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NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
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No. 91-6382
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ROBERT WAYNE SAWYER, PETITIONER v. JOHN
WHITLEY, WARDEN
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 22, 1992]

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