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- Subject: 89-7024 -- DISSENT, McCLESKEY v. ZANT
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- 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 Marshall, with whom Justice Blackmun and Justice Stevens join,
- dissenting.
- Today's decision departs drastically from the norms that inform the
- proper judicial function. Without even the most casual admission that it
- is discarding longstanding legal principles, the Court radically redefines
- the content of the "abuse of the writ" doctrine, substituting the
- strict-liability "cause and prejudice" standard of Wainwright v. Sykes, 433
- U. S. 72 (1977), for the good-faith "deliberate abandonment" standard of
- Sanders v. United States, 373 U. S. 1 (1963). This doctrinal innovation,
- which repudiates a line of judicial decisions codified by Congress in the
- governing statute and procedural rules, was by no means foreseeable when
- the petitioner in this case filed his first federal habeas application.
- Indeed, the new rule announced and applied today was not even requested by
- respondent at any point in this litigation. Finally, rather than remand
- this case for reconsideration in light of its new standard, the majority
- performs an independent reconstruction of the record, disregarding the
- factual findings of the District Court and applying its new rule in a
- manner that encourages state officials to conceal evidence that would
- likely prompt a petitioner to raise a particular claim on habeas. Because
- I cannot acquiesce in this unjustifiable assault on the Great Writ, I
- dissent.
-
- I
- Disclaiming innovation, the majority depicts the "cause and prejudice"
- test as merely a clarification of existing law. Our decisions, the
- majority explains, have left "[m]uch confusion . . . on the standard for
- determining when a petitioner abuses the writ." Ante, at 8. But amidst
- this "confusion," the majority purports to discern a trend toward the
- causeand-prejudice standard and concludes that this is the rule that best
- comports with "our habeas corpus precedents," ante, at 21; see ante, at 26,
- and with the "complex and evolving body of equitable principles" that have
- traditionally defined the abuse-of-the-writ doctrine, id., at 20. This
- attempt to gloss over the break between today's decision and established
- precedents is completely unconvincing.
- Drawing on the practice at common law in England, this Court long ago
- established that the power of a federal court to entertain a second or
- successive petition should turn not on "the inflexible doctrine of res
- judicata" but rather on the exercise of "sound judicial discretion guided
- and controlled by a consideration of whatever has a rational bearing on the
- subject." Wong Doo v. United States, 265 U. S. 239, 240-241 (1924);
- accord, Salinger v. Loisel, 265 U. S. 224, 230-232 (1924). Thus, in Wong
- Doo, the Court held that the District Court acted within its discretion in
- dismissing a petition premised on a ground that was raised but expressly
- abandoned in an earlier petition. "The petitioner had full opportunity,"
- the Court explained, "to offer proof [of the abandoned ground] at the
- hearing on the first petition; and, if he was intending to rely on that
- ground, good faith required that he produce the proof then." 265 U. S., at
- 241. Noting that the evidence supporting the abandoned ground had been
- "accessible all the time," the Court inferred that petitioner, an alien
- seeking to forestall his imminent deportation, had split his claims in
- order to "postpone the execution of the [deportation] order." Ibid.
- In Price v. Johnston, 334 U. S. 266 (1948), in contrast, the Court held
- that the District Court abused its discretion by summarily dismissing a
- petition that raised a claim not asserted in any of three previous
- petitions filed by the same prisoner. Whereas it had been clear from the
- record that the petitioner in Wong Doo had possessed access to the facts
- supporting his abandoned claim, the District Court in Price had no basis
- for assuming that the prisoner had "acquired no new or additional
- information since" the disposition of his earlier petitions. Id., at 290.
- "[E]ven if it [had been] found that petitioner did have prior knowledge of
- all the facts concerning the allegation in question," the Court added, the
- District Court should not have dismissed the petition before affording the
- prisoner an opportunity to articulate "some justifiable reason [why] he was
- previously unable to assert his rights or was unaware of the significance
- of relevant facts." Id., at 291.
- In Sanders v. United States, 373 U. S. 1 (1963), the Court crystallized
- the various factors bearing on a district court's discretion to entertain a
- successive petition. {1} The Court in Sanders distinguished successive
- petitions raising previously asserted grounds from those raising previously
- unasserted grounds. With regard to the former class of petitions, the
- Court explained, the district court may give "[c]ontrolling weight . . . to
- [the] denial of a prior application" unless "the ends of justice would . .
- . be served by reaching the merits of the subsequent application." Id., at
- 15. With regard to the latter, however, the district court must reach the
- merits of the petition unless "there has been an abuse of the writ . . . ."
- Id., at 17. In determining whether the omission of the claim from the
- previous petition constitutes an abuse of the writ, the judgment of the
- district court is to be guided chiefly by the " `[equitable] principle that
- a suitor's conduct in relation to the matter at hand may disentitle him to
- the relief he seeks.' " Ibid., quoting Fay v. Noia, 372 U. S. 391, 438
- (1963).
-
-
- "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." 373 U. S., at 18.
-
-
- What emerges from Sanders and its predecessors is essentially a
- good-faith standard. As illustrated by Wong Doo, the principal form of bad
- faith that the "abuse of the writ" doctrine is intended to deter is the
- deliberate abandonment of a claim the factual and legal basis of which are
- known to the petitioner (or his counsel) when he files his first petition.
