OCTOBER TERM, 1999
Syllabus
WILLIAMS
v. TAYLOR, WARDEN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 99-6615. Argued February 28, 2000-Decided April 18, 2000
After petitioner was convicted of two capital murders and other
crimes, he was sentenced to death. The Supreme Court of Virginia
affirmed on direct appeal and later dismissed petitioner's state
habeas corpus petition. He then sought federal habeas relief,
requesting, among other things, an evidentiary hearing on three
constitutional claims, which he had been unable to develop in the
state-court proceedings. Those claims were that (1) the prosecution
had violated
Brady v.
Maryland, 373 U. S. 83, in failing
to disclose a report of a pretrial psychiatric examination of
Jeffrey Cruse, petitioner's accomplice and the Commonwealth's main
witness against petitioner; (2) the trial was rendered unfair by
the seating of a juror who at
voir dire had not revealed
possible sources of bias; and (3) a prosecutor committed misconduct
in failing to reveal his knowledge of the juror's possible bias.
The District Court granted an evidentiary hearing on,
inter
alia, the latter two claims, but denied a hearing on the
Brady claim. Before any hearing could be held, however, the
Fourth Circuit granted the Commonwealth's requests for an emergency
stay and for a writ of mandamus and prohibition, which were based
on the argument that an evidentiary hearing was prohibited by 28 U.
S. C. §2254(e)(2), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). On remand, the District Court
vacated its order granting an evidentiary hearing and dismissed the
petition, having determined petitioner could not satisfy §
2254(e)(2)'s requirements. In affirming, the Fourth Circuit agreed
with petitioner's argument that the statute would not apply if he
had exercised diligence in state court, but held, among other
things, that he had not been diligent and so had "failed to develop
the factual basis of [his three] claim[s] in State court," §
2254(e)(2). The court concluded that petitioner could not satisfy
the statute's conditions for excusing his failure to develop the
facts and held him barred from receiving an evidentiary
hearing.
Held: Under §2254(e)(2), as amended by AEDPA, a
"fail[ure] to develop" a claim's factual basis in state-court
proceedings is not established unless there is lack of diligence,
or some greater fault, attributable to the prisoner or his counsel.
The statute does not bar the evidentiary hearing petitioner seeks
on his juror bias and prosecutorial misconduct claims, but bars a
hearing on his
Brady claim because he "failed to
421
develop" that claim's factual basis in state court and concedes
his inability to satisfy the statute's further stringent conditions
for excusing the deficiency. Pp. 429-445.
(a) Petitioner filed his federal habeas petition after AEDPA's
effective date, so his case is controlled by § 2254(e)(2)'s opening
clause, which specifies that "[i]f the [federal habeas] applicant
has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the
claim" unless the applicant makes specified showings. Pp.
429-430.
(b) The analysis begins with the language of the statute.
Although "fail" is sometimes used in a neutral way, not importing
fault or want of diligence, this is not the sense in which the word
"failed" is used in § 2254(e)(2). A statute's words must be given
their ordinary, contemporary, common meaning, absent an indication
Congress intended them to bear some different import.
E. g.,
Walters v.
Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207. In
its customary and preferred sense, "fail" connotes some omission,
fault, or negligence on the part of the person who has failed to do
something. If Congress had instead intended a "no-fault" standard,
it would have had to do no more than use, in lieu of the phrase
"has failed to," the phrase "did not." This interpretation has
support in
Keeney v.
Tamayo-Reyes, 504 U. S. 1, 8, whose
threshold standard of diligence is codified in § 2254(e )(2)'s
opening clause. The Court's interpretation also avoids putting §
2254(e)(2) in needless tension with § 2254(d), which authorizes
habeas relief if the prisoner developed his claim in state court
and can prove the state court's decision was "contrary to, or an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States." This Court
rejects the Commonwealth's arguments for a "no-fault" reading: that
treating the prisoner's lack of diligence in state court as a
prerequisite for application of § 2254(e )(2) renders a nullity of
§ 2254(e )(2)(A)(ii)'s provision requiring the prisoner to show "a
factual predicate [of his claim] could not have been previously
discovered through the exercise of due diligence"; and that
anything less than a no-fault understanding of § 2254(e )(2) is
contrary to AEDPA's purpose to further comity, finality, and
federalism principles. Pp. 431-437.
(c) Petitioner did not exercise the diligence required to
preserve his claim that nondisclosure of Cruse's psychiatric report
contravened
Brady. The report, which mentioned Cruse had
little recollection of the murders because he was intoxicated at
the time, was prepared before petitioner was tried; yet it was not
raised by petitioner until he filed his federal habeas petition.
Given evidence in the record that his state habeas counsel knew of
the report's existence and its potential
422
Syllabus
importance, yet failed to investigate in anything but a cursory
manner, this Court is not satisfied with petitioner's explanation
that, although an investigator for his federal habeas counsel
discovered the report in Cruse's court file, his state counsel had
not seen the report when he reviewed the same file. Because this
constitutes a failure to develop the factual basis of petitioner's
Brady claim in state court, this Court must determine if the
requirements in the balance of §2254(e)(2) are satisfied so that
petitioner's failure is excused. Subparagraph (B) of § 2254(e)(2)
conditions a hearing upon a showing, by clear and convincing
evidence, that no reasonable factfinder would have found petitioner
guilty of capital murder but for the alleged constitutional error.
Petitioner concedes he cannot make this showing, and the case has
been presented to this Court on that premise. Accordingly, the
Fourth Circuit's judgment barring an evidentiary hearing on this
claim is affirmed. Pp.437-440.
