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




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


No. 89-7024



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

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

[April 16, 1991]



    Justice Kennedy delivered the opinion of the Court.

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

I
    McCleskey and three other men, all armed, robbed a Georgia furniture
store in 1978.  One of the robbers shot and killed an off duty policeman
who entered the store in the midst of the crime.  McCleskey confessed to
the police that he participated in the robbery.  When on trial for both the
robbery and the murder, however, McCleskey renounced his confession after
taking the stand with an alibi denying all involvement.  To rebut
McCleskey's testimony, the prose cution called Offie Evans, who had
occupied a jail cell next to McCleskey's.  Evans testified that McCleskey
admitted shooting the officer during the robbery and boasted that he would
have shot his way out of the store even in the face of a dozen policemen.
    Although no one witnessed the shooting, further direct and
circumstantial evidence supported McCleskey's guilt of the murder.  An
eyewitness testified that someone ran from the store carrying a
pearl-handled pistol soon after the robbery.  Other witnesses testified
that McCleskey earlier had stolen a pearl-handled pistol of the same
caliber as the bullet that killed the officer.  Ben Wright, one of
McCleskey's accomplices, confirmed that during the crime McCleskey carried
a white-handled handgun matching the caliber of the fatal bullet.  Wright
also testified that McCleskey admitted shooting the officer.  Finally, the
prosecutor introduced McCleskey's confession of participation in the
robbery.
    In December 1978, the jury convicted McCleskey of murder and sentenced
him to death.  Since his conviction, Mc Cleskey has pursued direct and
collateral remedies for more than a decade.  We describe this procedural
history in detail, both for a proper understanding of the case and as an
illustration of the context in which allegations of abuse of the writ
arise.
    On direct appeal to the Supreme Court of Georgia, McCles key raised six
grounds of error.  A summary of McCleskey's claims on direct appeal, as
well as those he asserted in each of his four collateral proceedings, is
set forth in the Appendix to this opinion, infra.  The portion of the
appeal relevant for our purposes involves McCleskey's attack on Evans'
rebuttal testimony.  McCleskey contended that the trial court "erred in
allowing evidence of [McCleskey's] oral statement admitting the murder made
to [Evans] in the next cell, because the prosecutor had deliberately
withheld such statement" in vio lation of Brady v. Maryland, 373 U. S. 83
(1963).  McClesky v. State, 245 Ga. 108, 112, 263 S. E. 2d 146, 149 (1980).
A unanimous Georgia Supreme Court acknowledged that the prosecutor did not
furnish Evans' statement to the defense, but ruled that because the
undisclosed evidence was not exculpatory, McCleskey suffered no material
prejudice and was not denied a fair trial under Brady.  245 Ga., at
112-113, 263 S. E. 2d, at 149.  The court noted, moreover, that the
evidence McCleskey wanted to inspect was "introduced to the jury in its
entirety" through Evans' testimony, and that Mc Cleskey's argument that
"the evidence was needed in order to prepare a proper defense or impeach
other witnesses ha[d] no merit because the evidence requested was
statements made by [McCleskey] himself."  Ibid.  The court rejected
McCleskey's other contentions, and affirmed his conviction and sentence.
Ibid.  We denied certiorari.  McClesky v. Georgia, 449 U. S. 891 (1980).
    McCleskey then initiated postconviction proceedings.  In January 1981,
he filed a petition for state habeas corpus relief.  The amended petition
raised 23 challenges to his murder conviction and death sentence.  See
Appendix, infra.  Three of the claims concerned Evans' testimony.  First,
Mc Cleskey contended that the State violated his due process rights under
Giglio v. United States, 405 U. S. 150 (1972), by its failure to disclose
an agreement to drop pending escape charges against Evans in return for his
cooperation and testimony.  App. 20.  Second, McCleskey reasserted his
Brady claim that the State violated his due process rights by the
deliberate withholding of the statement he made to Evans while in jail.
Id., at 21.  Third, McCleskey alleged that admission of Evans' testimony
violated the Sixth Amendment right to counsel as construed in Massiah v.
United States, supra.  On this theory, "[t]he introduction into evidence of
[his] statements to [Evans], elicited in a situation created to induce
[McCleskey] to make incriminating statements without the assistance of
counsel, violated [McCleskey's] right to counsel under the Sixth Amendment
to the Constitution of the United States."  App. 22.
    At the state habeas corpus hearing, Evans testified that one of the
detectives investigating the murder agreed to speak a word on his behalf to
the federal authorities about certain federal charges pending against him.
The state habeas court ruled that the ex parte recommendation did not
implicate Giglio, and it denied relief on all other claims.  The Supreme
Court of Georgia denied McCleskey's application for a certificate of
probable cause, and we denied his second petition for a writ of certiorari.
McCleskey v. Zant, 454 U. S. 1093 (1981).
    In December 1981, McCleskey filed his first federal habeas corpus
petition in the United States District Court for the Northern District of
Georgia, asserting 18 grounds for relief.  See Appendix, infra.  The
petition failed to allege the Mas siah claim, but it did reassert the
Giglio and Brady claims.  Following extensive hearings in August and
October 1983, the District Court held that the detective's statement to
Evans was a promise of favorable treatment, and that failure to disclose
the promise violated Giglio.  McCleskey v. Zant, 580 F. Supp. 338, 380-384
(ND Ga. 1984).  The District Court further held that Evans' trial testimony
may have affected the jury's verdict on the charge of malice murder.  On
these premises it granted relief.  Id., at 384.
    The Court of Appeals reversed the District Court's grant of the writ.
McCleskey v. Kemp, 753 F. 2d 877 (CA11 1985).  The court held that the
State had not made a promise to Evans of the kind contemplated by Giglio,
and that in any event the Giglio error would be harmless.  753 F. 2d, at
884-885.  The court affirmed the District Court on all other grounds.  We
granted certiorari limited to the question whether Georgia's capital
sentencing procedures were constitutional, and denied relief.  481 U. S.
279 (1987).
    McCleskey continued his postconviction attacks by filing a second state
habeas corpus action in 1987 which, as amended, contained five claims for
relief.  See Appendix, infra.  One of the claims again centered on Evans'
testimony, alleging the State had an agreement with Evans that it had
failed to disclose.  The state trial court held a hearing and dismissed the