- The Court in Sanders stressed this point by equating its analysis with that
- of Fay v. Noia, supra, which established the then-prevailing "deliberate
- bypass" test for the cognizability of claims on which a petitioner
- procedurally defaulted in state proceedings. See 373 U. S., at 18. A
- petitioner also abuses the writ under Sanders when he uses the writ to
- achieve some end other than expeditious relief from unlawful confinement --
- such as "to vex, harass, or delay." However, so long as the petitioner's
- previous application was based on a goodfaith assessment of the claims
- available to him, see Price v. Johnston, supra, at 289; Wong Doo, supra, at
- 241; the denial of the application does not bar the petitioner from
- availing himself of "new or additional information," Price v. Johnston,
- supra, at 290, in support of a claim not previously raised. Accord,
- Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427.
- "Cause and prejudice" -- the standard currently applicable to
- procedural defaults in state proceedings, see Wainwright v. Sykes, 433 U.
- S. 72 (1977) -- imposes a much stricter test. As this Court's precedents
- make clear, a petitioner has cause for failing effectively to present his
- federal claim in state proceedings only when "some objective factor
- external to the defense impeded counsel's efforts to comply with the
- State's procedural rule . . . ." Murray v. Carrier, 477 U. S. 478, 488
- (1986). Under this test, the state of mind of counsel is largely
- irrelevant. Indeed, this Court has held that even counsel's reasonable
- perception that a particular claim is without factual or legal foundation
- does not excuse the failure to raise that claim in the absence of an
- objective, external impediment to counsel's efforts. See Smith v. Murray,
- 477 U. S. 527, 535-536 (1986). In this sense, the cause component of the
- Wainwright v. Sykes test establishes a strictliability standard. {2}
- Equally foreign to our abuse-of-the-writ jurisprudence is the
- requirement that a petitioner show "prejudice." Under Sanders, a
- petitioner who articulates a justifiable reason for failing to present a
- claim in a previous habeas application is not required in addition to
- demonstrate any particular degree of prejudice before the habeas court must
- consider his claim. If the petitioner demonstrates that his claim has
- merit, it is the State that must show that the resulting constitutional
- error was harmless beyond a reasonable doubt. See L. Yackle,
- Postconviction Remedies MDRV 133, p. 503 (1981). {3}
-
- II
- The real question posed by the majority's analysis is not whether the
- cause-and-prejudice test departs from the principles of Sanders -- for it
- clearly does -- but whether the majority has succeeded in justifying this
- departure as an exercise of this Court's common-lawmaking discretion. In
- my view, the majority does not come close to justifying its new standard.
-
- A
- Incorporation of the cause-and-prejudice test into the
- abuse-of-the-writ doctrine cannot be justified as an exercise of this
- Court's common-lawmaking discretion, because this Court has no discretion
- to exercise in this area. Congress has affirmatively ratified the Sanders
- good-faith standard in the governing statute and procedural rules, thereby
- insulating that standard from judicial repeal.
- The abuse-of-the-writ doctrine is embodied in 28 U. S. C. MDRV 2244(b)
- and in Habeas Corpus Rule 9(b). Enacted three years after Sanders, MDRV
- 2244(b) recodified the statutory authority of a district court to dismiss a
- second or successive petition, amending the statutory language to
- incorporate the Sanders criteria:
-
- "[A] subsequent application for a writ of habeas corpus . . . need not be
- entertained by a court . . . 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 . . . 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).
-
-
- Consistent with Sanders, the purpose of the recodification was to spare a
- district court the obligation to entertain a petition "containing
- allegations identical to those asserted in a previous application that has
- been denied, or predicated upon grounds obviously well known to [the
- petitioner] when [he] filed the preceding application." S. Rep. No. 1797,
- 89th Cong., 2d Sess., 2 (1966) (emphasis added). Rule 9(b) likewise adopts
- Sanders' terminology:
-
- "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."
-
-
- There can be no question that MDRV 2244(b) and Rule 9(b) codify
- Sanders. The legislative history of, and Advisory Committee's Notes to,
- Rule 9(b) expressly so indicate, see 28 U. S. C., pp. 426-427; H. R. Rep.
- No. 94-1471, pp. 5-6 (1976), and such has been the universal understanding
- of this Court, see Rose v. Lundy, 455 U. S. 509, 521 (1982), of the lower
- courts, see, e. g., Williams v. Lockhart, 862 F. 2d 155, 157 (CA8 1988);
- Neuschafer v. Whitley, 860 F. 2d 1470, 1474 (CA9 1988), cert. denied, sub
- nom. Demosthenes v. Neushafer, 493 U. S. 906 (1989); 860 F. 2d, at 1479
- (Alarcon, J., concurring in result); Davis v. Dugger, 829 F. 2d 1513, 1518,
- n. 13 (CA11 1987); Passman v. Blackburn, 797 F. 2d 1335, 1341 (CA5 1986),
- cert. denied, 480 U. S. 948 (1987); United States v. Talk, 597 F. 2d 249,
- 250-251 (CA10 1979); United States ex rel. Fletcher v. Brierley, 460 F. 2d
- 444, 446, n. 4A (CA3), cert. denied, 409 U. S. 1044 (1972), and of
- commentators, see, e. g., 17A C. Wright, A. Miller & E. Cooper, Federal
- Practice and Procedure MDRV 4267, pp. 477478 (2d ed. 1988); L. Yackle,
- supra, MDRV 154. {4}
- The majority concedes that MDRV 2244(b) and Rule 9(b) codify Sanders,
- see ante, at 19, but concludes nonetheless that Congress did "not answer"
- all of the "questions" concerning the abuse-of-the-writ doctrine, ante, at
- 18. The majority emphasizes that MDRV 2244(b) refers to second or
- successive petitions from petitioners who have "deliberately withheld the
- newly asserted ground or otherwise abused the writ" without exhaustively
- cataloging the ways in which the writ may "otherwise" be "abused." See
- ibid.; ante, at 21. From this "silenc[e]," the majority infers a
- congressional delegation of lawmaking power broad enough to encompass the
- engrafting of the cause-and-prejudice test onto the abuse-of-the-writ
- doctrine. Ante, at 18.