(d) However, petitioner has met the burden of showing he was
diligent in efforts to develop the facts supporting his juror bias
and prosecutorial misconduct claims in state court. Those claims
are based on two questions posed by the trial judge at
voir
dire. First, the judge asked prospective jurors whether any of
them was related to,
inter al ios, Deputy Sheriff Meinhard,
who investigated the crime scene, interrogated Cruse, and later
became the prosecution's first witness. Venire member Stinnett, who
had divorced Meinhard after a 17-year marriage and four children,
remained silent, thereby indicating the answer to the question was
"no." Second, the judge asked whether any prospective juror had
ever been represented by any of the attorneys in the case,
including prosecutor Woodson. Stinnett again said nothing, although
Woodson had represented her during her divorce from Meinhard.
Later, Woodson admitted he knew Stinnett and Meinhard had been
married and divorced, but stated that he did not consider divorced
people to be "related" and that he had no recollection of having
been involved as a private attorney in the divorce. Stinnett's
silence after the first question could suggest to the factfinder an
unwillingness to be forthcoming; this in turn could bear on her
failure to disclose that Woodson had been her attorney. Moreover,
her failure to divulge material information in response to the
second question was misleading as a matter of fact because Woodson
was her counsel. Coupled with Woodson's own reticence, these
omissions as a whole disclose the need for an evidentiary hearing.
This Court disagrees with the Fourth Circuit's conclusion that
petitioner's state habeas counsel should have discovered Stinnett's
relationship to Meinhard and Woodson. The trial record contains no
evidence which would have put a reasonable attorney on notice that
Stinnett's nonresponse was a deliberate omission of material
information,
423
and counsel had no reason to believe Stinnett had been married
to Meinhard or been represented by Woodson. Moreover, because state
postconviction relief was no longer available at the time the facts
came to light, it would have been futile for petitioner to return
to the Virginia courts, so that he cannot be said to have failed to
develop the facts in state court by reason of having neglected to
pursue remedies available under Virginia law. The foregoing
analysis establishes cause for any procedural default petitioner
may have committed in not presenting these claims to the Virginia
courts in the first instance. Questions regarding the standard for
determining the prejudice that petitioner must establish to obtain
relief on these claims can be addressed by the lower courts during
further proceedings. These courts should take due account of the
District Court's earlier decision to grant an evidentiary hearing
based in part on its belief that Stinnett deliberately lied on
voir dire. Pp. 440-444.
189 F.3d
421, affirmed in part, reversed in part, and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court.
John H. Blume argued the cause for petitioner. With him
on the briefs were
Keir M. Weyble, Barbara L. Hartung, by
appointment of the Court, 528 U. S. 1044, and
James E.
Moore.
Donald R. Curry, Senior Assistant Attorney General of
Virginia, argued the cause for respondent. With him on the brief
was
Mark L. Earley, Attorney General. *
* A brief of
amici curiae urging affirmance was filed for
the State of California et al. by
Bill Lockyer, Attorney
General of California,
David P. Druliner, Chief Assistant
Attorney General,
John R. Gorey, Acting Senior Assistant
Attorney General, and
Donald E. De Nicola, Deputy Attorney
General, and by the Attorneys General for their respective States
as follows:
Bill Pryor of Alabama,
Janet Napolitano
of Arizona,
Mark Pryor of Arkansas,
M. Jane Brady of
Delaware,
Robert A. Butterworth of Florida,
Thurbert E.
Baker of Georgia,
James E. Ryan of Illinois,
Jeffrey
A. M odisett of Indiana,
J. Joseph Curran, Jr.,
of Maryland,
Thomas F.
Reilly of Massachusetts,
Jeremiah W (Jay) Nixon of Missouri,
Joseph P. Mazurek
of Montana,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
Michael F.
Easley of North
Carolina,
W A. Drew Edmondson of Oklahoma,
Hardy
Myers of Oregon,
D. Michael Fisher of Pennsylvania,
Charles M. Condon of South Carolina,
Mark Barnett of
South Dakota,
424
JUSTICE KENNEDY delivered the opinion of the Court. Petitioner
Michael Wayne Williams received a capital sentence for the murders
of Morris Keller, Jr., and Keller's wife, Mary Elizabeth.
Petitioner later sought a writ of habeas corpus in federal court.
Accompanying his petition was a request for an evidentiary hearing
on constitutional claims which, he alleged, he had been unable to
develop in statecourt proceedings. The question in this case is
whether 28 U. S. C. § 2254(e)(2) (1994 ed., Supp. III), as amended
by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, bars the evidentiary hearing petitioner
seeks. If petitioner "has failed to develop the factual basis of
[his] claim[s] in State court proceedings," his case is subject to
§ 2254(e)(2), and he may not receive a hearing because he concedes
his inability to satisfy the statute's further stringent conditions
for excusing the deficiency.
I
On the evening of February 27, 1993, Verena Lozano James dropped
off petitioner and his friend Jeffrey Alan Cruse near a local store
in a rural area of Cumberland County, Virginia. The pair planned to
rob the store's employees and customers using a .357 revolver
petitioner had stolen in the course of a quadruple murder and
robbery he had committed two months earlier. Finding the store
closed, petitioner and Cruse walked to the Kellers' home.
Petitioner was familiar with the couple, having grown up down the
road from where they lived. He told Cruse they would have "a couple
thousand dollars." App. 78. Cruse, who had been holding the .357,
handed the gun to petitioner and knocked on the door. When Mr.
Keller opened the door, petitioner pointed the gun at him as the
two intruders forced their way inside. Petitioner and Cruse forced
Mr. Keller to the kitchen, where
John Cornyn of Texas, Jan Graham of Utah, and Christine Q
Gregoire of Washington.
425
they discovered Mrs. Keller. Petitioner ordered the captives to
remove their clothing. While petitioner kept guard on the Kellers,
Cruse searched the house for money and other valuables. He found a
.38-caliber handgun and bullets. Upon Cruse's return to the
kitchen, petitioner had Cruse tie their captives with telephone
cords. The Kellers were confined to separate closets while the
intruders continued ransacking the house.
