Amicus Brief for Respondent

    ~ No.89-7024 

  
  

IN THE 

= SUPREME COURT OF THE UNITED STATES | 

a  OcroBER TERM, 1990 

  

WARREN MCCLESKEY, 

; : Vs. = a 

5 Warret D. ZANT, Superiftendent. 
~ Georgia Disgnosiie & Classification Center, 

Respondent 

  

i > : = On Writ of Certiorari to the United States a; 

EU Court of Appeals ford the Blevenih Cirenis > 

  
  

Hx BRIEF AMICUS CURIAEOF THE ~~ 
CRIMINAL JUSTICE LEGAL FOUNDATION | - 

INSUPPORT OF RESPONDENT 

  
  

~ KENTS. SCHEIDEGGER 

Petitioner, 

Criminal Justice Legal Fdn. en 
21311 Street (95816) 

~ Post Office Box 1199 
~ Sacramento, California 05812 rE 

he 

ten Telephone: (916) 446-0345 

Attorney for Amicus Curite . = 
Criminal Justice Legal Poundation, oy  



 



QUESTIONS PRESENTED 

1. 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? 

2. If not, under what other circumstances will the raising of 

a new claim in a second or subsequent petition constitute an 
abuse of the writ? 

 



    

 



TABLE OF CONTENTS 

Interestofamicuscuriae  .S828.2. . « +» vc vss ve v aon 

Summary of facts and case i.-vi: v6 £18 mine 90s ST rnin 

Summaryofargement ~~... LLL LL VS ST RY, 

Argument; ater ss rts rs rs esa re 

The common law writ has little relevance to the proceeding in 

HS COSC: cr tsomiimis droid sie Wak s ial ¥ w Joish Bt FTr © v2 0 

II 
The standards established under Wainwright v. Sykes and its 

progeny should govern abuse of the writ as well as 

procedural defaultoe . 5 5s. avi 275 Cui finie «20 200 

A. Successive petitions before 1963 . . . ......... 

B. The modern law of procedural default . . ....... 

1. Fay v. Noia and Sanders v. United States 

2. The cause and prejudicetest .......... 

3. Defanlisaftertrial .. .. «cv prs 002 0ss 

4. Successive federal petitions .. . v.. .. civ. 

C. Statutory language and history . . ........... 

D.-Conclusion .......... corn Wahl) 50 JEN, 

III 
Petitioner did not have adequate case to omit his Henry claim 

from the first petition .. .... [050 2 58.0 V5 R00 JLIRGE, 

Conclusion ... . . ..ood th dims JA, BE, SBE JUIN E, 

(iif)  



  

iv 

TABLE OF AUTHORITIES 

Cases 

Amadeo v. Zant, 486 U. S. 214, 100 L. Ed. 2d 249, 

1028. Ct. 1771 (1938) .-. & - . .. « » dpsnsnnen Ir unc 21,28 

Barefoot v. Estelle, 463 U. S. 880, 77 L. Ed. 2d 1090, 

1038S. Ct. 338301933) - . « - - os vo aes cas 12, 20 

Blanchard v. Bergeron, 103 L.Ed.2d 67, 

109'S:Ct7030 (1989) 15/1 JL SRL 0 WL ROMIGIOT on 22 

Bowsher v. Merck & Co., Inc., 460 U. S. 824, 75 L. Ed. 2d 580, 

3103S. Ct. 158701933) . . 55. - + = +o cc vv «vena 21 

Brown v. Allen, 344 U. S. 443, 97 L.Ed. 469, 

=~ 73S.Ct397(1953y™ 7 [= 22408 Biov0 Lone Yeon] 7 

Bushell’s Case, 124 Eng. Rep. 1006 (1670) .......... 4,5 

Butler v. McKellar, 110 S. Ct. 1212, 

1081. Bd.2d347(1990) ............%. +... ; 7 

Cross v. Burke, 146 U. S. 82, 36 L. Ed. 896, 

13S. Ct. 22(1892y. . . .. ... . . ees. 12 

Davis v. United States, 411 U. S. 233, 36 L. Ed. 2d 216, 

938. Ct 1377 (1973) a SR SARe A eau 15 

Estelle v. Williams, 425 U. S. 501, 48 L. Ed. 2d 126, 

968.Ct. 1691 (1976) .... .... .....o .. ..... SOBRE). CL... 23 

Ex parte Cuddy, 131 U. S. 280, 33 L.Ed. 154, 

98. Ct. 703(1339) . ..... .. 0... susie 9,10 

Ex parte Cuddy, 40F.62(1889) .......... 8,9, 10, 26, 29 

Ex parte Lange, 18 Wall. (85 U. S.) 163, 
21L.EAS72(I874) . . . . . oo vs viene 6 

   



Ex parte Savin, 131 U. S. 267, 33 L.Ed. 150, 

Ex parte Siebold, 100U.8.371,25 L.Ed. 717 (1880)-.-, .".'.. 6 

Ex parte Watkins, 3 Pet. (28 U. S.) 193, 7 L. Ed. 650 (1830) 5,6 

Ex parte Wilson, 114 U. S. 417, 29 L.Ed. 89, 

SS CL 9351883). . «c.f ase e enn 6 

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 

33S. CLBA%B3) =... oven iran 14 

Francis v. Henderson, 425 U. S. 536, 48 L. Ed. 2d 149, 

96S. CL 17031976). ... . . ces 2 vv eins 15, 16, 17 

Frank v. Mangum, 237 U. S. 309, 59 L.Ed. 969, 

35S. CL.S82U913) .... . cis sities 7 

Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 

02S CL2T26 (197)... « . ce cise 6 

Harris v. Reed, 103 L. Ed. 2d 308, 

109SCL IMRSL19%9) 5 =... «o.oo on viene 17,29 

Herb v. Pitcairn, 324 U. S. 117, 89 L.Ed. 789, 

63STCL- 450 (1945) CL REE MOLE 17 

Inre Belt, 159U.85.95,401..Ed. 88,158. Ct.937(1895) ... 6 

Johnson v. Zerbst, 304 U. S. 458, 82 L.Ed. 1461, 

53S. CL I0IO(1I3B) «is cc vss ve nnonsvins 24 

Mackey v. United States, 401 U. S. 667, 28 L. Ed. 2d 404, 

1S. CLYIOBLIITYY . cc cio nevis viv n ive 19 

Matter of Moran, 203 U. S. 96, 51 L.Ed. 105, 

27S. CL.25(1906) . -. : i... aes ees 6 

McCleskey v. Kemp, 481 U. S. 279, 95 L. Ed. 2d 262, 

1078. CLI736 (1987) - ic ch caves ci es wh, 27  



    

vi 

Moore v. Dempsey, 261 U. S. 86, 67 L.Ed. 543, 

43S. CL265(1923) . .... v.00 ' DURIAOGE. NER. 7 

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397, 

106.8. Ct-2639.L1986). . +: i x ois 5 +7a.24 Sieh 18,21,26,27, 28 

People v. Anderson, 6 Cal.3d 628, 100 Cal. Rptr. 152, 

493 P. 2d: 880{1972) +5: ar pd TAAL YT PLEA 20 

Price v. Johnston, 334 U. S. 266, 92 L.Ed. 1356, 

688.Ct. 1049. (1948). . Vo i ve SSL 11,12. 43,22.26. 29 

Reed v. Ross, 468 U. S. 1, 82 L. Ed. 2d. 1, 

104.8. Ct. 2901 (1984), os s:5a%y aonb midst 18, 19 

Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 

1028. Ct- 1198 1932y + 2h vw a BVENR LY 20iET 27 

Salinger v. Loisel, 265 U. S. 224, 68 L.Ed. 989, 

448.Ct. 31901924)... cn rn Ea, eH 

Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 

838.Ct. 1068(1963)..... ... .-. >. hs oO, 10°14.'22 

Sawyer v. Smith, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (1990) . .21 