- It is difficult to take this reasoning seriously. Because "cause"
- under Sykes makes the mental state of the petitioner (or his counsel)
- irrelevant, "cause" completely subsumes "deliberate abandonment." See
- Engle v. Isaac, 456 U. S. 107, 130, n. 36 (1982); see also Wainwright v.
- Sykes, 433 U. S., at 87. Thus, if merely failing to raise a claim without
- "cause" -- that is, without some external impediment to raising it --
- necessarily constitutes an abuse of the writ, the statutory reference to
- deliberate withholding of a claim would be rendered superfluous. Insofar
- as Sanders was primarily concerned with limiting dismissal of a second or
- subsequent petition to instances in which the petitioner had deliberately
- abandoned the new claim, see 373 U. S., at 18, the suggestion that Congress
- invested courts with the discretion to read this language out of the
- statute is completely irreconcilable with the proposition that MDRV 2244(b)
- and Rule 9(b) codify Sanders.
- To give content to "otherwise abus[e] the writ" as used in MDRV
- 2244(b), we must look to Sanders. As I have explained, the Court in
- Sanders identified two broad classes of bad-faith conduct that bar
- adjudication of a claim not raised in a previous habeas application: the
- deliberate abandonment or withholding of that claim from the first
- petition; and the filing of a petition aimed at some purpose other than
- expeditious relief from unlawful confinement, such as "to vex, harass, or
- delay." See ibid. By referring to second or successive applications from
- habeas petitioners who have "deliberately withheld the newly asserted
- ground or otherwise abused the writ," MDRV 2244(b) tracks this division.
- Congress may well have selected the phrase "otherwise abused the writ" with
- the expectation that courts would continue to elaborate upon the types of
- dilatory tactics that, in addition to deliberate abandonment of a known
- claim, constitute an abuse of the writ. But consistent with Congress'
- intent to codify Sanders' good-faith test, such elaborations must be
- confined to circumstances in which a petitioner's omission of an unknown
- claim is conjoined with his intentional filing of a petitition for an
- improper purpose, such as "to vex, harass or delay."
- The majority tacitly acknowledges this constraint on the Court's
- interpretive discretion by suggesting that "cause" is tantamount to
- "inexcusable neglect." This claim, too, is untenable. The majority
- exaggerates when it claims that the "inexcusable neglect" formulation --
- which this Court has never applied in an abuse-of-the-writ decision --
- functions as an independent standard for evaluating a petitioner's failure
- to raise a claim in a previous habeas application. It is true that Sanders
- compared its own analysis to the analysis in Townsend v. Sain, 372 U. S.
- 293 (1963), which established that a district court should deny an
- evidentiary hearing if the habeas petitioner inexcusably neglected to
- develop factual evidence in state proceedings. See id., at 317. Townsend,
- however, expressly equated "inexcusable neglect" with the "deliberate
- bypass" test of Fay v. Noia. See 372 U. S., at 317. {5} But even if
- "inexcusable neglect" does usefully describe a class of abuses separate
- from deliberate abandonment, the melding of "cause and prejudice" into the
- abuse-ofthe-writ doctrine cannot be defended as a means of "giving content"
- to "inexcusable neglect." Ante, at 21. For under Sykes' strict-liability
- standard, mere attorney negligence is never excusable. See Murray v.
- Carrier, 477 U. S., at 488 ("So long as a defendant is represented by
- counsel whose performance is not constitutionally ineffective . . . , we
- discern no inequity in requiring him to bear the risk of attorney error
- that results in a procedural default").
- Confirmation that the majority today exercises legislative power not
- properly belonging to this Court is supplied by Congress' own recent
- consideration and rejection of an amendment to MDRV 2244(b). It is
- axiomatic that this Court does not function as a backup legislature for the
- reconsideration of failed attempts to amend existing statutes. See Bowsher
- v. Merck & Co., 460 U. S. 824, 837, n. 12 (1983); FTC v. Ruberoid Co., 343
- U. S. 470, 478-479 (1952); see also North Haven Bd. of Ed. v. Bell, 456 U.
- S. 512, 534-535 (1982). Yet that is exactly the effect of today's
- decision. As reported out of the House Committee on the Judiciary, MDRV
- 1303 of H. R. 5269, 101st Cong., 2d Sess. (1990), would have required
- dismissal of any second or subsequent application by a habeas petitioner
- under sentence of death unless the petitioner raised a new claim "the
- factual basis of [which] could not have been discovered by the exercise of
- reasonable diligence," H. R. Rep. No. 101-681, pt. 1, p. 29 (1990)
- (emphasis added). {6} The Committee Report accompanying this legislation
- explained that "courts have properly construed section 2244(b) and Rule
- 9(b) as codifications of the guidelines the [Supreme] Court itself
- prescribed in Sanders." Id., at 119 (citation omitted). The Report
- justified adoption of the tougher "reasonable diligence" standard on the
- ground that "[t]he Sanders guidelines have not . . . satisfactorily met
- concerns that death row prisoners may file second or successive habeas
- corpus applications as a means of extending litigation." Ibid. Unfazed by
- Congress' rejection of this legislation, the majority arrogates to itself
- the power to repeal Sanders and to replace it with a tougher standard. {7}
-
- B
- Even if the fusion of cause-and-prejudice into the abuse-ofthe-writ
- doctrine were not foreclosed by the will of Congress, the majority fails to
- demonstrate that such a rule would be a wise or just exercise of the
- Court's common-lawmaking discretion. In fact, the majority's abrupt change
- in law subverts the policies underlying MDRV 2244(b) and unfairly
- prejudices the petitioner in this case.