When they gathered all they wanted, petitioner and Cruse decided
to rape Mrs. Keller. With Mrs. Keller pleading with them not to
hurt her or her husband, petitioner raped her. Cruse did the same.
Petitioner then ordered the Kellers to shower and dress and "take a
walk" with him and Cruse.
Id., at 97. As they were leaving,
petitioner told Mrs. Keller he and Cruse were going to burn down
the house. Mrs. Keller begged to be allowed to retrieve her
marriage license, which she did, guarded by petitioner.
As the prosecution later presented the case, details of the
murders were as follows. Petitioner, now carrying the .38, and
Cruse, carrying the .357, took the Kellers to a thicket down a dirt
road from the house. With petitioner standing behind Mr. Keller and
Cruse behind Mrs. Keller, petitioner told Cruse, "We'll shoot at
the count of three."
Id., at 103. At the third count,
petitioner shot Mr. Keller in the head, and Mr. Keller collapsed to
the ground. Cruse did not shoot Mrs. Keller at the same moment.
Saying "he didn't want to leave no witnesses," petitioner urged
Cruse to shoot Mrs. Keller.
Ibid. Cruse fired one shot into
her head. Despite his wound, Mr. Keller stood up, but petitioner
shot him a second time. To ensure the Kellers were dead, petitioner
shot each of them two or three more times.
After returning to the house and loading the stolen property
into the Kellers' jeep, petitioner and Cruse set fire to the house
and drove the jeep to Fredericksburg, Virginia, where they sold
some of the property. They threw the re-
426
maining property and the .357 revolver into the Rappahannock
River and set fire to the jeep.
Pursuing a lead from Verena James, the police interviewed Cruse
about the fire at the Kellers' home. Petitioner had fled to
Florida. Cruse provided no useful information until the police
discovered the bodies of the victims, at which point Cruse
consulted counsel. In a plea bargain Cruse agreed to disclose the
details of the crimes in exchange for the Commonwealth's promise
not to seek the death penalty against him. Cruse described the
murders but made no mention of his own act of rape. When the
Commonwealth discovered the omission, it revoked the plea agreement
and charged Cruse with capital murder.
Petitioner was arrested and charged with robbery, abduction,
rape, and the capital murders of the Kellers. At trial in January
1994, Cruse was the Commonwealth's main witness. He recounted the
murders as we have just described. Cruse testified petitioner raped
Mrs. Keller, shot Mr. Keller at least twice, and shot Mrs. Keller
several times after she had been felled by Cruse's bullet. He also
described petitioner as the mastermind of the murders. The
circumstances of the first plea agreement between the Commonwealth
and Cruse and its revocation were disclosed to the jury.
Id., at 158-159. Testifying on his own behalf, petitioner
admitted he was the first to shoot Mr. Keller and it was his idea
to rob the store and set fire to the house. He denied, however,
raping or shooting Mrs. Keller, and claimed to have shot Mr. Keller
only once. Petitioner blamed Cruse for the remaining shots and
disputed some other parts of Cruse's testimony.
The jury convicted petitioner on all counts. After considering
the aggravating and mitigating evidence presented during the
sentencing phase, the jury found the aggravating circumstances of
future dangerousness and vileness of the crimes and recommended a
death sentence. The trial court imposed the recommended sentence.
The Supreme Court
427
of Virginia affirmed petitioner's convictions and sentence,
Williams v.
Commonwealth, 248 Va. 528, 450 S. E. 2d
365 (1994), and we denied certiorari,
Williams v.
Virginia, 515 U. S. 1161 (1995). In a separate proceeding,
Cruse pleaded guilty to the capital murder of Mrs. Keller and the
firstdegree murder of Mr. Keller. After the prosecution asked the
sentencing court to spare his life because of his testimony against
petitioner, Cruse was sentenced to life imprisonment.
Petitioner filed a habeas petition in state court alleging, in
relevant part, that the Commonwealth failed to disclose a second
agreement it had reached with Cruse after the first one was
revoked. The new agreement, petitioner alleged, was an informal
undertaking by the prosecution to recommend a life sentence in
exchange for Cruse's testimony. Finding no merit to petitioner's
claims, the Virginia Supreme Court dismissed the habeas petition,
and we again denied certiorari.
Williams v.
Netherland, 519 U. S. 877 (1996).
Petitioner filed a habeas petition in the United States District
Court for the Eastern District of Virginia on November 20, 1996. In
addition to his claim regarding the alleged undisclosed agreement
between the Commonwealth and Cruse, the petition raised three
claims relevant to questions now before us. First, petitioner
claimed the prosecution had violated
Brady v.
Maryland, 373
U. S. 83 (1963), in failing to disclose a report of a
confidential pretrial psychiatric examination of Cruse. Second,
petitioner alleged his trial was rendered unfair by the seating of
a juror who at
voir dire had not revealed possible sources
of bias. Finally, petitioner alleged one of the prosecutors
committed misconduct in failing to reveal his knowledge of the
juror's possible bias.
The District Court granted an evidentiary hearing on the
undisclosed agreement and the allegations of juror bias and
prosecutorial misconduct but denied a hearing on the psychiatric
report. Before the evidentiary hearing could be held, the
Commonwealth filed an application for an emergency
428
stay and a petition for a writ of mandamus and prohibition in
the Court of Appeals. The Commonwealth argued that petitioner's
evidentiary hearing was prohibited by 28 U. S. C. § 2254(e)(2)
(1994 ed., Supp. III). A divided panel of the Court of Appeals
granted the emergency stay and remanded for the District Court to
apply the statute to petitioner's request for an evidentiary
hearing. On remand, the District Court vacated its order granting
an evidentiary hearing and dismissed the petition, having
determined petitioner could not satisfy § 2254(e)(2)'s
requirements.