Schneckloth v. Bustamonte, 412 U. S. 218, 36 L. Ed. 2d 854, 

93S. CL.RO41 (1973) i 51.5 sate sinks 5odk vid Bin » « » 6,25 

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 

3037 (1870)... "1.5 ahi Ale Te AE 0 J BRI 25 

Townsend v. Sain, 372 U. S. 293, 9 L. Ed. 2d 770, 

83 8:61 7451963 Y= J oo VEL YR UY DY Ves 14 

United States ex rel. McCann v. Adams, 320 U. S. 220, 

SSL.Ed. 4,648. Ct. 14(1942) *. .% -.". » Joa 12 

United States v. Frady, 456 U. S. 152, 71 L. Ed. 2d 816, 

102 S. Ct. 1534(1982y .-- ~~ v:' &7 la Jake 17, 18 

   



vil 

United States v. Henry, 447 U. S. 264, 65 L. Ed. 2d 115, 

1008. Ct. 2183 (1980) * .7.c . Lies i ie se arenes 27 

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594, 

FS. CL2AVTIT) +... i555 cr sven vis 3,13, 16, 26 

Waley v. Johnston, 316 U. S. 101, 86 L.Ed. 1302, 
62.S.Ct:964.(1942) 1:2. 5 3% sir mwivrnid «mre lBuntels 12 

Wong Doo v. United States, 265 U. S. 239, 68 L.Ed. 999, 

AS Ch 241924) . ©. . esc Ee 11,12 

Constitution 

US. Const.uiamend Vio ak insimins S000 al ol wade &. 5 

BS. Const. att YL. 80 "ee eae eae se 5 

Statutes and Rules 

Federal Rules of Criminal Procedure Rule 12(b) ....... 15 

RuleSHD) .. «6: iivahsiatot coco vo» 17 

Habeas Corpus Act, 31 Car. Nec. 2(1679) ........c. « ..... 4 

JudiclaryAct$§ 14, 1Stat. 81 (1789). . . . «vc vv cv un. 5 

Rules Governing Section 2254 Cases in the United States 

DistrictCourts, Rele9(b) " .. ............... 23,25 

BUSC.I244(b) Lisa Da pe 21,25 

2BU.S..C.82255 oc vi stint tirinin wissnvene igs rE vedo io 14 14 

Treatises 

Bator, Finality in Criminal Law and Federal Habeas Corpus for 

State Prisoners, 76 Harv. 1. Rev. 441 (1963) ....... 4,6,7  



  

viii 

Friendly, Is Innocence Irrelevant? Collateral Attack on 
Criminal Judgments,38 U. Chi. L. Rev. 142 . . . .. 7.22, 29 

3 W. Blackstone, Commentaries 131 (1768) . ......... 4,5 

Miscellaneous 

Habeas Corpus: Hearings on H. R. 15319 Before the Subcomm. 
on Criminal Justice of the House Comm. on the Judiciary, 
B41h Cong, 2d Sess. 15(1976) . . . . ...cpi vid siing. 23,24 

H. R. Rep. No. 308, 80th Cong, 1st Sess. (1947) ........ 22 

H. R. Rep. No. 1892, 89th Cong., 2d Sess. (1966) . ...... 22 

H. R. Rep. No. 94-1471, reprinted in 1976 U. S. Code Cong. & 
> AUMINNewsUIB™-, ,,.... 0888 vc porcly &» 25 

S. Rep. No. 1797, 89th Cong., 2d Sess. (1966) . . . . . .. 22,23 

W. Shakespeare, Julius Caesar, act III, scene ii (1598) . . . . .28 

   



IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1990 

  

WARREN MCCLESKEY, 

Petitioner, 

VS. 

WALTER D. ZANT, Superintendent, 
Georgia Diagnostic & Classification Center, 

Respondent. 

  

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit 

  
  

BRIEF AMICUS CURIAE OF THE 
CRIMINAL JUSTICE LEGAL FOUNDATION 

IN SUPPORT OF RESPONDENT 

  
  

INTEREST OF AMICUS CURIAE 

The Criminal Justice Legal Foundation (CJLF)! is a 
nonprofit California corporation organized to participate in 
litigation relating to the criminal justice system as it affects the 
public interest. CJLF seeks to bring the due process 
protection of the accused into balance with the rights of the 
victim and of society to rapid, efficient, and reliable 
determination of guilt and swift execution of punishment. 

  

1. CJLF has written consent of the parties to file this brief. 

  

 



  

The present case involves the extended relitigation of the 
legality of a proceeding conducted many years ago, involving 
no substantial question of whether respondent is actually 
guilty. Such unnecessary relitigation is contrary to the rights of 
victims and society which CJLF was formed to advance. 

SUMMARY OF FACTS AND CASE 

On May 13, 1978, defendant/petitioner Warren McCleskey 
and three accomplices robbed a furniture store, tied up the 
employees, and forced the manager at gunpoint to turn over 
the store receipts. Officer Frank Schlatt responded to a silent 
alarm. One of the robbers shot and killed him with a Rossi .38 
caliber revolver. McClesky v. State, 263 S. E. 2d 146, 147-148 

(1980). 

This robbery was not McCleskey’s first. He had previously 
" committed at least two other robberies, in one of which he 

obtained a Rossi .38. Id., at 150. 

A part of the evidence identifying McCleskey as the 
triggerman was the testimony of a jailhouse informant, Offie 
Gene Evans. Ibid. McCleskey was convicted and sentenced to 
death, and the Georgia Supreme Court unanimously affirmed. 
Id., at 152. The United States Supreme Court denied 
certiorari. McClesky v. Georgia, 449 U. S. 891 (1980). State 
habeas corpus was denied, and the Supreme Court again 
denied certiorari. McCleskey v. Zant, 454 U. S. 1093 (1981). 

In December 1981, McCleskey filed a federal habeas 
petition asserting 18 grounds for relief. McCleskey v. Zant, 
580 F. Supp. 338 (1984). Over two years later, in an 
exhaustive opinion occupying 66 pages of the Federal 
Supplement, the district court granted relief on one claim and 
denied relief on all the others. Id., at 345. The Eleventh 

Circuit en banc reversed the grant and affirmed all the denials. 
McCleskey v. Kemp, 753 F. 2d 877 (1985). The Supreme 
Court granted certiorari limited to the racial discrimination 
claim and affirmed. McCleskey v. Kemp, 481 U. S. 279 (1987). 

   



After denial of a second state habeas petition, McCleskey 
filed the present federal petition. The petition included a 
claim, not made in the first federal petition, that Evans was a 
police informant and that his conversations with McCleskey in 
jail violated the rule in Massiah v. United States, 377 U.S. 1199 
(1964). The district court granted relief on this claim and 
denied relief on all others in an unpublished opinion. J. A. 63- 
100. The Eleventh Circuit reversed, finding an abuse of the 
writ. McCleskey v. Zant, 890 F.2d 342, 353 (1989). 

SUMMARY OF ARGUMENT 

The reasons for the common law’s tolerance of successive 
habeas petitions was closely linked to the strictly limited 
purpose of the common law writ. Today’s writ of collateral 
attack is a different procedure with a different purpose, and 
different considerations therefore govern the permissibility of 
successive writs. 

The considerations underlying the rule of Wainwright v. 
Sykes, 433 U. S. 72 (1977), regarding state procedural bars, 
apply with equal force to the petitioner’s failure to raise an 
issue on the first federal petition. The cause and prejudice test 
with the miscarriage of justice exception should be adopted. 
The Eleventh Circuit’s ruling in the present case effectively 
found no cause, no prejudice, and no miscarriage of justice and 
should be affirmed. 

ARGUMENT 

I. The common law writ has little relevance to the 
proceeding in this case. : 

Petitioner relies heavily on the common law rule that a 
prisoner seeking habeas relief could go from court to court 
without limit. Pet. Brief 26-30. This argument contains one 
glaring flaw. The common law writ was totally unavailable for 
the relief which petitioner seeks in this case: collateral attack 
on a felony conviction by a court of general jurisdiction. If the 

  

 



  

4 

common law controls this case, the petition should be 
summarily dismissed. If not, we need to inquire whether the 
rationale underlying the old rule has any application to the 
modern mutant writ. 