- The majority premises adoption of the cause-and-prejudice test almost
- entirely on the importance of "finality." See ante, at 22-24. At best,
- this is an insufficiently developed justification for cause-and-prejudice
- or any other possible conception of the abuse-of-the-writ doctrine. For
- the very essence of the Great Writ is our criminal justice system's
- commitment to suspending "[c]onventional notions of finality of litigation
- . . . where life or liberty is at stake and infringement of constitutional
- rights is alleged." Sanders, 373 U. S., at 8. To recognize this principle
- is not to make the straw-man claim that the writ must be accompanied by "
- `[a] procedural system which permits an endless repetition of inquiry into
- facts and law in a vain search for ultimate certitude.' " Ante, at 23,
- quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State
- Prisoners, 76 Harv. L. Rev. 441, 452 (1963). Rather, it is only to point
- out the plain fact that we may not, "[u]nder the guise of fashioning a
- procedural rule, . . . wip[e] out the practical efficacy of a jurisdiction
- conferred by Congress on the District Courts." Brown v. Allen, 344 U. S.
- 443, 498-499 (1953) (opinion of Frankfurter, J.).
- The majority seeks to demonstrate that cause-and-prejudice strikes an
- acceptable balance between the state's interest in finality and the
- purposes of habeas corpus by analogizing the abuse-of-the-writ doctrine to
- the procedural-default doctrine. According to the majority, these two
- doctrines "implicate nearly identical concerns flowing from the significant
- costs of federal habeas corpus review." Ante, at 22. And because this
- Court has already deemed cause-and-prejudice to be an appropriate standard
- for assessing procedural defaults, the majority reasons, the same standard
- should be used for assessing the failure to raise a claim in a previous
- habeas petition. See ante, at 21-25.
- This analysis does not withstand scrutiny. This Court's precedents on
- the procedural-default doctrine identify two purposes served by the
- cause-and-prejudice test. The first purpose is to promote respect for a
- State's legitimate procedural rules. See, e. g., Reed v. Ross, 468 U. S.
- 1, 14 (1984); Sykes, 433 U. S., at 87-90. As the Court has explained, the
- willingness of a habeas court to entertain a claim that a state court has
- deemed to be procedurally barred "undercut[s] the State's ability to
- enforce its procedural rules," Engle v. Isaac, 456 U. S., at 129, and may
- cause "state courts themselves [to be] less stringent in their
- enforcement," Sykes, supra, at 89. See generally Meltzer, State Court
- Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1150-1158 (1986).
- The second purpose of the cause-and-prejudice test is to preserve the
- connection between federal collateral review and the general "deterrent"
- function served by the Great Writ. " `[T]he threat of habeas serves as a
- necessary additional incentive for trial and appellate courts throughout
- the land to conduct their proceedings in a manner consistent with
- established constitutional standards.' " Teague v. Lane, 489 U. S. 288,
- 306 (1989) (plurality opinion), quoting Desist v. United States, 394 U. S.
- 244, 262-263 (1969) (Harlan, J., dissenting); see Rose v. Mitchell, 443 U.
- S. 545, 563 (1979). Obviously, this understanding of the disciplining
- effect of federal habeas corpus presupposes that a criminal defendant has
- given the state trial and appellate courts a fair opportunity to pass on
- his constitutional claims. See Murray v. Carrier, 477 U. S., at 487; Engle
- v. Isaac, supra, at 128-129. With regard to both of these purposes, the
- strictness of the cause-and-prejudice test has been justified on the ground
- that the defendant's procedural default is akin to an independent and
- adequate state-law ground for the judgment of conviction. See Sykes,
- supra, at 81-83.
- Neither of these concerns is even remotely implicated in the
- abuse-of-the-writ setting. The abuse-of-the-writ doctrine clearly
- contemplates a situation in which a petitioner (as in this case) has
- complied with applicable state-procedural rules and effectively raised his
- constitutional claim in state proceedings; were it otherwise, the
- abuse-of-the-writ doctrine would not perform a screening function
- independent from that performed by the procedural-default doctrine and by
- the requirement that a habeas petitioner exhaust his state remedies, see 28
- U. S. C. 15 2254(b), (c). Cf. ante, at 18. Because the abuse-of-the-writ
- doctrine presupposes that the petitioner has effectively raised his claim
- in state proceedings, a decision by the habeas court to entertain the claim
- notwithstanding its omission from an earlier habeas petition will neither
- breed disrespect for state-procedural rules nor unfairly subject state
- courts to federal collateral review in the absence of a state-court
- disposition of a federal claim. {8}
- Because the abuse-of-the-writ doctrine addresses the situation in which
- a federal habeas court must determine whether to hear a claim withheld from
- another federal habeas court, the test for identifying an abuse must strike
- an appropriate balance between finality and review in that setting. Only
- when informed by Sanders does MDRV 2244(b) strike an efficient balance. A
- habeas petitioner's own interest in liberty furnishes a powerful incentive
- to assert in his first petition all claims that the petitioner (or his
- counsel) believes have a reasonable prospect for success. See Note, 83
- Harv. L. Rev. 1038, 1153-1154 (1970); see also Rose v. Lundy, 455 U. S., at
- 520 ("The prisoner's principal interest, of course, is in obtaining speedy
- federal relief on his claims"). Sanders' bar on the later assertion of
- claims omitted in bad faith adequately fortifies this natural incentive.