The Court of Appeals affirmed. It first considered petitioner's
argument that § 2254(e)(2) did not apply to his case because he had
been diligent in attempting to develop his claims in state court.
Citing its decision in
Cardwell v.
Greene, 152 F.3d
331 (CA4), cert. denied, 525 U. S. 1037 (1998), the
Court of Appeals agreed with petitioner that § 2254(e)(2) would not
apply if he had exercised diligence in state court. The court held,
however, that petitioner had not been diligent and so had "failed
to develop" in state court the factual bases of his
Brady,
juror bias, and prosecutorial misconduct claims. See
189 F.3d
421, 426
(CA4 1999). The Court of Appeals concluded
petitioner could not satisfy the statute's conditions for excusing
his failure to develop the facts and held him barred from receiving
an evidentiary hearing. The Court of Appeals ruled in the
alternative that, even if § 2254(e)(2) did not apply, petitioner
would be ineligible for an evidentiary hearing under the cause and
prejudice standard of pre-AEDPA law. See
id., at 428.
Addressing petitioner's claim of an undisclosed informal
agreement between the Commonwealth and Cruse, the Court of Appeals
rejected it on the merits under 28 U. S. C. § 2254(d)(1) and, as a
result, did not consider whether § 2254(e)(2) applied. See 189 F.
3d, at 429.
On October 18, 1999, petitioner filed an application for stay of
execution and a petition for a writ of certiorari. On Octo-
429
ber 28, we stayed petitioner's execution and granted certiorari
to decide whether § 2254(e)(2) precludes him from receiving an
evidentiary hearing on his claims. See 528 U. S. 960 (1999). We now
affirm in part and reverse in part.
II A
Petitioner filed his federal habeas petition after AEDPA's
effective date, so the statute applies to his case. See
Lindh v.
Murphy, 521 U. S. 320, 326-327
(1997). The Commonwealth argues AEDPA bars petitioner from
receiving an evidentiary hearing on any claim whose factual basis
was not developed in state court, absent narrow circumstances not
applicable here. Petitioner did not develop, or raise, his claims
of juror bias, prosecutorial misconduct, or the prosecution's
alleged
Brady violation regarding Cruse's psychiatric report
until he filed his federal habeas petition. Petitioner explains he
could not have developed the claims earlier because he was unaware,
through no fault of his own, of the underlying facts. As a
consequence, petitioner contends, AEDPA erects no barrier to an
evidentiary hearing in federal court.
Section 2254(e)(2), the provision which controls whether
petitioner may receive an evidentiary hearing in federal district
court on the claims that were not developed in the Virginia courts,
becomes the central point of our analysis. It provides as
follows:
"If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows
that-
"(A) the claim relies on-
"(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or
430
"(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
"(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense."
By the terms of its opening clause the statute applies only to
prisoners who have "failed to develop the factual basis of a claim
in State court proceedings." If the prisoner has failed to develop
the facts, an evidentiary hearing cannot be granted unless the
prisoner's case meets the other conditions of § 2254(e)(2). Here,
petitioner concedes his case does not comply with § 2254(e)(2)(B),
see Brief for Petitioner 25, so he may receive an evidentiary
hearing only if his claims fall outside the opening clause.
There was no hearing in state court on any of the claims for
which petitioner now seeks an evidentiary hearing. That, says the
Commonwealth, is the end of the matter. In its view petitioner,
whether or not through his own fault or neglect, still "failed to
develop the factual basis of a claim in State court proceedings."
Petitioner, on the other hand, says the phrase "failed to develop"
means lack of diligence in developing the claims, a defalcation he
contends did not occur since he made adequate efforts during
state-court proceedings to discover and present the underlying
facts. The Court of Appeals agreed with petitioner's interpretation
of § 2254(e)(2) but believed petitioner had not exercised enough
diligence to avoid the statutory bar. See 189 F. 3d, at 426. We
agree with petitioner and the Court of Appeals that "failed to
develop" implies some lack of diligence; but, unlike the Court of
Appeals, we find no lack of diligence on petitioner's part with
regard to two of his three claims.
431
B
We start, as always, with the language of the statute. See
United States v.
Ron Pair Enterprises, Inc., 489 U. S. 235, 241
(1989). Section 2254(e)(2) begins with a conditional clause, "[i]f
the applicant has failed to develop the factual basis of a claim in
State court proceedings," which directs attention to the prisoner's
efforts in state court. We ask first whether the factual basis was
indeed developed in state court, a question susceptible, in the
normal course, of a simple yes or no answer. Here the answer is
no.
The Commonwealth would have the analysis begin and end there.
Under its no-fault reading of the statute, if there is no factual
development in the state court, the federal habeas court may not
inquire into the reasons for the default when determining whether
the opening clause of § 2254(e)(2) applies. We do not agree with
the Commonwealth's interpretation of the word "failed."
We do not deny "fail" is sometimes used in a neutral way, not
importing fault or want of diligence. So the phrase "We fail to
understand his argument" can mean simply "We cannot understand his
argument." This is not the sense in which the word "failed" is used
here, however.
We give the words of a statute their" 'ordinary, contemporary,
common meaning,'" absent an indication Congress intended them to
bear some different import.
Walters v.
Metropolitan Ed.
Enterprises, Inc., 519 U. S. 202, 207 (1997)
(quoting
Pioneer Investment Services Co. v.
Brunswick
Associates Ltd. Partnership, 507 U. S. 380 (1993)).
See also
Bailey v.