The common law writ was only available as a remedy for 
“illegal confinement.” See 3 W. Blackstone, Commentaries 
131 (1768). In most cases, the illegal confinement consisted of 
imprisonment by an executive officer without judicial action. 
Bator, Finality in Criminal Law and Federal Habeas Corpus for 
State Prisoners, 76 Harv. L. Rev. 441, 475 (1963).2 Executive 
detentions were the target of the famous Habeas Corpus Act, 
31 Car. II c. 2 (1679). Sce Blackstone, supra, at 135. That act 
expressly excepted persons committed “for Treason or Fellony 
plainely expressed in the Warrant of Committment” and 
“persons Convict or in Execution by legall Processe.” 31 Car. 
Ic. 2 § II. The statute’s mandate to discharge the prisoner did 
not apply if “the Party soe committed is detained upon a legall 
"Processe Order or Warrant out of some Court that hath 
Jurisdiction of Criminall Matters . . . for such Matters or 
Offences for the which by the Law the Prisoner is not 
Baileable.” Ibid. Pretrial felony detainees could invoke the 
act only as a remedy for a violation of the right to speedy trial. 
Id: $V. 

The only significant use of habeas corpus as a collateral 
attack arose in the famous and often miscited Bushell’s Case, 
124 Eng. Rep. 1006 (1670). In that case, jurors who had been 
held in contempt for bringing in the “wrong” verdict in a 
political prosecution were held to be entitled to habeas relief, 
even though the contempt order was issued by a court with 
jurisdiction of the person and the subject matter. The Bushell 
court went out of its way, however, to distinguish a contempt 
case from criminal cases. “A man committed for treason or 
felony, and bringing a habeas corpus, hath retorn’ed upon it, 
that he was committed for high treason or felony; and this is a 
sufficient retorn to remand him . . ..” Id., at 1009 (emphasis 

  

2. Cited below as “Bator.” 

   



added). The distinguishing factor was that the accused 
criminal had adequate remedies in the usual course of 
procedure, while the alleged contemnor did not. Id., at 1010. 

The distinction so carefully marked out by Bushell 
remained well established through the colonial period. 
Immediately after his oft-quoted praise of the “great and 
efficacious writ,” Blackstone notes that writs would often be 

denied as meritless on their face. If the writ “issued of mere 
course . . . a traitor or felon under sentence of death . . . might 
obtain a temporary enlargement by suing out a habeas corpus, 
though sure to be remanded as soon as brought up to the 
court.” 3 Blackstone, supra, at 132. Such an abuse would be 

intolerable, “[a]nd therefore Sir Edward Coke, when chief 
justice, did not scruple in 13 Jac. I. to deny a habeas corpus to 
one confined by the court of admiralty for piracy; there 
appearing, upon his own shewing, sufficient grounds to confine 
him.” Ibid. (emphasis added). 

One imprisoned as a punishment for crime by a court of 
clear jurisdiction could indeed petition every judge in the 
country, but he would receive the same immediate answer 
from every judge. The writ would not even be considered. It 
was simply not available for the purpose of reviewing such a 
judgment. 

The writ was brought to America and guaranteed in our 
Constitution. U. S. Const. art. I, § 9. The first Congress 

expressly granted the federal courts power to issue the writ. 
Judiciary Act § 14, 1 Stat. 81 (1789). The common law 
limitation remained, however. “An imprisonment under a 
judgment cannot be unlawful, unless that judgment be an 
absolute nullity; and it is not a nullity if the court has general 
jurisdiction of the subject, although it should be erroneous.” 
Ex parte Watkins, 3 Pet. (28 U. S.) 193, 203 (1830). 

“Abuse of the writ,” in the sense that the phrase is used 
today, was thus controlled by the limited nature of the writ. 
Questions of the legality of imprisonment before trial or 
without trial could arise only as long as that imprisonment 
lasted. The accused was entitled to a speedy trial, U. S. Const.    



  

6 

amend. VI, and a legal pre-trial confinement would normally 
not last long enough to be the subject of numerous petitions. 

Even though lengthy imprisonment replaced death as the 
penalty for the most felonies in the first half of the nineteenth 
century, see Furman v. Georgia, 408 U.S. 238, 338 (1972) (opn. 
of Marshall, J.), the problem of abuse still did not arise, 
because of the rule stated in Watkins. Courts with jurisdiction 
to try felonies were courts of general jurisdiction. “The 
judgment of the circuit court, in a criminal case, is, of itself, 
evidence of its own legality . ... The law trusts that court with 
the whole subject, and has not confided to this court the power 
of reviewing its decisions.” Watkins, supra, 3 Pet., at 207. 

The limitation recognized in Watkins remained unchanged 
and was generally understood to be in force in 1867. In that 
year, Congress extended the federal writ to state prisoners 
detained in violation of federal law, but gave no indication that 

it intended to change the Watkins rule. Bator, supra n. 2, 76 
Harv. L. Rev., at 474-77; Schneckloth v. Bustamonte, 412 U. S. 
218, 253 (1973) (Powell, J., concurring). 

The development of habeas corpus as a device to relitigate 
convictions of crime already decided by courts of competent 
jurisdiction was entirely a judicial invention after the 1867 act. 
It began with the idea that the imposition of both fine and 
imprisonment, under a statute authorizing only one or the 
other, was beyond the “jurisdiction” of the Court. Ex parte 
Lange, 18 Wall. (85 U. S.) 163, 176 (1874). It was further 
expanded with the holding that a federal court has no 
Jurisdiction to try an “infamous” crime without an indictment. 
Ex parte Wilson, 114 U. S. 417, 429 (1885). The outer limit of 
nineteenth century collateral attack was reached in Ex parte 
Siebold, 100 U. S. 371 (1880). On the theory that an 
unconstitutional statute is absolutely void, it was held that the 
constitutionality of the statute creating the offense could be 
reconsidered on habeas. Id., at 376-377. The rule was still in 
force, though, that errors of procedure could not be 
collaterally attacked, even if they rose to constitutional 
stature. In re Belt, 159 U. S. 95 (1895) (validity of jury waiver 
statute); Matter of Moran, 203 U. S. 96, 105 (1906) (allegedly 

   



forced self-incrimination not “jurisdictional”). 

Inquiry into procedural error was made available in the 
twentieth century to meet an overriding need. Black 
defendants were being wrongfully convicted due to infection 
of the system by racial prejudice, and direct review by this 
Court was insufficient to correct the injustices. See Friendly, 
Is Innocence Irrelevant? Collateral Attack on Criminal 
Judgments, 38 U. Chi. L. Rev. 142, 154-155 (1970); Bator, 
supra n. 2, 76 Harv. L. Rev., at 523. In Moore v. Dempsey, 261 

U. S. 86 (1923), for example, the petitioners had been 
convicted in a mob-dominated trial, and the state corrective 

process had made no serious inquiry into the due process 
issue. Id., at 87-90; cf. Frank v. Mangum, 237 U. S. 309, 333- 

336 (1915) (state court carefully considered question and 
decided trial was not mob-dominated). Finally, in Brown v. 
Allen, 344 U. S. 443 (1953), the Court addressed the merits of 
Black petitioners’ jury discrimination claims, with only one 
Justice contending that the state court’s resolution of the issue 
be accepted as final. Id., at 545 (Jackson, J., concurring). 
Unlimited review has been the norm from Brown until very 
recently. See Butler v. McKellar, 110 S. Ct. 1212, 1224-1225, 

108 L. Ed. 2d 347, 365-366 (1990) (Brennan, J., dissenting). 

The present habeas corpus proceeding is petitioner’s 
fourth. It is the fifth review of his judgment of conviction. 
The common law which he seeks to invoke would not have 
considered even his first petition, much less his fourth. 
Petitioner seeks to have his cake and eat it too, invoking the 
common law tradition of the Great Writ when it suits his 
purpose, while at the same time using the writ for a purpose 
strictly forbidden by that same tradition. 

  

3. Cited below as “Friendly.” 

4. His case has previously been reviewed on direct appeal, two state habeas 

petitions, and one federal petition. 

