The opinion
KENNARD, J., Concurring.
I concur fully in the majority opinion. I write separately to comment on one aspect of the procedural bar of successiveness. As the majority opinion explains, the successiveness bar is subject to exceptions, one of which applies when a petition alleges facts that, if proved, would establish that a fundamental miscarriage of justice occurred. (Maj. opn., ante, at p. 956.) In my view, this court has adopted an overly restrictive definition of that exception, under which the petitioner must show actual innocence or a constitutional error without which “no reasonable judge or jury” would have convicted the petitioner or returned a death verdict. (In re Clark (1993) 5 Cal.4th 750, 797 [ 21 Cal.Rptr.2d 509 , 855 P.2d 729 ].) For the reasons I have previously stated in a separate opinion, “I would adopt instead the test used by the Pennsylvania courts” under which a claim that could have been presented in an earlier petition will be considered on its merits “if the petitioner shows either factual innocence or procedural unfairness of such gravity that ‘no civilized society’ can tolerate it.” (In re Clark, supra, at p. 803 (conc. & dis. opn. of Kennard, J.).)
*968 Here, however, it does not matter which definition of “fundamental miscarriage of justice” one applies, because petitioner has not alleged facts that, if proved, would establish a fundamental miscarriage of justice under either definition.