United States, 516 U. S. 137, 141
(1995). In its customary and preferred sense, "fail" connotes some
omission, fault, or negligence on the part of the person who has
failed to do something. See,
e. g., Webster's New
International Dictionary 910 (2d ed. 1939) (defining "fail" as "to
be wanting; to fall short; to be or become deficient in any measure
or degree," and "failure" as "a falling short," "a deficiency
or
432
lack," and an "[o]mission to perform"); Webster's New
International Dictionary 814 (3d ed. 1993) ("to leave some possible
or expected action unperformed or some condition unachieved"). See
also Black's Law Dictionary 594 (6th ed. 1990) (defining "fail" as
"[f]ault, negligence, or refusal"). To say a person has failed in a
duty implies he did not take the necessary steps to fulfill it. He
is, as a consequence, at fault and bears responsibility for the
failure. In this sense, a person is not at fault when his diligent
efforts to perform an act are thwarted, for example, by the conduct
of another or by happenstance. Fault lies, in those circumstances,
either with the person who interfered with the accomplishment of
the act or with no one at all. We conclude Congress used the word
"failed" in the sense just described. Had Congress intended a
no-fault standard, it would have had no difficulty in making its
intent plain. It would have had to do no more than use, in lieu of
the phrase "has failed to," the phrase "did not."
Under the opening clause of § 2254(e)(2), a failure to develop
the factual basis of a claim is not established unless there is
lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner's counsel. In this we agree with the Court
of Appeals and with all other courts of appeals which have
addressed the issue. See,
e. g., Baja v.
Ducharme,
187 F.3d
1075, 1078-1079
(CA9 1999);
Miller v.
Champion, 161 F.3d
1249, 1253 (CAlO 1998);
Cardwell, 152 F. 3d, at 337;
McDonald v.
Johnson, 139 F.3d
1056, 1059
(CA5 1998);
Burris v.
Parke,
116 F.3d
256, 258
(CA7 1997); Love v.
Morton, 112 F.3d
131, 136
(CA3 1997).
Our interpretation of § 2254(e)(2)'s opening clause has support
in
Keeney v.
Tamayo-Reyes, 504 U. S. 1 (1992), a case
decided four years before AEDPA's enactment. In
Keeney, a
prisoner with little knowledge of English sought an evidentiary
hearing in federal court, alleging his
nolo contendere plea
to a manslaughter charge was not knowing and voluntary because of
inaccuracies in the translation of the plea
433
proceedings. The prisoner had not developed the facts of his
claim in state collateral proceedings, an omission caused by the
negligence of his state postconviction counsel. See
id., at
4, 8-9. The Court characterized this as the "prisoner's failure to
develop material facts in state court."
Id., at 8. We
required the prisoner to demonstrate cause and prejudice excusing
the default before he could receive a hearing on his claim,
ibid., unless the prisoner could "show that a fundamental
miscarriage of justice would result from failure to hold a federal
evidentiary hearing,"
id., at 12.
Section 2254(e)(2)'s initial inquiry into whether "the applicant
has failed to develop the factual basis of a claim in State court
proceedings" echoes
Keeney's language regarding "the state
prisoner's failure to develop material facts in state court." In
Keeney, the Court borrowed the cause and prejudice standard
applied to procedurally defaulted claims, see
Wainwright v.
Sykes, 433 U.
S. 72, 87-88 (1977), deciding there was no reason "to
distinguish between failing to properly assert a federal claim in
state court and failing in state court to properly develop such a
claim."
Keeney, supra, at 8. As is evident from the
similarity between the Court's phrasing in
Keeney and the
opening clause of § 2254(e)(2), Congress intended to preserve at
least one aspect of
Keeney's holding: prisoners who are at
fault for the deficiency in the state-court record must satisfy a
heightened standard to obtain an evidentiary hearing. To be sure,
in requiring that prisoners who have not been diligent satisfy §
2254(e)(2)'s provisions rather than show cause and prejudice, and
in eliminating a freestanding "miscarriage of justice" exception,
Congress raised the bar
Keeney imposed on prisoners who were
not diligent in state-court proceedings. Contrary to the
Commonwealth's position, however, there is no basis in the text of
§ 2254(e)(2) to believe Congress used "fail" in a different sense
than the Court did in
Keeney or otherwise intended the
statute's further, more stringent requirements to control the
availability of an evidentiary hear-
434
ing in a broader class of cases than were covered by
Keeney's cause and prejudice standard.
In sum, the opening clause of § 2254(e)(2) codifies
Keeney's threshold standard of diligence, so that prisoners
who would have had to satisfy
Keeney's test for excusing the
deficiency in the state-court record prior to AEDPA are now
controlled by § 2254(e)(2). When the words of the Court are used in
a later statute governing the same subject matter, it is respectful
of Congress and of the Court's own processes to give the words the
same meaning in the absence of specific direction to the contrary.
See
Lorillard v.
Pons, 434 U. S. 575, 581 (1978)
("[W]here ... Congress adopts a new law incorporating sections of a
prior law, Congress normally can be presumed to have had knowledge
of the interpretation given to the incorporated law, at least
insofar as it affects the new statute"). See also
Cottage
Savings Assn. v.
Commissioner, 499 U. S. 554, 562
(1991).
Interpreting § 2254(e)(2) so that "failed" requires lack of
diligence or some other fault avoids putting it in needless tension
with § 2254(d). A prisoner who developed his claim in state court
and can prove the state court's decision was "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States," is not barred from obtaining relief by § 2254(d)(1). See
Williams v.
Taylor, ante, at 412-413 (majority
opinion). If the opening clause of § 2254(e)(2) covers a request
for an evidentiary hearing on a claim which was pursued with
diligence but remained undeveloped in state court because, for
instance, the prosecution concealed the facts, a prisoner lacking
clear and convincing evidence of innocence could be barred from a
hearing on the claim even if he could satisfy § 2254(d). See 28 U.
S. C. § 2254(e)(2)(B). The "failed to develop" clause does not bear
this harsh reading, which would attribute to Congress a purpose or
design to bar evidentiary hearings for diligent prisoners with
meritorious claims just because the prosecution's
435
conduct went undetected in state court. We see no indication
that Congress by this language intended to remove the distinction
between a prisoner who is at fault and one who is not.