   



  

The common law therefore does not provide the answer. 
To determine what limits on successive applications are 
proper, it is necessary to reexamine the successive writ cases in 
the context of the massive change in the function of the writ 
which was occurring at the same time. 

II. The standards established under Wainwright v. Sykes 
and its progeny should govern abuse of the writ 

as well as procedural default. 

A. Successive Petitions Before 1963. 

The first substantial post-Reconstruction discussion on 
repetitive applications is in Ex parte Cuddy, 40 F. 62 (1889). 
Cuddy was held in contempt for attempting to improperly 
influence a juror. According to his second petition, the 
transaction took place a quarter mile from the courthouse. 

+ Id., at 63. Cuddy contended that his actions were not in the 
presence of the court, and therefore the court had no 
contempt jurisdiction. The relevant statute provided “that 
such power to punish contempts shall not be construed to 
extend to any case except the misbehavior of any person in 
their [the courts’] presence, or so near thereto as to obstruct 
the administration of justice . . . .” Ibid., quoting from Rev. 
Stat. § 725. 

The Supreme Court decided Cuddy’s first petition on the 
same day it decided a similar case, Ex parte Savin, 131 U. S. 
267 (1889). Savin had attempted to bribe a witness in the 
jury room and again in the hallway. Id., at 269. The Savin 
Court decided that “presence” was not limited to the personal 
presence of the judge but instead extended throughout the 
courthouse. Id., at 277. 

  

5. Both cases were argued April 25, 1889, and decided May 13, 1889. See 

131 U. S. 267, 280. 

 



9 

Cuddy’s first petition was limited to conclusory allegations 
of lack of jurisdiction supported only by the records of the 
contempt proceeding. Ex parte Cuddy, 131 U. S. 280, 281-283 
(1889). From the contempt order it may be fairly inferred that 
Cuddy’s actions did not occur in the personal presence of the 
judge, see id., at 281-282, but neither the petition nor the 
record indicate whether Cuddy approached the juror in the 
courthouse or elsewhere. Id., at 284. Looking only at their 
wording of the statute, there was no reason to expect that the 
specific location would be important. Cuddy knew the facts 
but had no reason to realize their legal significance until the 
issue arose in Savin. The Supreme Court affirmed denial of 
relief. Id., at 287. 

The second application was made to Justice Field as circuit 
justice. After discussing other possible grounds for decision, 
Justice Field based his denial squarely on the ground of the 
prior petition. 

“If [petitioner] can renew [his application] on another 
record, which may also be in some other particular 
defective, and so on indefinitely whenever he fails on 
appeal, it is plain that the writ may often become an 
instrument of oppression, instead of a means of 
relieving one from an unjust and illegal imprisonment. 
The writ of habeas corpus, it is true, is the writ of 
freedom, and is so highly esteemed that by the 
common law of England applications can be made for 
its issue by one illegally restrained of his liberty to 
every justice of the kingdom having the right to grant 
such writs. 

“In many instances great abuses have attended this 
privilege, which have led in some of the states to 
legislation on the subject. And, in the absence of such 
legislation, while the doctrine of res judicata does not 
apply, it is held that the officers before whom the 
second application is made may take into consideration 
of the fact that a previous application had been made 
to another officer and refused; and in some instances 
that fact may justify a refusal of the second.  



  

10 

“In what I have said I refer, of course, to cases where a 
second application is made upon the same facts 
presented, or which might have been presented, on the 
first. The question is entirely different when 
subsequent occurring events have changed the situation 
of the petitioner so as in fact to present a new case for 
consideration. In the present application there are no 
new facts which did not exist when the first was 
presented. And under the law of the United States an 
appeal is allowed to the supreme court where the writ 
is refused,—a provision which would seem to have been 
adopted to prevent a second application upon the same 
facts which were or might have been presented in the first 
instance. 1 am of the opinion that in such a case a 
second application should not be heard, except where 
the judgment of affirmance by the supreme court is 
rendered without prejudice to, or with leave to make a 
new application by, the petitioner.” Id., at 65-66 
(emphasis added). 

Cuddy thus holds that as a general rule the first petition 
must present all facts in support of the petition which can be 
presented. There must be some good reason why the facts 
were not presented the first time to avoid a dismissal of the 
second petition. Significantly, there is no hint of a 
requirement that the petitioner’s conduct has been inequitable 
in the sense that he is coming to the court with unclean hands. 
Cf. Sanders v. United States, 373 U. S. 1, 17-18 (1963). The 
lack of a good reason for not presenting the evidence on the 
first petition is sufficient to deny the writ. 

Nonexistence of the supporting facts at the time of the first 
petition is obviously a good enough reason. The failure of the 
petitioner to recognize their legal significance was not good 
enough in Cuddy, however, despite the fact that the legal 
significance arose upon a subsequent and rather strained 
construction of the statute by the Supreme Court. Cuddy 
appears to have been represented by counsel throughout the 
proceedings, see 131 U. S,, at 281, and that fact may have had 

   



11 

a bearing on the decision. Cf. Price v. Johnston, 334 U. S. 266, 
291 (1948) (pro se petitioner). 

In Salinger v. Loisel, 265 U. S. 224 (1924), the Supreme 
Court held that a prior habeas petition was not res judicata but 
that the common law rule of “independent judgment on each 
successive application” was no longer in effect. Id., at 230-231. 
The mandate of Congress “to dispose of the party as law and 
justice may require” meant that the availability of appellate 
review and denial of prior habeas relief could “be considered, 
and even given controlling weight.” Id., at 231. Salinger 
quoted Cuddy, supra, with approval. Id., at 231-232. Thus, the 
denial of a prior petition occupies some vaguely defined 
middle ground. It is less than res judicata, but a prior denial 
carries much more than the zero weight which it carried at 
common law. 

Wong Doo v. United States, 265 U. S. 239 (1924) was 
decided the same day as Salinger. Wong Doo’s first petition 
presented two grounds, but he put on no proof of the second. 
He then relied on the second ground for his second petition. 
Id., at 239-240. The Supreme Court held that the lower court 
erred in invoking the rigid bar of res judicata but that the case 
was so clearly an abuse of the writ that no remand was 
necessary. Id., at 241. The Court believed that the evidence 
“was accessible all the time,” ibid., and Wong Doo was 
apparently represented by counsel. The Court notes that 
under these circumstances good faith required presentation of 
the proof on the first petition and that reserving the proof for 
a later petition was in bad faith and abusive. It does not 
follow, however, that this kind of bad faith is the only form of 
abuse of the writ or the only circumstance in which denial of 
the prior petition is sufficient to deny the present one. The 
much broader language of Cuddy and Salinger is in no way 

 



  

12 

rejected in Wong Doo.® 

The next major statement on abuse of the writ came in 
Price v. Johnston, 334 U. S. 266 (1948). The main issue in 
Price was which party had the burden of pleading abuse or 
nonabuse of the writ in a successive petition. Four Justices 
thought that the petitioner should state the reasons in his 
petition. Id., at 294 (Frankfurter, J., dissenting); id., at 297 

(Jackson, J., dissenting). The majority placed the burden of 
pleading abuse on the government, with reasoning based 
squarely on the pro se status of petitioners “often unlearned in 
the law.” Id., at 291-292. 

On the merits of the successive petition issue, the Court 
distinguished Salinger and Wong Doo as cases where the prior 
petition had raised the same issue. Id., at 289-290. The 
majority contradicts itself, however, on the effect of a prior 
petition raising a different issue. At one point, the majority 
says “the three prior refusals to discharge petitioner can have 
no bearing or weight on the disposition to be made of the new 
matter raised in the fourth petition.” Id., at 289 (emphasis 
added). 

  

6. Because Wong Doo was a deportation case rather than an imprisonment 

case, it contains a comment which is particularly relevant to capital cases. 

The Court notes that abusive use of the writ could “postpone the 

execution of the order indefinitely” and that it “already has been 

postponed almost four years.” Ibid.; cf. Barefoot v. Estelle, 463 U.S. 880, 

888 (1983). 