- At the same time, however, the petitioner faces an effective disincentive
- to asserting any claim that he believes does not have a reasonable prospect
- for success: the adverse adjudication of such a claim will bar its
- reassertion under the successive-petition doctrine, see 28 U. S. C. MDRV
- 2244(b); Sanders, supra, at 17, whereas omission of the claim will not
- prevent the petitioner from asserting the claim for the first time in a
- later petition should the discovery of new evidence or the advent of
- intervening changes in law invest the claim with merit, S. Rep. No. 1797,
- at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p.
- 427.
- The cause-and-prejudice test destroys this balance. By design, the
- cause-and-prejudice standard creates a nearirrebuttable presumption that
- omitted claims are permanently barred. This outcome not only conflicts
- with Congress' intent that a petitioner be free to avail himself of newly
- discovered evidence or intervening changes in law, S. Rep. No. 1797, at 2;
- Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427, but
- also subverts the statutory disincentive to the assertion of frivolous
- claims. Rather than face the cause-and-prejudice bar, a petitioner will
- assert all conceivable claims, whether or not these claims reasonably
- appear to have merit. The possibility that these claims will be adversely
- adjudicated and thereafter be barred from relitigation under the
- successive-petition doctrine will not effectively discourage the petitioner
- from asserting them, for the petitioner will have virtually no expectation
- that any withheld claim could be revived should his assessment of its merit
- later prove mistaken. Far from promoting efficiency, the majority's rule
- thus invites the very type of "baseless claims," ante, at 24, that the
- majority seeks to avert.
- The majority's adoption of the cause-and-prejudice test is not only
- unwise, but also manifestly unfair. The proclaimed purpose of the
- majority's new strict-liability standard is to increase to the maximum
- extent a petitioner's incentive to investigate all conceivable claims
- before filing his first petition. See ante, at 29. Whatever its merits,
- this was not the rule when the petitioner in this case filed his first
- petition. From the legislative history of MDRV 2244(b) and Rule 9(b) and
- from the universal agreement of courts and commentators, see supra, at 8,
- McCleskey's counsel could have reached no other conclusion but that his
- investigatory efforts in preparing his client's petition would be measured
- against the Sanders good-faith standard. There can be little question that
- his efforts satisfied that test; indeed, the District Court expressly
- concluded that McCleskey's counsel on his first habeas conducted a
- reasonable and competent investigation before concluding that a claim based
- on Massiah v. United States, 377 U. S. 201 (1964), would be without factual
- foundation. See App. 84-85; see also infra, at 21. Before today, that
- would have been enough. The Court's utter indifference to the injustice of
- retroactively applying its new, strict-liability standard to this habeas
- petitioner stands in marked contrast to this Court's eagerness to protect
- States from the unfair surprise of "new rules" that enforce the
- constitutional rights of citizens charged with criminal wrongdoing. See
- Butler v. McKellar, 494 U. S. ---, --- (1990); Saffle v. Parks, 494 U. S.
- ---, --- (1990); Teague v. Lane, 489 U. S., at 299-310 (plurality
- opinion).
- This injustice is compounded by the Court's activism in fashioning its
- new rule. The applicability of Sykes' causeand-prejudice test was not
- litigated in either the District Court or the Court of Appeals. The
- additional question that we requested the parties to address reasonably
- could have been read to relate merely to the burden of proof under the
- abuse-of-the-writ doctrine; {9} it evidently did not put the parties on
- notice that this Court was contemplating a change in the governing legal
- standard, since respondent did not even mention Sykes or
- cause-and-prejudice in its brief or at oral argument, much less request the
- Court to adopt this standard. {10} In this respect, too, today's decision
- departs from norms that inform the proper judicial function. See Heckler
- v. Campbell, 461 U. S. 458, 468, n. 12 (1983) (Court will consider ground
- in support of judgment not raised below only in extraordinary case);
- accord, Granfinanciera, S. A. v. Nord berg, 492 U. S. 33, 39 (1989). It
- cannot be said that Mc Cleskey had a fair opportunity to challenge the
- reasoning that the majority today invokes to strip him of his Massiah
- claim.
-
- III
- The manner in which the majority applies its new rule is as
- objectionable as the manner in which the majority creates that rule. As
- even the majority acknowledges, see ante, at 1, the standard that it
- announces today is not the one employed by the Court of Appeals, which
- purported to rely on Sanders, see 890 F. 2d 342, 347 (CA 11 1989). See
- ante, at 1. Where, as here, application of a different standard from the
- one applied by the lower court requires an in-depth review of the record,
- the ordinary course is to remand so that the parties have a fair
- opportunity to address, and the lower court to consider, all of the
- relevant issues. See, e. g., Anderson v. Liberty Lobby, Inc., 477 U. S.
- 242, 257 (1986); Mandel v. Bradley, 432 U. S. 173, 179 (1977) (per curiam);
- see also United States v. Hasting, 461 U. S. 499, 515-518 (1983) (Stevens,
- J., concurring in judgment) (Court should not undertake record-review
- "function that can better be performed by other judges").
- A remand would have been particularly appropriate in this case in view
- of the patent deficiencies in the reasoning of the Court of Appeals. The
- Court of Appeals concluded that McCleskey deliberately abandoned his
- Massiah claim because his counsel "made a knowing choice not to pursue the
- claim after having raised it" unsuccessfully on state collateral review.