The Commonwealth argues a reading of "failed to develop"
premised on fault empties § 2254(e)(2)(A)(ii) of its meaning. To
treat the prisoner's lack of diligence in state court as a
prerequisite for application of § 2254(e)(2), the Commonwealth
contends, renders a nullity of the statute's own diligence
provision requiring the prisoner to show "a factual predicate [of
his claim] could not have been previously discovered through the
exercise of due diligence." § 2254(e)(2)(A)(ii). We disagree.
The Commonwealth misconceives the inquiry mandated by the
opening clause of § 2254(e)(2). The question is not whether the
facts could have been discovered but instead whether the prisoner
was diligent in his efforts. The purpose of the fault component of
"failed" is to ensure the prisoner undertakes his own diligent
search for evidence. Diligence for purposes of the opening clause
depends upon whether the prisoner made a reasonable attempt, in
light of the information available at the time, to investigate and
pursue claims in state court; it does not depend, as the
Commonwealth would have it, upon whether those efforts could have
been successful. Though lack of diligence will not bar an
evidentiary hearing if efforts to discover the facts would have
been in vain, see § 2254(e)(2)(A)(ii), and there is a convincing
claim of innocence, see § 2254(e)(2)(B), only a prisoner who has
neglected his rights in state court need satisfy these conditions.
The statute's later reference to diligence pertains to cases in
which the facts could not have been discovered, whether there was
diligence or not. In this important respect § 2254(e)(2)(A)(ii)
bears a close resemblance to (e)(2)(A)(i), which applies to a new
rule that was not available at the time of the earlier proceedings.
Cf.
Gutierrez v.
Ada, 528 U. S. 250, 255 (2000)
("[W]ords and people are known by
436
their companions"). Cf. also
United States v.
Locke,
ante, at 105. In these two parallel provisions Congress has
given prisoners who fall within § 2254(e)(2)'s opening clause an
opportunity to obtain an evidentiary hearing where the legal or
factual basis of the claims did not exist at the time of
state-court proceedings.
We are not persuaded by the Commonwealth's further argument that
anything less than a no-fault understanding of the opening clause
is contrary to AEDPA's purpose to further the principles of comity,
finality, and federalism. There is no doubt Congress intended AEDPA
to advance these doctrines. Federal habeas corpus principles must
inform and shape the historic and still vital relation of mutual
respect and common purpose existing between the States and the
federal courts. In keeping this delicate balance we have been
careful to limit the scope of federal intrusion into state criminal
adjudications and to safeguard the States' interest in the
integrity of their criminal and collateral proceedings. See,
e.
g., Coleman v.
Thompson, 501 U. S. 722, 726 (1991)
("This is a case about federalism. It concerns the respect that
federal courts owe the States and the States' procedural rules when
reviewing the claims of state prisoners in federal habeas corpus");
McCleskey v.
Zant, 499 U. S. 467, 493 (1991)
("[T]he doctrines of procedural default and abuse of the writ are
both designed to lessen the injury to a State that results through
reexamination of a state conviction on a ground that the State did
not have the opportunity to address at a prior, appropriate time;
and both doctrines seek to vindicate the State's interest in the
finality of its criminal judgments").
It is consistent with these principles to give effect to
Congress' intent to avoid unneeded evidentiary hearings in federal
habeas corpus, while recognizing the statute does not equate
prisoners who exercise diligence in pursuing their claims with
those who do not. Principles of exhaustion are premised upon
recognition by Congress and the Court that state judiciaries have
the duty and competence to vindicate
437
rights secured by the Constitution in state criminal
proceedings. Diligence will require in the usual case that the
prisoner, at a minimum, seek an evidentiary hearing in state court
in the manner prescribed by state law. "Comity ... dictates that
when a prisoner alleges that his continued confinement for a state
court conviction violates federal law, the state courts should have
the first opportunity to review this claim and provide any
necessary relief."
O'Sullivan v.
Boerckel, 526 U. S. 838, 844
(1999). For state courts to have their rightful opportunity to
adjudicate federal rights, the prisoner must be diligent in
developing the record and presenting, if possible, all claims of
constitutional error. If the prisoner fails to do so, himself or
herself contributing to the absence of a full and fair adjudication
in state court, § 2254(e)(2) prohibits an evidentiary hearing to
develop the relevant claims in federal court, unless the statute's
other stringent requirements are met. Federal courts sitting in
habeas are not an alternative forum for trying facts and issues
which a prisoner made insufficient effort to pursue in state
proceedings. Yet comity is not served by saying a prisoner "has
failed to develop the factual basis of a claim" where he was unable
to develop his claim in state court despite diligent effort. In
that circumstance, an evidentiary hearing is not barred by §
2254(e)(2).
III
Now we apply the statutory test. If there has been no lack of
diligence at the relevant stages in the state proceedings, the
prisoner has not "failed to develop" the facts under § 2254(e)(2)'s
opening clause, and he will be excused from showing compliance with
the balance of the subsection's requirements. We find lack of
diligence as to one of the three claims but not as to the other
two.
A
Petitioner did not exercise the diligence required to preserve
the claim that nondisclosure of Cruse's psychiatric re-
438
port was in contravention of
Brady v.
Maryland,
373 U. S. 83
(1963). The report concluded Cruse "ha[d] little recollection of
the [murders of the Kellers], other than vague memories, as he was
intoxicated with alcohol and marijuana at the time." App. 495. The
report had been prepared in September 1993, before petitioner was
tried; yet it was not mentioned by petitioner until he filed his
federal habeas petition and attached a copy of the report.
Petitioner explained that an investigator for his federal habeas
counsel discovered the report in Cruse's court file but state
habeas counsel had not seen it when he had reviewed the same file.