petition.  The Supreme Court of Georgia denied McCles key's application for
a certificate of probable cause.
    In July 1987, McCleskey filed a second federal habeas action, the one
we now review.  In the District Court, McCles key asserted seven claims,
including a Massiah challenge to the introduction of Evans' testimony.  See
Appendix, infra.  McCleskey had presented a Massiah claim, it will be
recalled, in his first state habeas action when he alleged that the
conversation recounted by Evans at trial had been "elicited in a situation
created to induce" him to make an incriminating statement without the
assistance of counsel.  The first federal petition did not present a
Massiah claim.  The proffered basis for the Massiah claim in the second
federal petition was a 21-page signed statement that Evans made to the
Atlanta Police Department on August 1, 1978, two weeks before the trial
began.  The department furnished the document to McCleskey one month before
he filed his second federal petition.
    The statement related pretrial jailhouse conversations that Evans had
with McCleskey and that Evans overheard between McCleskey and Bernard
Dupree.  By the statement's own terms, McCleskey participated in all the
reported jailcell conversations.  Consistent with Evans' testimony at
trial, the statement reports McCleskey admitting and boasting about the
murder. It also recounts that Evans posed as Ben Wright's uncle and told
McCleskey he had talked with Wright about the robbery and the murder.
    In his second federal habeas petition, McCleskey asserted that the
statement proved Evans "was acting in direct concert with State officials"
during the incriminating conversations with McCleskey, and that the
authorities "deliberately elicited" incuplatory admissions in violation of
McCleskey's Sixth Amendment right to counsel.  Massiah v. United States,
377 U. S., at 206.  1 Tr. Exh. 1, pp. 11-12.  Among other responses, the
State of Georgia contended that Mc Cleskey's presentation of a Massiah
claim for the first time in the second federal petition was an abuse of the
writ.  28 U. S. C. MDRV 2244(b); Rule 9(b) of the Rules Governing MDRV 2254
Cases.
    The District Court held extensive hearings in July and August 1987
focusing on the arrangement the jailers had made for Evans' cell assignment
in 1978.  Several witnesses denied that Evans had been placed next to
McCleskey by design or instructed to overhear conversations or obtain
statements from McCleskey.  McCleskey's key witness was Ulysses Worthy, a
jailer at the Fulton County Jail during the summer of 1978.  McCleskey's
lawyers contacted Worthy after a detective testified that the 1978 Evans
statement was taken in Worthy's office.  The District Court characterized
Worthy's testimony as "often confused and self-contradictory."  McCleskey
v. Kemp, No. C87-1517A (ND Ga. Dec. 23, 1987), App. 81.  Worthy testified
that someone at some time requested permission to move Evans near
McCleskey's cell.  He contradicted himself, however, concerning when, why,
and by whom Evans was moved, and about whether he overheard investigators
urging Evans to engage McCleskey in conversation.  Id., at 76-81.
    On December 23, 1987, the District Court granted McCles key relief
based upon a violation of Massiah.  Id., at 63-97.  The court stated that
the Evans statement "contains strong indication of an ab initio
relationship between Evans and the authorities."  Id., at 84.  In addition,
the court credited Worthy's testimony suggesting that the police had used
Evans to obtain incriminating information from McCleskey.  Based on the
Evans statement and portions of Worthy's testimony, the District Court
found that the jail authorities had placed Evans in the cell adjoining
McCleskey's "for the purpose of gathering incriminating information"; that
"Evans was probably coached in how to approach McCleskey and given critical
facts unknown to the general public"; that Evans talked with McCleskey and
eavesdropped on McCles key's conversations with others; and that Evans
reported what he had heard to the authorities.  Id., at 83.  These
findings, in the District Court's view, established a Massiah violation.
    In granting habeas relief, the District Court rejected the State's
argument that McCleskey's assertion of the Massiah claim for the first time
in the second federal petition constituted an abuse of the writ.  The court
ruled that McCleskey did not deliberately abandon the claim after raising
it in his first state habeas petition.  "This is not a case," the District
Court reasoned, "where petitioner has reserved his proof or deliberately
withheld his claim for a second petition."  Id., at 84.  The District Court
also determined that when McCles key filed his first federal petition, he
did not know about either the 21-page Evans document or the identity of
Worthy, and that the failure to discover the evidence for the first federal
petition "was not due to [McCleskey's] inexcusable neglect."  Id., at 85.
    The Eleventh Circuit reversed, holding that the District Court abused
its discretion by failing to dismiss McCleskey's Massiah claim as an abuse
of the writ.  McCleskey v. Zant, 890 F. 2d 342 (CA11 1989).  The Court of
Appeals agreed with the District Court that the petitioner must "show that
he did not deliberately abandon the claim and that his failure to raise it
[in the first federal habeas proceeding] was not due to inexcusable
neglect."  Id., at 346-347.  Accepting the District Court's findings that
at the first petition stage Mc Cleskey knew neither the existence of the
Evans statement nor the identity of Worthy, the court held that the
District Court "misconstru[ed] the meaning of deliberate abandonment."
Id., at 348-349.  Because McCleskey included a Massiah claim in his first
state petition, dropped it in his first federal petition, and then
reasserted it in his second federal petition, he "made a knowing choice not
to pursue the claim after having raised it previously" that constituted a
prima facie showing of "deliberate abandonment."  890 F. 2d, at 349.  The
court further found the State's alleged concealment of the Evans statement
irrelevant because it "was simply the catalyst that caused counsel to
pursue the Massiah claim more vigorously" and did not itself "demonstrate
the existence of a Massiah violation."  Id., at 350.  The court concluded
that McCleskey had presented no reason why counsel could not have
discovered Worthy earlier.  Ibid.  Finally, the court ruled that
McCleskey's claim did not fall within the ends of justice exception to the
abuse of the writ doctrine because any Massiah violation that may have been
committed would have been harmless error.  890 F. 2d, at 350-351.
    McCleskey petitioned this Court for a writ of certiorari, alleging
numerous errors in the Eleventh Circuit's abuse of the writ analysis.  In
our order granting the petition, we requested the parties to address the
following additional question: "Must the State demonstrate that a claim was
deliberately abandoned in an earlier petition for a writ of habeas corpus
in order to establish that inclusion of that claim in a subsequent habeas
petition constitutes abuse of the writ?"  496 U. S. --- (1990).