- 890 F. 2d, at 349. This reasoning, which the majority declines to endorse,
- is obviously faulty. As I have explained, the abuse-of-the-writ doctrine
- is independent from the procedural-default and exhaustion doctrines; MDRV
- 2244(b) and Rule 9(b) contemplate a habeas petitioner who has effectively
- presented his claim in state proceedings but withheld that claim from a
- previous habeas application. Because MDRV 2244(b) and Rule 9(b) authorize
- the district court to consider such a claim under appropriate
- circumstances, it cannot be the case that a petitioner invariably abuses
- the writ by consciously failing to include in his first habeas petition a
- claim raised in state proceedings. Insofar as Congress intended that the
- district court excuse the withholding of a claim when the petitioner
- produces newly discovered evidence or intervening changes in law, S. Rep.
- No. 1797, at 2; Advisory Committee's Note to Habeas Corpus Rule 9, 28 U. S.
- C., p. 427, a petitioner cannot be deemed to have deliberately abandoned
- the claim in an earlier habeas proceeding unless the petitioner was aware
- then of the evidence and law that support the claim. See, e. g., Wong Doo,
- 265 U. S., at 241. If the Court of Appeals had properly applied Sanders,
- it would almost certainly have agreed with the District Court's conclusion
- that McCleskey was not aware of the evidence that supported his Massiah
- claim when he filed his first petition. In any case, because the Court of
- Appeals' reversal was based on an erroneous application of Sanders, the
- majority's decision not to remand cannot be justified on the ground that
- the Court of Appeals would necessarily have decided the case the same way
- under the cause-and-prejudice standard.
- Undaunted by the difficulty of applying its new rule without the
- benefit of any lower court's preliminary consideration, the majority forges
- ahead to perform its own independent review of the record. The majority
- concludes that McCleskey had no cause to withhold his Massiah claim because
- all of the evidence supporting that claim was available before he filed his
- first habeas petition. The majority purports to accept the District
- Court's finding that Offie Evans' 21-page statement was, at that point,
- being held beyond McCleskey's reach. See ante, at 29-30, and n. *. {11}
- But the State's failure to produce this document, the majority explains,
- furnished no excuse for McCleskey's failure to assert his Massiah claim
- "because McCleskey participated in the conversations reported by Evans,"
- and therefore "knew everything in the document that the District Court
- relied upon to establish the ab initio connection between Evans and the
- police." Ante, at 31. The majority also points out that no external force
- impeded McCleskey's discovery of the testimony of jailer Worthy. See
- ibid.
- To appreciate the hollowness -- and the dangerousness -- of this
- reasoning, it is necessary to recall the District Court's central finding:
- that the State did covertly plant Evans in an adjoining cell for the
- purpose of eliciting incriminating statements that could be used against
- McCleskey at trial. See App. 83. Once this finding is credited, it
- follows that the State affirmatively misled McCleskey and his counsel
- throughout their unsuccessful pursuit of the Massiah claim in state
- collateral proceedings and their investigation of that claim in preparing
- for McCleskey's first federal habeas proceeding. McCleskey's counsel
- deposed or interviewed the assistant district attorney, various jailers,
- and other government officials responsible for Evans' confinement, all of
- whom denied any knowledge of an agreement between Evans and the State. See
- App. 25-28, 44-47, 79, 85.
- Against this background of deceit, the State's withholding of Evans'
- 21-page statement assumes critical importance. The majority overstates
- McCleskey's and his counsel's awareness of the statement's contents. For
- example, the statement relates that state officials were present when Evans
- made a phone call at McCleskey's request to McCleskey's girlfriend,
- Plaintiff's Exh. 8, p. 14, a fact that McCleskey and his counsel had no
- reason to know and that strongly supports the District Court's finding of
- an ab initio relationship between Evans and the State. But in any event,
- the importance of the statement lay much less in what the statement said
- than in its simple existence. Without the statement, McCleskey's counsel
- had nothing more than his client's testimony to back up counsel's own
- suspicion of a possible Massiah violation; given the state officials'
- adamant denials of any arrangement with Evans, and given the state habeas
- court's rejection of the Massiah claim, counsel quite reasonably concluded
- that raising this claim in McCleskey's first habeas petition would be
- futile. All this changed once counsel finally obtained the statement, for
- at that point, there was credible, independent corroboration of counsel's
- suspicion. This additional evidence not only gave counsel the reasonable
- expectation of success that had previously been lacking, but also gave him
- a basis for conducting further investigation into the underlying claim.
- Indeed, it was by piecing together the circumstances under which the
- statement had been transcribed that McCleskey's counsel was able to find
- Worthy, a state official who was finally willing to admit that Evans had
- been planted in the cell adjoining McCleskey's. {12}
- The majority's analysis of this case is dangerous precisely because it
- treats as irrelevant the effect that the State's disinformation strategy
- had on counsel's assessment of the reasonableness of pursing the Massiah
- claim. For the majority, all that matters is that no external obstacle
- barred McCleskey from finding Worthy. But obviously, counsel's decision
- even to look for evidence in support of a particular claim has to be
- informed by what counsel reasonably perceives to be the prospect that the
- claim may have merit; in this case, by withholding the 21-page statement
- and by affirmatively misleading counsel as to the State's involvement with
- Evans, state officials created a climate in which McCleskey's first habeas
- counsel was perfectly justified in focusing his attentions elsewhere. The
- sum and substance of the majority's analysis is that McCleskey had no
- "cause" for failing to assert the Massiah claim because he did not try hard
- enough to pierce the State's veil of deception. Because the majority
- excludes from its conception of cause any recognition of how state
- officials can distort a petitioner's reasonable perception of whether
- pursuit of a particular claim is worthwhile, the majority's conception of
- "cause" creates an incentive for state officials to engage in this very
- type of misconduct.