7. Two cases decided in the interim are cited by petitioner: United States ex 

rel. McCann v. Adams, 320 U. S. 220 (1942) and Waley v. Johnston, 316 

U.S. 101 (1942). Both of these are brief per curiam opinions in cases 

where the abuse of the writ issue was conceded by the government in this 

Court. They therefore lack the adversarial process that is essential to the 

making of sound precedent. See Cross v. Burke, 146 U. S. 82, 86-87 

(1892). 

—-
 

   



S—
-—

— 

13 

This is an extreme statement. If the prior refusals really 
had no bearing, there would be no abuse issue and the case 
would have been remanded for an immediate hearing on the 
merits. Instead, the Court explicitly directed that the abuse of 
the writ issue be considered on remand. Id., at 294. Another 

passage of the opinion is much more consistent with the actual 
disposition of the case: 

“If called upon, the petitioner may be able to present 
adequate reasons for not making the allegation earlier, 
reasons which make it fair and just for the trial court to 
overlook the delay. The primary purpose of a habeas 
corpus proceeding is to make certain that a man is not 
unjustly imprisoned. And if for some justifiable reason 
he was previously unable to assert his rights or un- 
aware of the significance of relevant facts, it is neither 
necessary nor reasonable to deny all opportunity of 
obtaining judicial relief.” Id., at 291 (emphasis 
added). 

This holding is entirely different from the earlier statement 
and is entirely in keeping with the spirit of Cuddy, Salinger, 
and Wong Doo. The denial of a prior petition is not without 
effect. Its effect is to place upon the petitioner, once the issue 
has been raised, the burden of showing reasons for not making 
the allegation earlier. The petitioner’s showing must clear two 
hurdles. First, the reasons shown must be adequate, and 
second, the circumstances must be such that it is fair and just 
that the second or subsequent petition be considered. In 
other words, he must show cause and prejudice. Cf. 
Wainwright v. Sykes, 433 U. S. 72, 87 (1977). 

  

8. This discussion is in the portion of the opinion dealing with facts known 

to the petitioner. The Court does not discuss in any depth the 

circumstances under which newly discovered facts will justify a second 

petition.  



  

14 

B. The Modern Law of Procedural Default. 

1. Fay v. Noia and Sanders v. United States. 

The modern law of procedural default on habeas begins 
with a pair of cases decided several weeks apart: Fay v. Noia, 
372 U. S. 391 (1963) and Sanders v. United States, 373 U.S. 1 
(1963). Noia involved a claim of involuntary confession which 
was barred on state collateral review due to Noia’s failure to 
appeal. After an extensive review of the history of habeas 
corpus, the Court concluded that “the jurisdiction of federal 
courts on habeas corpus is not affected by procedural 
defaults . . . during the state court proceedings,” with the 
caveat that “the federal habeas judge may in his discretion 
deny relief to an applicant who has deliberately by-passed the 
orderly procedure of the state courts.” Id., at 438. 

Sanders involved a federal prisoner who had filed a second 
motion under 28 U. S. C. § 2255. The first petition had stated 

bare conclusions unsupported by facts and was dismissed. The 
case was arguably different from Noia in that it involved a 
federal prisoner, rather than state, and the default in question 
was failure to raise the point on the first collateral attack, 
rather than failure to object at trial or on direct appeal. See 
Sanders, 373 U. S., at 5-6. 

The Sanders Court identified two different “abuse of the 
writ” problems. One situation, the one involved in the case, 

involves an attempt to relitigate an issue contained in the 
previous petition, though perhaps not resolved on the merits. 
373 U. S., at 15-17. The second situation involves the new 

claim, and the Sanders Court’s ruminations on this point are 
pure dicta. The Court decided not to “deal at length” with this 
issue and simply stated that Fay v. Noia and a companion case, 
Townsend v. Sain, 372 U. S. 293 (1963), “deal at length with 
the circumstances under which a prisoner may be foreclosed 
from federal collateral relief. The principles developed in 
those decisions govern equally here.” Sanders, 373 U. S., at 
18. 

   



13 

Thus the Sanders Court itself disclaimed any difference 
between presenting a new ground not raised in a previous 
federal petition and presenting a ground procedurally 
defaulted in the state system. Both situations balance the 
same opposing interests, finality versus opportunity to have 
the claim heard, and both are to be governed by the same 
standard. 

Subsequent development in the law of state procedural 
defaults has caused the Sanders dictum to become ambiguous. 
Sanders can be read to say that “deliberate bypass” is the 
standard, or it can be read to say that the standard is the same 
as for state procedural defaults. The two are no longer the 
same. 

2. The Cause and Prejudice Test. 

Ten years after Noia and Sanders, the “deliberate bypass” 
standard set in those cases began to decline. In Davis v. United 
States, 411 U. S. 233 (1973), a § 2255 petitioner challenged as 
racially discriminatory the composition of the grand jury which 
had indicted him. Davis had not challenged the grand jury by 
pretrial motion, as required by Federal Rule of Criminal 
Procedure 12(b)(2). The Court held that the rule was an 
express waiver provision enacted by Congress and therefore 
could not be defeated by permitting the waived claim to be 
raised on collateral attack. 411 U. S., at 242. 

Davis emphasized the importance of raising the objection 
before trial in order to allow the trial judge to make the 
correction, if necessary. If the defendant makes a timely 
challenge, “inquiry into an alleged defect may be concluded 
and, if necessary, cured before the court, the witnesses, and 

the parties have gone to the burden and expense of a trial.” 
411 U. S,, at 241. 

In Francis v. Henderson, 425 U. S. 536 (1976), the Court 
was presented with a state prisoner seeking habeas in 
circumstances otherwise identical to Davis. The practical 
interests involved were the same. Prompt raising of the 
objection would have allowed prompt correction. The  



  

  

16 

governmental interests, though, were quite different. The 
state procedural rule, unlike the federal rules, did not emanate 

from the same authority that had enacted the habeas statutes. 
On the other hand, a federal writ of habeas corpus for a state 
prisoner involves considerations of federal/state comity not 
involved in a § 2255 proceeding. Notwithstanding these 
differences, Francis adopted the Davis cause and prejudice 
test. Id., at 542. Although the Francis majority did not 
explicitly overrule Fay v. Noia, despite a challenge from the 
dissent to state its position explicitly, id., at 546-47 (Brennan, 
J., dissenting), the result is clearly inconsistent with Noia’s 
“deliberate bypass” standard. 

The cause and prejudice test was extended beyond grand 
jury challenges in Wainwright v. Sykes, 433 U. S. 72 (1977). 
Petitioner had not objected at trial to the admission of a 
statement taken without Miranda warnings and had not raised 
the issue on appeal. Florida rules required the suppression 
motion to be made before trial in most cases. Id., at 76, n. 5S. 

Sykes followed Francis and applied the cause and prejudice 
test to failure to object to a confession at trial. Unlike Francis, 
the Sykes Court made its rejection of “the sweeping language 
of Fay v. Noia” explicit. Id., at 87-88. 

The Sykes Court repeated the same practical considerations 
stated in Francis and Davis. A contemporaneous objection at 
trial is needed to identify, determine, and if necessary, correct 

the problem and then proceed with the trial. Id., at 88-89. 
The Sykes Court was also concerned with the possibility of 
“sandbagging.” An objection might be withheld for the 
purpose of getting two bites at the apple. A defendant might 
be acquitted, or receive a light sentence, at the first trial. If 
not, and if reversible error is introduced and the conviction 

vacated years later, defendant will get a second trial on stale 
evidence. Id., at 89. A contemporaneous objection rule thus 
requires the defense to concentrate its energies on insuring 
that the first trial is free of error, not the opposite. Id., at 90. 

In addition to the above considerations, the Sykes Court 
discussed the idea that a procedural default is an independent 
state ground for the decision. A state may constitutionally 

 



17 

require that an objection be raised at a certain point or waived, 
the argument goes, and thus the affirmance of the conviction 
rests on the adequate state ground of waiver, not the federal 
ground of the lack of merit of the objection itself. Id., at 81- 
82. If independent state grounds were really the basis of 
Sykes, though, the cause and prejudice test would not apply. 