State habeas counsel averred as follows:
"Prior to filing [petitioner's] habeas corpus petition with the
Virginia Supreme Court, I reviewed the Cumberland County court
files of [petitioner] and of his codefendant, Jeffrey Cruse .... I
have reviewed the attached psychiatric evaluation of Jeffrey Cruse
.... I have no recollection of seeing this report in Mr. Cruse's
court file when I examined the file. Given the contents of the
report, I am confident that I would remember it." Id., at
625-626.
The trial court was not satisfied with this explanation for the
late discovery. Nor are we.
There are repeated references to a "psychiatric" or "mental
health" report in a transcript of Cruse's sentencing proceeding, a
copy of which petitioner's own state habeas counsel attached to the
state habeas petition he filed with the Virginia Supreme Court. The
transcript reveals that Cruse's attorney described the report with
details that should have alerted counsel to a possible
Brady
claim. As Cruse's attorney said:
"The psychiatric report ... point[s] out that [Cruse] is
significantly depressed. He suffered from post traumatic stress.
His symptoms include nightmares, sleeplessness, sobbing, reddening
of the face, severe depres-
439
sion, flash backs .... [T]he psychological report states he is
overwhelmed by feelings of guilt and shame in his actions. He is
numb. He is trying to suppress his feelings, but when he has
feelings, there is only pain and sadness." App. 424.
The description accords with the contents of the psychiatric
report, which diagnosed Cruse as suffering from posttraumatic
stress disorder:
"[Cruse] has recurrent nightmares and visualizes the face of the
woman that he killed. When attempting to describe this nightmare,
he breaks openly into tears and his face reddens .... He continues
to feel worthless as a person .... He has no hope for his future
and has been thinking of suicide constantly .... He does describe
inability to sleep, often tossing and turning, waking up, and
feeling fatigued during the day .... He described neurovegetative
symptoms of major depression and post-traumatic nightmares,
recurrent in nature, of the [murders]." Id., at 495-499.
The transcript put petitioner's state habeas counsel on notice
of the report's existence and possible materiality. The sole
indication that counsel made some effort to investigate the report
is an October 30, 1995, letter to the prosecutor in which counsel
requested "[a]ll reports of physical and mental examinations,
scientific tests, or experiments conducted in connection with the
investigation of the offense, including but not limited to: ...
[a]ll psychological test or polygraph examinations performed upon
any prosecution witness and all documents referring or relating to
such tests .... "
Id., at 346-347. After the prosecution
declined the requests absent a court order,
id., at 353, it
appears counsel made no further efforts to find the specific report
mentioned by Cruse's attorney. Given knowledge of the report's
existence and potential importance, a diligent attorney would have
done more. Counsel's failure to investigate these references
440
in anything but a cursory manner triggers the opening clause of
§ 2254(e)(2).
As we hold there was a failure to develop the factual basis of
this
Brady claim in state court, we must determine if the
requirements in the balance of § 2254(e)(2) are satisfied so that
petitioner's failure is excused. Subparagraph (B) of § 2254(e)(2)
conditions a hearing upon a showing, by clear and convincing
evidence, that no reasonable factfinder would have found petitioner
guilty of capital murder but for the alleged constitutional error.
Petitioner concedes he cannot make this showing, see Brief for
Petitioner 25, and the case has been presented to us on that
premise. For these reasons, we affirm the Court of Appeals'
judgment barring an evidentiary hearing on this claim.
B
We conclude petitioner has met the burden of showing he was
diligent in efforts to develop the facts supporting his juror bias
and prosecutorial misconduct claims in collateral proceedings
before the Virginia Supreme Court.
Petitioner's claims are based on two of the questions posed to
the jurors by the trial judge at
voir dire. First, the judge
asked prospective jurors, "Are any of you related to the following
people who may be called as witnesses?" Then he read the jurors a
list of names, one of which was "Deputy Sheriff Claude Meinhard."
Bonnie Stinnett, who would later become the jury foreperson, had
divorced Meinhard in 1979, after a 17-year marriage with four
children. Stinnett remained silent, indicating the answer was "no."
Meinhard, as the officer who investigated the crime scene and
interrogated Cruse, would later become the prosecution's lead-off
witness at trial.
After reading the names of the attorneys involved in the case,
including one of the prosecutors, Robert Woodson, Jr., the judge
asked, "Have you or any member of your immediate family ever been
represented by any of the aforemen-
441
tioned attorneys?" Stinnett again said nothing, despite the fact
Woodson had represented her during her divorce from Meinhard. App.
483, 485.
In an affidavit she provided in the federal habeas proceedings,
Stinnett claimed "[she] did not respond to the judge's [first]
question because [she] did not consider [herself] 'related' to
Claude Meinhard in 1994 [at
voir dire] .... Once our
marriage ended in 1979, I was no longer related to him."
Id., at 627. As for Woodson's earlier representation of her,
Stinnett explained as follows:
"When Claude and I divorced in 1979, the divorce was uncontested
and Mr. Woodson drew up the papers so that the divorce could be
completed. Since neither Claude nor I was contesting anything, I
didn't think Mr. Woodson 'represented' either one of us."
Id., at 628.
Woodson provided an affidavit in which he admitted "[he] was
aware that Juror Bonnie Stinnett was the ex-wife of then Deputy
Sheriff Claude Meinhard and [he] was aware that they had been
divorced for some time."
Id., at 629. Woodson stated,
however, "[t]o [his] mind, people who are related only by marriage
are no longer 'related' once the marriage ends in divorce."
Ibid. Woodson also "had no recollection of having been
involved as a private attorney in the divorce proceedings between
Claude Meinhard and Bonnie Stinnett."