- Although the majority finds it unnecessary to reach the question
- whether McCleskey was "prejudiced" by the Massiah violation in this case, I
- have no doubt that the admission of Evans' testimony at trial satisfies any
- fair conception of this prong of the Sykes test. No witness from the
- furniture store was able to identify which of the four robbers shot the
- off-duty police officer. The State did put on evidence that McCleskey had
- earlier stolen the pearl-handled pistol that was determined to be the
- likely murder weapon, but the significance of this testimony was clouded by
- a codefendant's admission that he had been carrying this weapon for weeks
- at a time, App. 16, and by a prosecution witness' own prior statement that
- she had seen only the codefendant carry the pistol, id., at 11-14. See
- also id., at 89 (District Court finding that "the evidence on [McCleskey's]
- possession of the gun in question was conflicting"). Outside of the
- selfserving and easily impeachable testimony of the codefendant, the only
- evidence that directly supported the State's identification of McCleskey as
- the triggerman was the testimony of Evans. As the District Court found,
- "Evans' testimony about the petitioner's incriminating statements was
- critical to the state's case." Id., at 89. Without it, the jury might
- very well have reached a different verdict.
- Thus, as I read the record, McCleskey should be entitled to the
- consideration of his petition for habeas corpus even under the
- cause-and-prejudice test. The case is certainly close enough to warrant a
- remand so that the issues can be fully and fairly briefed.
-
- IV
- Ironically, the majority seeks to defend its doctrinal innovation on
- the ground that it will promote respect for the "rule of law." Ante, at
- 24. Obviously, respect for the rule of law must start with those who are
- responsible for pronouncing the law. The majority's invocation of " `the
- orderly administration of justice,' " ante, at 27, rings hollow when the
- majority itself tosses aside established precedents without explanation,
- disregards the will of Congress, fashions rules that defy the reasonable
- expectations of the persons who must conform their conduct to the law's
- dictates, and applies those rules in a way that rewards state misconduct
- and deceit. Whatever "abuse of the writ" today's decision is designed to
- avert pales in comparison with the majority's own abuse of the norms that
- inform the proper judicial function.
- I dissent.
-
-
-
-
-
-
-
- ------------------------------------------------------------------------------
- 1
- Although Sanders examined the abuse-of-the-writ question in the context
- of a motion for collateral review filed under 28 U. S. C. MDRV 2255, the
- Court made it clear that the same principles apply in the context of a
- petition for habeas corpus filed under 28 U. S. C. MDRV 2254. See 373 U.
- S., at 12-15.
-
- 2
- Contrary to the majority's suggestion, this Court's more recent
- decisions on abuse of the writ by no means foreshadowed the shift to Sykes'
- strict-liability standard. The cases cited by the majority all involved
- eleventh-hour dispositions of capital stay applications, and the cursory
- analysis in each ruling suggests merely that the habeas petitioner failed
- to carry his burden of articulating a credible explanation for having
- failed to raise the claim in an earlier petition. See Advisory Committee's
- Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427 ("[T]he petitioner has
- the burden of proving that he has not abused the writ"); accord, Price v.
- Johnston, 334 U. S. 266, 292 (1948); see also Sanders v. United States, 373
- U. S. 1, 10 (1963) (Government merely has burden to plead abuse of the
- writ). Thus, in Woodard v. Hutchins, 464 U. S. 377 (1984) (per curiam),
- the five Justices concurring in the order concluded that the habeas
- petitioner had abused the writ because he "offer[ed] no explanation for
- having failed to raise [three new] claims in his first petition for habeas
- corpus." Id., at 379 (Powell, J., joined by Burger, C. J., Blackmun,
- Rehnquist, and O'Connor, JJ., concurring in order vacating stay) (emphasis
- added). A petitioner who gives no explanation for omitting his claims from
- a previous application necessarily fails to carry his burden of
- justification. Similarly, in Antone v. Dugger, 465 U. S. 200 (1984) (per
- curiam), the Court rejected as "meritless" the petitioner's claim that the
- imminence of his execution prevented his counsel from identifying all of
- the claims that could be raised in the first petition, because the
- petitioner's execution had in fact been stayed during the pendency of the
- original habeas proceeding. Id., at 206, n. 4. Finally, in Delo v.
- Stokes, 495 U. S. --- (1990) (per curiam), the Court in a five-sentence
- analysis concluded that the petitioner had abused the writ by raising a
- claim the legal basis of which was readily apparent at the time of the
- first petition. Id., at ---. The opinion says nothing about whether the
- petitioner offered any explanation to rebut the presumption that the
- petitioner had deliberately abandoned this claim. In short, the analysis
- in these decisions is as consistent with Sanders' deliberate-abandonment
- test as with Sykes' cause-and-prejudice test.
-
- 3
- The majority is simply incorrect, moreover, when it claims that the
- "prejudice" component of the Sykes test is "[w]ell-defined in the case
- law." Ante, at 27. The Court in Sykes expressly declined to define this
- concept, see 433 U. S., at 91, and since then, the Court has elaborated
- upon "prejudice" only as it applies to nonconstitutional jury-instruction
- challenges, leaving the "the import of the term in other situations . . .
- an open question." United States v. Frady, 456 U. S. 152, 168 (1982).
- Thus, far from resolving "confusion" over the proper application of the
- abuse of the writ doctrine, today's decision creates it.