The lack of a federal question is jurisdictional, not 
discretionary. See Herb v. Pitcairn, 324 U. S. 117, 125-126 

(1945). If the state ground were, by itself, sufficient to support 
the judgment, federal courts would have no power to interfere, 
cause or no cause, prejudice or no prejudice. See Harris v. 
Reed, 109 S. Ct. 1038, 1052-1053, 103 L. Ed. 2d 308, 328-329 
(1989) (Kennedy, J., dissenting).” Because Francis and Sykes 
lay down a rule governing the judicious use of power rather 
than the limitations of power, see Francis, 425 U. S., at 538-39, 

the ground cannot be a jurisdictional one. 

The cause and prejudice test was extended to a case 
involving neither federalism nor Rule 12(b) in United States v. 
Frady, 456 U. S. 152 (1982). Frady had been convicted of 
murder in the United States District Court for the District of 
Columbia. Frady brought a § 2255 motion, claiming for the 
first time that the jury instructions had incorrectly defined 
“malice,” id., at 157-58, n. 6, citing two cases decided four and 

seven years, respectively, after his trial, ibid. 

The Court of Appeals held that the error had to be 
considered on a § 2255 motion if it met the “plain error” 

standard of Federal Rule of Criminal Procedure 52(b), the 
standard applied on appeal for most errors not objected to at 
trial. This Court reversed. 

The Davis holding that rules on habeas could be no more 
lenient than those on appeal did not imply that they could be 

  

9. The Harris majority relies on the independent state grounds “lineage” of 

Sykes for its “plain statement” rule, id., at 1042, L. Ed. 2d, at 315, but in 

the end the majority returns to an interest and burden analysis. Id., at 

1044, L. Ed. 2d, at 318. 

 



  

18 

no more stringent. 456 U. S., at 164. While the Davis Court 
had decided that the rules for preserving an objection for 
appeal established a floor for considering the issue on habeas, 
the Frady Court rejected the contention that the appellate 
rules could establish a ceiling. Respect for finality of 
judgments permits the judicial creation of a standard for 
habeas higher than the one created for appeal by the rules. 
The cause and prejudice standard of Davis, Francis, and Sykes 
was held to be the proper balance between society’s interest in 
finality and the petitioner’s interest in belatedly asserting his 
claim. 456 U. S., at 166-67. 

3. Defaults After Trial. 

All of the cases from Davis to Frady had involved failure to 
object at trial. The primary open question remaining was 
whether the cause and prejudice standard also applied in the 
event of failure to raise an issue on appeal. This issue was 
addressed in Reed v. Ross, 468 U. S. 1 (1984). Ross had failed 
to object to a burden-shifting jury instruction at trial, but the 
state had no contemporaneous objection rule at the time. Id., 
at 7, n. 4. He also failed to raise the issue on appeal. The 
Court saw no reason to apply a different standard on that 
basis. 

“This type of rule [requiring legal issues to be raised on 
appeal or waived] promotes not only the accuracy and 
efficiency of judicial decisions, but also the finality of 
those decisions, by forcing the defendant to litigate all 
of his claims together, as quickly after trial as the 
docket will allow, and while the attention of the 
appellate court is focused on his case. To the extent 
that federal courts exercise their § 2254 power to 
review constitutional claims that were not properly 
raised before the state court, these legitimate state 
interests may be frustrated: evidence may no longer be 
available to evaluate the defendant’s constitutional 
claim if it is brought to federal court long after his trial: 
and it may be too late to retry the defendant effectively 
if he prevails in his collateral challenge. Id., at 10-11. 

   



2), 

If any doubt remained that the same test applied for both 
trial and appellate defaults, it was eliminated in Murray v. 
Carrier, 477 U. S. 478, 490-92 (1986). 

4. Successive Federal Petitions. 

Looking at the cause and prejudice cases as a group, we see 
that only one common thread runs through all of them. In 
each case, the interest of the petitioner in having his claim 
heard must be balanced against the interest of the state in 
having the issue raised at the earliest possible stage of the 
proceedings. While explicit federal and state rules are 
involved in most of the cases, only one case, Davis, actually 

involves a rule with a “cause” exception and none involve rules 
with an explicit “prejudice” requirement to invoke the 
exception. Frady does not involve any explicit procedural rule 
at all. The cause and prejudice standard is not based on a 
respect for procedural rules as such but on a recognition of the 
needs underlying these rules, a respect for the finality of 
judgments, and a belief that there must, at some point, be an 
end to litigation. 

The interests to be balanced were neatly summed up in 
Reed v. Ross. “On the one hand, there is Congress’ expressed 
interest in providing a federal forum for the vindication of 
constitutional rights of state prisoners . ... On the other hand, 
there is the State’s interest in the integrity of its rules and 
proceedings and the finality of its judgments.” Reed, 468 U. S., 
at 10. To determine whether the balance results in the same 
cause and prejudice test in the present case, we must examine 
both sides of this equation. 

In one sense, the state’s interest in enforcing procedural 
defaults grows weaker as the time after trial increases. There 
is a great deal of difference between avoiding retrial 
altogether, as objection at trial may do, and merely hastening 
the retrial, as an objection on appeal or on the first habeas 
petition may do. In another sense, though, the interest in 
finality increases with time. Society, the victim or next-of-kin, 
and arguably even the defendant need to have a final answer 
at some point. See Mackey v. United States, 401 U. S. 667, 690-  



  

20 

691 (1971) (Harlan, J., dissenting). With each additional 
procedure that is permitted, that final day when all can say “it’s 
over” is further postponed. We must, of course, accept direct 
appeal as a necessary delay and expense to guard against 
conviction of the innocent. Then there is state collateral 
attack. Then there is federal habeas. The frustration builds as 

attack after attack raises anew the possibility that a guilty 
person may escape justice and as the probability that the 
defendant is in fact innocent shrinks far below reasonable 
doubt into the infinitesimal. 

Meanwhile the evidence for retrial grows more and more 
stale. Memories fade; witnesses die or disappear; physical 
evidence deteriorates or is lost. The ability to conduct a trial 
which is fair to society and to the victim, as well as to the 
defendant, decays with time. New trials are ordered on the 
theory, or at least the hope, that the second trial will 

determine the truth more reliably than the first. As time 
marches on that hope becomes a pipe dream. 

The state’s interest in having claims which were omitted 
from the first petition barred from consideration on 
subsequent petitions may be less than its interest in a 
contemporaneous objection rule in some respects, but it is 
greater in others. If all claims must be made in the first 
petition, absent cause and prejudice, most cases will have a 
definable end — the final disposition of the first federal 
petition. That is an important interest indeed. It is especially 
important in capital cases, where the execution of the sentence 
cannot begin until the end of proceedings is reached. See 
Barefoot v. Estelle, 463 U. S. 880, 888 (1983). 

On the other side of the coin is the petitioner’s interest in a 
federal forum for his federal claim. This interest is far less 
compelling on successive petitions. Even if we assume the 

  

10. This is true even in capital cases. The long wait on death row can be a 

form of psychological torture. See People v. Anderson, 6 Cal.3d 628, 

649, n. 38, 493 P.2d 880 (1972). 

 



2] 

deep suspicion of state courts underlying this interest to be 
valid,!! it is one thing to say that the petitioner must be 
allowed entrance to the federal courthouse and quite another 
to insist that he has a right to take up residence there. The 
cause and prejudice test merely requires the petitioner to show 
that he has a very good reason for not raising his claim earlier, 
see, e.g., Amadeo v. Zant, 486 U. S. 214 (1988) (evidence of 
intentional racism in jury selection concealed by the 
prosecution), and that the claim involves an error which really 
made a difference. Finally, there is the safety valve recognized 
in Murray v. Carrier, supra, 477 U. S., at 496, for the 
“extraordinary case, where a constitutional violation has 
probably resulted in the conviction of one who is actually 
innocent.” 

The balance between finality and the federal forum thus 
tips at least as far in the government’s favor in this case as it 
did in Frady, Reed, or Carrier, perhaps further. The cause and 
prejudice standard is the appropriate one to apply. 