Id., at 629-630. He
explained that "[w]hatever [his] involvement was in the 1979
divorce, by the time of trial in 1994 [he] had completely forgotten
about it."
Id., at 630.
Even if Stinnett had been correct in her technical or literal
interpretation of the question relating to Meinhard, her silence
after the first question was asked could suggest to the finder of
fact an unwillingness to be forthcoming; this in turn could bear on
the veracity of her explanation for not disclosing that Woodson had
been her attorney. Stinnett's failure to divulge material
information in response to the second
442
question was misleading as a matter of fact because, under any
interpretation, Woodson had acted as counsel to her and Meinhard in
their divorce. Coupled with Woodson's own reticence, these
omissions as a whole disclose the need for an evidentiary hearing.
It may be that petitioner could establish that Stinnett was not
impartial, see
Smith v.
Phillips, 455 U. S. 209, 217,
219-221 (1982), or that Woodson's silence so infected the trial as
to deny due process, see
Donnelly v.
DeChristoforo,
416 U. S. 637,
647-648 (1974).
In ordering an evidentiary hearing on the juror bias and
prosecutorial misconduct claims, the District Court concluded the
factual basis of the claims was not reasonably available to
petitioner's counsel during state habeas proceedings. After the
Court of Appeals vacated this judgment, the District Court
dismissed the petition and the Court of Appeals affirmed under the
theory that state habeas counsel should have discovered Stinnett's
relationship to Meinhard and Woodson. See 189 F. 3d, at 428.
We disagree with the Court of Appeals on this point. The trial
record contains no evidence which would have put a reasonable
attorney on notice that Stinnett's nonresponse was a deliberate
omission of material information. State habeas counsel did attempt
to investigate petitioner's jury, though prompted by concerns about
a different juror. App. 388-389. Counsel filed a motion for expert
services with the Virginia Supreme Court, alleging "irregularities,
improprieties and omissions exist[ed] with respect to the
empaneling
[sic] of the jury."
Id., at 358. Based on
these suspicions, counsel requested funding for an investigator "to
examine all circumstances relating to the empanelment of the jury
and the jury's consideration of the case."
Ibid. The
Commonwealth opposed the motion, and the Virginia Supreme Court
denied it and dismissed the habeas petition, depriving petitioner
of a further opportunity to investigate. The Virginia Supreme
Court's denial of the motion is understandable in light of
petitioner's vague allegations, but the
443
vagueness was not the fault of petitioner. Counsel had no reason
to believe Stinnett had been married to Meinhard or been
represented by Woodson. The underdevelopment of these matters was
attributable to Stinnett and Woodson, if anyone. We do not suggest
the State has an obligation to pay for investigation of as yet
undeveloped claims; but if the prisoner has made a reasonable
effort to discover the claims to commence or continue state
proceedings, § 2254(e)(2) will not bar him from developing them in
federal court.
The Court of Appeals held state habeas counsel was not diligent
because petitioner's investigator on federal habeas discovered the
relationships upon interviewing two jurors who referred in passing
to Stinnett as "Bonnie Meinhard." See Brief for Petitioner 35. The
investigator later confirmed Stinnett's prior marriage to Meinhard
by checking Cumberland County's public records. See 189 F. 3d, at
426 ("The documents supporting [petitioner's] Sixth Amendment
claims have been a matter of public record since Stinnett's divorce
became final in 1979. Indeed, because [petitioner's] federal habeas
counsel located those documents, there is little reason to think
that his state habeas counsel could not have done so as well"). We
should be surprised, to say the least, if a district court familiar
with the standards of trial practice were to hold that in all cases
diligent counsel must check public records containing personal
information pertaining to each and every juror. Because of Stinnett
and Woodson's silence, there was no basis for an investigation into
Stinnett's marriage history. Section 2254(e)(2) does not apply to
petitioner's related claims of juror bias and prosecutorial
misconduct.
We further note the Commonwealth has not argued that petitioner
could have sought relief in state court once he discovered the
factual bases of these claims some time between appointment of
federal habeas counsel on July 2, 1996, and the filing of his
federal habeas petition on November 20, 1996. As an indigent,
petitioner had 120 days following ap-
444
pointment of state habeas counsel to file a petition with the
Virginia Supreme Court. Va. Code Ann. § 8.01-654.1 (1999). State
habeas counsel was appointed on August 10, 1995, about a year
before petitioner's investigator on federal habeas uncovered the
information regarding Stinnett and Woodson. As state postconviction
relief was no longer available at the time the facts came to light,
it would have been futile for petitioner to return to the Virginia
courts. In these circumstances, though the state courts did not
have an opportunity to consider the new claims, petitioner cannot
be said to have failed to develop them in state court by reason of
having neglected to pursue remedies available under Virginia
law.
Our analysis should suffice to establish cause for any
procedural default petitioner may have committed in not presenting
these claims to the Virginia courts in the first instance.
Questions regarding the standard for determining the prejudice that
petitioner must establish to obtain relief on these claims can be
addressed by the Court of Appeals or the District Court in the
course of further proceedings. These courts, in light of cases such
as
Smith, supra, at 215 ("[T]he remedy for allegations of
juror partiality is a hearing in which the defendant has the
opportunity to prove actual bias"), will take due account of the
District Court's earlier decision to grant an evidentiary hearing
based in part on its belief that "Juror Stinnett deliberately
failed to tell the truth on voir dire."
Williams v.
Netherland, Civ. Action No. 3:96CV529 (ED Va., Apr. 13,
1998), App. 529, 557.
IV
Petitioner alleges the Commonwealth failed to disclose an
informal plea agreement with Cruse. The Court of Appeals rejected
this claim on the merits under § 2254(d)(1), so it is unnecessary
to reach the question whether § 2254(e)(2) would permit a hearing
on the claim.
445
The judgment of the Court of Appeals is affirmed in part and
reversed in part, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
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