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

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

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

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


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


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

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


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

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


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

"Thus, for example, if a prisoner deliberately withholds one of two grounds
for federal collateral relief at the time of filing his first application,
in the hope of being granted two hearings rather than one or for some other
such reason, he may be deemed to have waived his right to a hearing on a
second application presenting the withheld ground.  The same may be true
if, as in Wong Doo, the prisoner deliberately abandons one of his grounds
at the first hearing.  Nothing in the traditions of habeas corpus requires
the federal courts to tolerate needless, piecemeal litigation, or to
entertain collateral proceedings whose only purpose is to vex, harass, or
delay."  Id., at 18.


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

    "(b) When after an evidentiary hearing on the merits of a material
factual issue, or after a hearing on the merits of an issue of law, a
person in custody pursuant to the judgment of a State court has been denied
by a court of the United States or a justice or judge of the United States
release from custody or other remedy on an ap plication for a writ of
habeas corpus, a subsequent ap plication for a writ of habeas corpus on
behalf of such person need not be entertained by a court of the United
States or a justice or judge of the United States unless the application
alleges and is predicated on a factual or other ground not adjudicated on
the hearing of the earlier application for the writ, and unless the court,
justice, or judge is satisfied that the applicant has not on the earlier
application deliberately withheld the newly asserted ground or otherwise
abused the writ."  28 U. S. C. MDRV 2244(b).


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

"A second or successive petition may be dismissed if the judge finds that
it fails to allege new or different grounds for relief and the prior
determination was on the merits or, if new and different grounds are
alleged, the judge finds that the failure of the petitioner to assert those
grounds in a prior petition constituted an abuse of the writ."  28 U. S. C.
MDRV 2254 Rule 9(b).


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

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

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


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

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

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


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

    Affirmed.


89-7024 -- APPENDIX


McCLESKEY v. ZANT



89-7024 -- APPENDIX


McCLESKEY v. ZANT




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

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

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

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