nelson’s counsel stated his position as follows: “[I]t’s legally -wrong to subject the individual, nonserved, nonsued, nonlitigated-against person to liability for that judgment. Because there are rules. The rules say if you want a judgment against somebody, you sue them, you litigate against them, you get a judgment against them.” Tape of Oral Arg. in No. 98-1448 (CA Fed. Feb. 3, 1999).

       Once the amended pleading is served and Nelson’s response is submitted, it will be open to Adams to urge, as Adams prematurely does here, Brief for Respondents 22-28, that issue preclusion (collateral estoppel) bars Nelson from contesting findings made during the litigation between OOP and Adams. See Restatement (Second) of Judgments §39 (1980). We venture no opinion here about the possible success of such an argument, made at the proper time.