-
- 4
- In this respect, the abuse-of-the-writ doctrine rests on a different
- foundation from the procedural-default doctrine. In Wainwright v. Sykes,
- 433 U. S. 72 (1977), the Court emphasized that the procedural-default rule
- set down in Fay v. Noia, 372 U. S. 391 (1963), derived only from "comity"
- considerations, 433 U. S., at 83, and explained that the content of this
- doctrine is therefore subject to the Court's traditional, common-law
- discretion "to overturn or modify its earlier views of the scope of the
- writ, even where the statutory language authorizing judicial action has
- remained unchanged," id., at 81. But unlike Fay v. Noia's "deliberate
- bypass" test for procedural defaults, the "deliberate abandonment" test of
- Sanders has been expressly ratified by Congress. This legislative action
- necessarily constrains the scope of this Court's common-lawmaking
- discretion.
-
- 5
- Indeed, Congress expressly amended Rule 9(b) to eliminate language that
- would have established a standard similar to "inexcusable neglect." As
- initially submitted to Congress, Rule 9(b) would have authorized a district
- court to entertain a second or successive petition raising a previously
- unasserted ground unless the court "finds that the failure of the
- petitioner to assert th[at] groun[d] in a prior petition is not excusable."
- H. R. Rep. No. 94-1471, p. 8 (1976) (emphasis added). Explaining that "the
- `not excusable' language [would] creat[e] a new and undefined standard that
- [would] g[ive] a judge too broad a discretion to dismiss a second or
- successive petition," Congress substituted Sanders' "abuse of the writ"
- formulation. See id., at 5. This amendment was designed to "brin[g] Rule
- 9(b) into conformity with existing law." Ibid.
-
- 6
- House bill 5269 was the House version of the legislation that became
- the Crime Control Act of 1990, Pub. L. 101-647, 104 Stat. 4789 the final
- version of which left MDRV 2244(b) unamended.
-
- 7
- Moreover, the rejected amendment to MDRV 2244(b) would have changed the
- standard only for second or subsequent petitions filed by petitioners under
- a sentence of death, leaving the Sanders standard intact for noncapital
- petitioners. The majority's decision today changes the standard for all
- habeas petitioners.
-
- 8
- Insofar as the habeas court's entertainment of the petitioner's claim
- in these circumstances depends on the petitioner's articulation of a
- justifiable reason for having failed to raise the claim in the earlier
- federal petition, see Sanders, 373 U. S., at 17-18; Price v. Johnston, 334
- U. S., at 291, the federal court may very well be considering the claim on
- the basis of evidence discovered after, or legal developments that
- postdate, the termination of the state proceedings. But the decision to
- permit a petitioner to avail himself of federal habeas relief under those
- conditions is one that Congress expressly made in authorizing district
- courts to entertain second or successive petitions under MDRV 2244(b) and
- Rule 9(b). See S. Rep. No. 1797, at 2 ("newly discovered evidence" is
- basis for second petition raising previously unasserted ground); Advisory
- Committee's Note to Habeas Corpus Rule 9, 28 U. S. C., p. 427 ("A
- retroactive change in the law and newly discovered evidence are examples"
- of "instances in which petitioner's failure to assert a ground in a prior
- petition is excusable").
-
- 9
- The question reads: "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) (emphasis
- added).
-
- 10
- Petitioner McCleskey addressed the applicability of the
- cause-andprejudice test only in his reply brief and in response to
- arguments raised by amicus curiae Criminal Justice Legal Foundation. It is
- well established, however, that this Court will not consider an argument
- advanced by amicus when that argument was not raised or passed on below and
- was not advanced in this Court by the party on whose behalf the argument is
- being raised. See United Parcel Service, Inc. v. Mitchell, 451 U. S. 56,
- 60, n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 531, n. 13 (1979); Knetsch
- v. United States, 364 U. S. 361, 370 (1960).
-
- 11
- Nonetheless, "for the sake of completeness," the majority feels
- constrained to express its opinion that "this finding is not free from
- substantial doubt." Ante, at 30, n. *. Pointing to certain vague clues
- arising at different points during the state proceedings at trial and on
- direct and collateral review, the majority asserts that "[t]he record . . .
- furnishes strong evidence that McCleskey knew or should have known of the
- Evans document before the first federal petition." Ibid. It is the
- majority's account, however, that is incomplete. Omitted is any mention of
- the State's evasions of counsel's repeated attempts to compel disclosure of
- any statement in the State's possession. In particular, the majority
- neglects to mention the withholding of the statement from a box of
- documents produced during discovery in McCleskey's state collateral-review
- action; these documents were represented to counsel as comprising "a
- complete copy of the prosecutor's file resulting from the criminal
- prosecution of Warren McCleskey in Fulton County." App. 29 (emphasis
- added). McCleskey ultimately obtained the statement by filing a request
- under a state "open records" statute that was not construed to apply to
- police-investigative files until six years after McCleskey's first federal
- habeas proceeding. See generally Napper v. Georgia Television Co., 257 Ga.
- 156, 356 S. E. 2d 640 (1987). This fact, too, is missing from the
- majority's account.
-
- 12
- The majority gratuitously characterizes Worthy's testimony as being
- contradictory on the facts essential to McCleskey's Massiah claim. See
- ante, at 6. According to the District Court -- which is obviously in a
- better position to know than is the majority -- "Worthy never wavered from
- the fact that someone, at some point, requested his permission to move
- Evans to be near McCleskey." App. 78; accord id., at 81 ("The fact that
- someone, at some point, requested his permission to move Evans is the one
- fact from which Worthy never wavered in his two days of direct and
- crossexamination. The state has introduced no affirmative evidence that
- Worthy is either lying or mistaken").
-