C. Statutory Language and History. 

In the order granting certiorari in this case, the Court 
requested briefing on this question: “Must the State 
demonstrate that a claim was deliberately abandoned in an 
earlier petition for a writ of habeas corpus in order to establish 
that inclusion of that claim in a subsequent habeas petition 
constitutes an abuse of the writ?” J. A. 136. 

The negative answer is plain on the face of the statute. The 
applicant must satisfy the court that he “has not on the earlier 
application deliberately withheld the newly asserted ground or 
otherwise abused the writ.” 28 U. S. C. § 2244(b) (emphasis 
added). If deliberate withholding or abandonment were the 
only kind of abuse of the writ, the “otherwise” clause would 
not be there. See Bowsher v. Merck & Co., Inc., 460 U. S. 824, 

  

11. But see Sawyer v. Smith, 110 S. Ct. 2822,2831, 111 L. Ed. 2d 193, 210 

(1990).  



  

22 

833 (1983) (give effect to every word if possible). The petition 
need not be entertained if it is an abuse of the writ. 
Deliberate withholding is one kind of abuse, but there are 
others. Congress has not specified what the others are, but it 
has unambiguously stated that other forms of abuse exist. 

Justice Scalia has explained the dangers of resorting to 
legislative history. See Blanchard v. Bergeron, 109 S.Ct. 939, 
946-947, 103 L.Ed.2d 67, 78-79 (1989) (concurring in part). 
Statutes, not committee reports, go through the involved 
process of approval by both houses and the President. 
Nevertheless, that view has not yet garnered a majority, and so 
we must plunge into the murky waters of the legislative 
history. We find little light there, but what little there is 
reveals a seascape very different from the one painted by 
petitioner. 

The original section 2244 was intended to make “no change 
in existing practice” according to a report written before Price 
v. Johnston, 334 U. S. 266 (1948). H. R. Rep. 308, 80th Cong, 

1st Sess. A 178-179 (1947). When subdivision (b) was added in 
1966, on the other hand, it was intended to make a substantial 

change in the law. “The purpose of these new subsections [(b) 
and (c)] is to add to section 2244 . . . provisions for a qualified 
application of res judicata.” H. R. Rep. No. 1892, 89th Cong., 
2d Sess., 8 (1966); “The bill seeks to alleviate the unnecessary 
burden [on federal courts] by introducing a greater degree of 
finality of judgments in habeas corpus proceedings.” S. Rep. 
No. 1797, 89th Cong., 2d Sess. 2 (1966) (“1966 Senate 
Report”). 

If nothing else, these statements demonstrate an intent to 
reject the extreme statements in the case law that finality 
considerations have no weight in habeas corpus. See Sanders 
v. United States, 373 U. S. 1, 8 (1963); Price v. Johnston, supra, 
334 U. S., at 289. Congress instead is in accord with Judge 
Friendly’s later retort: The “ ‘policy against incarcerating or 
executing an innocent man’. . . shows only that ‘conventional 
notions of finality’ should not have as much place in criminal 
as in civil litigation, not that they should have none.” Friendly, 
supra n. 3, 38 U. Chi. L. Rev, at 150 (emphasis in original). 

   



23 

The contention that Congress was simply codifying existing 
case law is untenable. The reports taken as a whole indicate 
an intent, indeed a determination, to make an affirmative 

change in the law in favor of finality. 

Regrettably, the reports shed very little light on the precise 
contours of the intended change. Petitions “predicated on 
grounds obviously well known to [petitioners] when they filed 
the preceding application” are listed as one example of an 
abusive writ, 1966 Senate Report, at 2, but there is no 

exhaustive list. The report explicitly mentions “newly 
discovered evidence” but once again says that a writ based on 
such evidence need not be entertained if the prisoner 
“otherwise abused the writ” with no explanation of what that 
means. Ibid. 

The argument has been made that Rule 9(b) of the Rules 
Governing Section 2254 Cases in the United States District 
Courts has frozen the Sanders “deliberate bypass” test into 
place and precluded further development of the case law. 
Such a drastic change in role of the Court in defining the 
scope of habeas corpus would probably be within the power of 
Congress, but it should not be inferred without compelling 
evidence. 

Rule 9(b) as originally promulgated by this Court provided 
for dismissal of successive petitions alleging new grounds if the 
failure to assert them earlier “is not excusable.” See 28 U. S. 
C. A. § 2254, Rule 9, at 1136 (1977). This language was 
attacked on two separate grounds. It is important to 
understand the difference in the two criticisms in order to 
evaluate the final product. 

The National Association of Criminal Defense Lawyers, 
feared that the proposed language would codify the approach 
to procedural default in Justice Powell’s concurrence in Estelle 
v. Williams, 425 U. S. 501, 513-515 (1976). Habeas Corpus: 

Hearings on H. R. 15319 Before the Subcomm. on Criminal 
Justice of the House Comm. on the Judiciary, 94th Cong., 2d  



  

24 

Sess. 15 (1976).12 The NACDL endorsed instead language 
proposed by Professor Robert Clinton. He proposed that 
Congress amend the rule to allow dismissal of the second 
petition if 

“the judge finds that the failure of the petitioner is the 
result of the international relinquishment of a right or 
privilege known to the petitioner either prior to the 
time when the right or privilege should have been 
asserted at trial or prior to the filing of the previous 
petitions . . .. ” Id., at 25 (underlining in original). 

  

    

  

  

In other words, Professor Clinton proposed to Congress that it 

codify Sanders in its most liberal interpretation: applying the 

waiver standard of Johnson v. Zerbst, 304 U. S. 458, 464 (1938) 

to procedural defaults. 1976 Hearings, supra n. 12, at 24. 

A different objection was voiced by those who believed that 
the question of the preclusive effect of prior petitions had no 
place in the rules at all. The ACLU statement, while agreeing 
with the NACDL, also indicated that the proposed change was 
in “the domain of substantive rights” and should “be adopted 
only by traditional legislative processes or enunciated by the 
Supreme Court in connection with an actual case or 
controversy.” Id., at 82 (second emphasis added). 

Congress was thus presented with three alternatives. First, 
it could approve (or passively allow) a rule which some 
claimed would narrow the availability of habeas corpus. 
Second, it could freeze the case law at its high-water mark of 
Fay v. Noia and Sanders. Third, it could keep the question out 
of the rules and leave it to further statutory and case law 
development. 

  

12. Cited below as “1976 Hearings.” 

13. He also proposed that Congress abrogate Francis v. Henderson, supra, 

and codify Fay v. Noia, supra. Ibid. 

   



25 

The language actually adopted by Congress reads “the 
failure of the petitioner to assert those grounds in a prior 
petition constituted an abuse of the writ.” Rules Governing 
Section 2254 Cases in the United States District Courts, Rule 

9(b). Comparing this language with that of the statute 
(“deliberately withheld the newly asserted ground or otherwise 
abused the writ,” 28 U. S. C. § 2244 (b)) leaves little doubt as 
to which path Congress chose. 

Both the advisory committee language and the Clinton 
proposal were rejected. The language is neither a new, 
restrictive standard nor a ringing reaffirmation of the 1963 
case law. Instead, it is analytically indistinguishable from the 
statutory language. The compromise result of the 1976 battle 
was a rule which changed nothing. Congress has enacted only 
a repetition of the statute’s spacious and elastic phrase “abuse 
of the writ.” Definition of the phrase was a judicial function 
before enactment of the rules, and it remains a judicial 
function afterward. 

The final committee report on the rule is consistent with 
this interpretation. The report states that the “ ‘abuse of the 
writ’ standard brings Rule 9(b) into conformity with existing 
law.” H. R. Rep. No. 94-1471, reprinted in 1976 U. S. Code 
Cong. & Admin. News 2478, 2482. The authorities cited for 
“existing law” are section 2244(b) and a very limited quote 
from Sanders stating the “abuse of the writ” rule without 
elaboration. Ibid. 

The distinction between freezing case law in place and 
allowing it to continue unimpeded is an important one. Both 
the language of the rule and the legislative history indicate 
that Congress intended not to interfere with judicial definition 
of “abuse of the writ” when it adopted Rule 9(b). 

D. Conclusion. 

There is nothing left of Fay v. Noia today. Its rendition of 
history has been branded as “revisionist.” Schneckloth v. 
Bustamonte, 412 U. S. 218, 252 (1973) (Powell, J., concurring); 

see generally Stone v. Powell, 428 U. S. 465, 474-478 (1976).  



  
  

  

26 

Its “sweeping language” has been explicitly rejected. 
Wainwright v. Sykes, 433 U. S. 72, 87-88 (1977). Its “deliberate 
bypass” rule has been erased from the law of state procedural 
defaults and completely replaced by the cause and prejudice 
rule. The case is a dead letter.!* | 

The Sanders dictum has thus hitched the law of abuse of 
the writ to a broken post. Congress has not seen fit to give any 
legislative definition whatever to the term. It is therefore 
incumbent upon the judiciary to define the term in a manner 
which appropriately balances the competing interests. 

The answer, amicus submits, is to return to the principle 
announced in Ex parte Cuddy, 40 F. 62, 66 (1889) that the 
denial of a prior writ is generally a sufficient reason to deny a 
second or subsequent writ, absent facts which did not exist at 
the time of the first petition. This rule, however, needs to be 

tempered with the qualifications expressed in Price v. 
Johnston, 334 U. S. 266, 291 (1948), that there may be 

“adequate reasons” for not making an allegation earlier which 
make it “fair and just” to consider the subsequent petition, 
bearing in mind at all times that the purpose of habeas corpus 
is to prevent an actual miscarriage of justice, ibid. 

The rules developed for procedural defaults meet all of 
these criteria. The cause and prejudice test with the 
miscarriage of justice exception accommodates all of the 
compelling arguments for considering second and subsequent 
petitions. Furthermore, by establishing a single standard for 
all defaulted claims it would bring a sorely needed consistency 
to a complex area of the law. The test “may lack a perfect 
historical pedigree,” but it “provides a sound and workable 
means of channeling the discretion of federal courts.” Murray 
v. Carrier, 477 U.S. 478, 496-497 (1986). 

  

14. Courts still cite Fay v. Noia as if it were still good authority, see, e.g., J. A. 

84, apparently because this Court has never used the word “overruled.” 

An explicit acknowledgement that Fay v. Noia has, in fact, been 

overruled would help iron out inconsistencies in the case law. 

 



27 

III. Petitioner did not have adequate cause to omit 
his Henry claim from the first petition. 

A detailed review of the facts of the case is beyond the 
scope of an amicus brief, and we will therefore not attempt 
one here. We will, however, venture a few observations on 

the application of the cause and prejudice test to the facts of 
this case. 

Petitioner vigorously asserts that Evans’ testimony was 
critical to the prosecution’s case. Pet. Brief 55. This assertion 
leaves one wondering why Evans was not the focus of 
petitioner’s post-conviction strategy from the very beginning, if 
his testimony were really that critical. Why was so much 
energy devoted instead to the abstract claim presented to this 
Court on the first round in McCleskey v. Kemp, 481 U. S. 279 
(1987)? Why did defense counsel seek police records on that 
claim but not on Evans? See J. A. 61. 

Where the testimony of a jailhouse informant is central to 
the case, a claim under United States v. Henry, 447 U. S. 264 
(1980) is the obvious first place to look. When investigating a 
Henry claim, furthermore, the circumstances of how the 

informant came to be in the same cell or an adjoining cell 
would be among the first questions to be asked. There were 
written logs of cell assignments available at the time of the first 
petition, J. A. 129, n. 13, but it does not appear that any effort 
was made to obtain them. Even absent such records, the 

officer in charge of cell assignments would be the first person 
to ask. That person, apparently, was Officer Worthy, the 
officer now claimed to be a newly discovered witness. See 
J. A122, 

It would appear that competent defense counsel placed the 
Henry claim on the “back burner” relative to other claims. 
That fact by itself is a good indication that the testimony in 
question was not of overwhelming importance. Cf. Rose v. 
Lundy, 455 U.S. 509, 543, n. 8 (1982) (Stevens, J., dissenting). 

Cause for a procedural default generally requires “some 
objective factor external to the defense.” Murray v. Carrier,  



  

28 

477 U. S. 478, 488 (1986). Petitioner asserts a “cover-up,” Pet. 
Brief 12, claiming that the state suppressed a written 
statement by Offie Evans. Pet. Brief 50. State concealment of 
evidence is indeed “cause,” Amadeo v. Zant, 486 U. S. 214 

(1988), and if the present case were actually equivalent to 
Amadeo, that argument would be valid. This case, however, is 

quite different. 

The State of Georgia commendably permitted defense 
counsel to take the deposition of the assistant district attorney 
in the state habeas proceeding. During that deposition, the 
prosecutor said: “Okay. When you referred to a statement, 
Offie Evans gave his statement but it was not introduced at the 
trial. It was part of that matter that was made in camera 
inspection by the judge prior to trial.” J. A. 25. 

For a statement to be inspected in camera it would have to 
be in writing or otherwise reduced to tangible form, such as a 
tape recording. The supposedly suppressed fact was thus 
stated by the state’s attorney directly to the petitioner’s 
attorney four months before the filing of the first federal 
petition.’> Cover-ups should be made of sterner stuff. Cf. W. 
Shakespeare, Julius Caesar, act 111, scene ii (1598). Defense 

counsel’s assertion that he did not grasp the importance of 
what was said, J. A. 38, is not sufficient to convert an explicit 
disclosure into a cover-up. Counsel’s failure to detect a claim 
is not “cause.” See Murray v. Carrier, 477 U. S. 478, 492 

(1986). 

The absence of Evans’ statement from the prosecutor’s file 
does not constitute concealment. The defense had actual 
notice that the file was not complete. In court, under oath, 

and in present defense counsel’s presence, former defense 
counsel testified that the prosecutor had told him that two 
items were missing, one of which was a statement. J. A. 24. 
The state’s representation that it had provided a complete 

  

15. The deposition is dated February 16, 1981. J. A. 25. The first federal 

peititon was filed June 17, 1981. J. A. 64 

   



29 

copy of the prosecutor’s file is not a representation that the 
file contains every relevant document. Petitioner’s accusation 
that the state’s “representation was false,” Pet. Brief 10, n. 9, is 

unwarranted. 

Petitioners showing falls far short of the kind of cover-up 
which constituted cause for default in Amadeo. At most, 

petitioner has shown a series of ambiguous statements 
reflecting confusion about what counsel was asking for. See 
Pet. Brief 8, n. 6. That confusion was due in large part to 
counsel’s insistence that he was asking for statements of the 
defendant. See, e.g.,J. A. 17. A simple, straightforward 
request for statements of the witness would have clarified the 
situation, but none was made. Petitioner did not have cause to 

omit the claim from his first petition. 

There has also been no fundamental miscarriage of justice 
in this case. Actual innocence is the touchstone of this narrow 
exception to the cause requirement. Harris v. Reed, 109 S. Ct. 
1038, 1048, 103 L. Ed. 2d 308, 323 (1989) (O’Connor, J., 
concurring). To determine whether a genuine claim of actual 
innocence exists, all evidence should be considered, whether 

legally obtained or not. See Friendly, supra n. 3, at 160. The 
Court of Appeals found the evidence of guilt clear even 
without Evans’ testimony. J. A. 135. With the Evans 
testimony and statement in addition, it would seem to be 
overwhelming. 

The facts presented by petitioner in this case are facts 
which “might have been presented in the first instance.” Ex 

- parte Cuddy, 40 F. 62, 66 (1889). “[I]n such a case a second 
application should not be heard ....” Ibid. “The primary 
purpose of a habeas corpus proceeding,” “to make certain that 
a man is not unjustly imprisoned,” Price v. Johnston, 334 U.S. 
266, 291 (1948), will not be impaired in the least by denial of 
this murderer’s petition.  



30 

  

CONCLUSION 

The decision of the Court of Appeals should be affirmed. 

Dated: September, 1990 

Respectfully submitted, 

KENT S. SCHEIDEGGER 

Attorney for Amicus Curiae 
Criminal Justice Legal Foundation