Amicus Curiae Brief — Gray v. Netherland

Supreme Court of the Anited States

ae 3 OCTOBER TERM, 1995

COLEMAN WAYNE GRAY,

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BEST AVAILABLE COPY

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QUESTIONS PRESENTED

Has a federal constitutional question been “fairly presented”

to the state courts, for the purpose if the habeas procedural

default and exhaustion rules, when the only arguments made

there were recitations of the facts, discussions of state law,

and generic references to “due process” and “fair trial”?

When a defendant has demanded exclusion of evidence as a

sanction for a discovery violation and not requested any

lesser sanction, would a rule to the effect that admission of

the evidence is constitutional error be a “new rule” under

Teague v. Lane?

(i)

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I

The present case illustrates the need to clearly and precisely

identify the claims in federal habeas proceedings ...... 4

DT eG ho cebecedescccccces 4

~~~ Shes eeebcceccoceccccces 7

I

None of petitioner’s claims before this Court was fairly

presented to the state courts ...... 2. cece eeees 10

A. The incomplete notice claim .............. 11

B. The sandbagging claim ................. 16

Sc cece cece ccececes 16

D. Effect of failure to present............... 17

It

The “sandbagging” claim is Teague-barred .......... 19

A. Summary of Teague cases ............... 20

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IV

Gray’s proposed rule does not come close “to the primacy and

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TABLE OF AUTHORITIES

Cases

Adamson v. Ricketts, 865 F. 2d 1011 (CA9 1988) ..... 29

Allen v. Georgia, 166 U. S. 138, 41 L. Ed. 949,

i nr cWEs 6 Gab 6556 6606s s dc cce 23

Anderson v. Harless, 459 U. S. 4, 74 L. Ed. 2d 3,

DCC css cdbbeedeecendiees 5,12

Arizona v. Roberson, 486 U. S. 675, 100 L. Ed. 2d 704,

108 S. Ct. 2093 (1988) ... 1... eee eee eee eee 24

Boyde v. California, 494 U. S. 370, 108 L. Ed. 2d 316,

De a SD GUN bc eeeeeneeee eeecee 24

Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215,

ie .c.cWp eke sees ee ebeecda 10

Brown v. Allen, 344 U. S. 433, 97 L. Ed. 2d 469,

PPTL cosh bwetatebee eb eaedeoce 18

Bullington v. Missouri, 451 U. S. 430, 68 L. Ed. 2d 270,

DPC 2. béseeenes eee ewe ewes 22

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

te ikon eset ade Udoeaews 21, 27

Caspari v. Bohlen, 127 L. Ed. 2d 236, 114 S. Ct. 948

Di -oukadendes ¥s ees eee ee see 10, 22, 24, 27

Castille v. Peoples, 489 U. S. 346, 103 L. Ed. 2d 380,

ny “sin wa't «eee oe dtu aa's 10, 18

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

i «cs 6 e's e6 sé 00's eee weet 19

Dandridge v. Williams, 397 U. S. 471, 25 L. Ed. 2d 491,

DT PED oveceusteeacdéecens's coc 11

Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811,

BP GE GOOD ccc ccc cc ccccsecccsceces 17

Dowling v. United States, 493 U. S. 342, 107 L. Ed. 2d 708,

56S Gk Gee ooo dmets suneeheubenaes 14

Dugger v. Adams, 489 U. S. 401, 103 L. Ed. 2d 435,

ee fl re eee 13

Duncan v. Henry, 130 L. Ed. 2d 865, 115 S. Ct. 887

GD av aiedecdvessesccnude cheer RE as ees 5

Edwards v. Arizona, 451 U. S. 477, 68 L. Ed. 2d 378,

F&F rere oe re eee 21

Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,

2 Fs 8 0 PP 6, 10, 15, 18

Estelle v. McGuire, 502 U. S. 62, 116 L. Ed. 2d 385,

Se GE ED cccbhédenadeninnheet-c46% 12

Ex parte Royall, 117 U. S. 241, 29 L. Ed. 868,

Ses Ge. CD vo ceceeceeetenabeteteceees 4

Flamer v. Delaware, 68 F. 3d 736 (CA3 1995) ....... 22

Gardner v. Florida, 430 U. S. 349, 51 L. Ed. 2d 393,

75 | 5 . Ferrer re free 20

Gilmore v. Taylor, 124 L. Ed. 2d 306,

PG. Gk SGD «0.6 ouvvowere wees 22, 25, 28

Godfrey v. Georgia, 446 U. S. 420, 64 L. Ed. 2d 398,

Se, Ge PEED connnnasdsenvuweded 21, 26

Goeke v. Branch, 131 L. Ed. 2d 152, 115 S. Ct. 1275

Rr ee eee 23

Graham v. Collins, 122 L. Ed. 2d 260, 113 S. Ct. 892

DD svcewnesdten hank aehee comme 21, 24, 25, 28

Granberry v. Greer, 481 U. S. 129, 95 L. Ed. 2d 119,

re ks DE ws nna ceksneahtabewese 11

Gray v. Commonwealth, 233 Va. 313,

a a es 66.4. 6 0.4.6 2 R086 bb ae ete 12

Gray v. Thompson, 58 F. 3d 59

ey ee 7, 8, 16, 19, 20

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

SB ee ee eee 13

Harris v. Reed, 489 U. S. 255, 103 L. Ed. 2d 308,

Sa Os Ge DUGEED. co cecccciesecsiiees 10, 11, 18

Hawks v. Cox, 211 Va. 91, 175 S. E. 24 271 (1970) ... 15

Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232,

es SI Eiken nh dk ddd de aSd 6 00 ¥00 5

Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,

EE ee 25

Jurek v. Texas, 428 U. S. 262, 49 L. Ed. 2d 929,

I a Cals dic de b dS ele wwe we oe 21

Keeney v. Tamayo-Reyes, 504 U.S. 1, 118 L. Ed. 24 318, |

SE GUD 0% 60 du essveceésus suet 16

Kyles v. Whitley, 131 L. Ed. 2d 490, 115 S. Ct. 1555

ra ong on On Oe odie beads avees 26

Lankford v. Idaho, 500 U. S. 110, 114 L. Ed. 2d 173,

ee I ~ceUee od Wkbeeedeece ce 26

Lee v. Illinois, 476 U. S. 530, 90 L. Ed. 2d 514,

es ED de bay oc 6u ban 60.006 08 12

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

nn (oT dw inn le 6 a waie dundee 6 64 20

Lockhart v. Fretwell, 122 L. Ed. 2d 180,

it. 6 ook eb Obs bee nes hewn 29

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

I ln co gu'ode cadences ova 10, 29

Maleng v. Cook, 490 U. S. 488, 104 L. Ed. 2d 540,

Re eee 6

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

os ko wigs pp aide deeeh owes 27

McCleskey v. Zant, 499 U. S. 467, 113 L. Ed. 2d 517,

See Gs es PUP EEED cocccecccccnsecesesens 4

Viii

Miller v. Fenton, 474 U. S. 104, 88 L. Ed. 2d 405,

See: Gh Ge 6 owe cb cc ce Oboe bee as 6, 27

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

|. B | AS ee ee 24

Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791,

7) 8 RS ees re eee 9, 26

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

Ge Ge ER os oak wk wee Caw en Gas 17

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

ee, Gk ED a 6.0 3 4 om 6 ee ee 15, 18

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

Sa, Ge, SEED 6 bv ncn sebeabadea 21, 28, 29

People v. Robertson, 33 Cal. 3d 21, 655 P. 2d 279

IN leer rere ee or ere ee ree 14

Peterson v. Commonwealth, 225 Va. 289,

DT ee eee 12

Picard v. Connor, 404 U. S. 270, 30 L. Ed. 2d 438,

ee Oh, Gh Se 2. 3 « wees s wun sates 5, 6, 12

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

eo: GR eG on 6a 0 Se Wee Gabe s < 10, 18

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

ERR fF Fars 21, 23, 24, 30

Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293

ee eee Tre ry re ene 20

Sandstrom v. Montana, 442 U. S. 510, 61 L. Ed. 2d 39,

Sd, Gk, SEE on oa uite be a Ae Oe ee eae es 5

Sawyer v. Smith, 497 U. S. 227, 111 L. Ed. 2d 193,

Sa, Gk DD << ceneet-cene ed 20, 21, 23, 25

Schiro v. Farley, 127 L. Ed. 2d 47, 114 S. Ct. 783

CREO cccceekceccesececeadeces eet ée see 11

Slayton v. Parrigan, 215 Va. 27, 207 S. E. 2d 680

DE 6 te ek ood 609 b6 6 bke UeUS bb H 60d 000 15

Smith v. Estelle, 602 F. 2d 694 (CAS 1979) ....... 15, 16

Smith v. Murray, 477 U. S. 527, 91 L. Ed. 2d 434,

DUNC ET cc Gnade sebeececcences 19

Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

kd Ae er es Pe 26

Stringer v. Black, 503 U. S. 222, 117 L. Ed. 2d 367,

Se ee SE cv boo olc cb G8 0a) on od 60 21, 22

Taylor v. Illinois, 484 U. S. 400, 98 L. Ed. 2d 798,

aes re eee 19

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

Se Ge SPEED cc ccc cetstece 4,7, 10, 18, 29

Thompson v. Keohane, 133 L. Ed. 2d 383, 116 S. Ct. 457

TC UE RRETEE CEERI LTE LEE 26, 27

Thurston Motor Lines, Inc. v. Jordan K. Rand, Litd.,

460 U. S. 533, 75 L. Ed. 2d 260, 103 S. Ct. 1343

Pec be ta ~ RES «sb 646060 Ve eee cc 23

Turner v. Williams, 35 F. 3d 872

ee ee ede. Ss. oin'e't oleae 20, 26, 27, 28

United States v. Caceres, 440 U. S. 741, 59 L. Ed. 2d 733,

oP chee tecdeaeeesees 20

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

BR ee 4,18

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

I le 29

Wardius v. Oregon, 412 U. S. 470, 37 L. Ed. 2d 82,

i es Ua is Caid ke ae Ga 6% 0 y

Weatherford v. Bursey, 429 U. S. 545, 51 L. Ed. 2d 30,

ee Ce ee Wien ede see i)

Wright v. West, 505 U. S. 277, 120 L. Ed. 2d 225,

jeg Ge | Ieper rer ree 25, 27, 28

Yist v. Nunnemaker, 501 U. S. 797, 115 L. Ed. 2d 706,

iE R.e ° are rr bir Te 15

Statutes

SOG: © GC abcde cnndveas cu saeenewesa 4, 17, 18

SG. BB Be’ 0s bbe sev esvegnes tawedeas 14

Gah, Pemed Game GB GGeS oc cccicccictecedevecns 19

California Constitution

Cal, Comet... AGE: Ves BED obs oe 6 CE Sec coeivsces 5

Rules of Court

Supreme Court Rule 14.1 ........ ccc cere eeees 11

Federal Rule of Appellate Procedure, Rule28 ........ 11

Treatise

J. Liebman & R. Hertz, Federal Habeas Corpus Practice and

PURSNNGS CHEE. THD cc cc crecsrcecesesese ds 14

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

COLEMAN WAYNE GRAY,

Petitioner,

vs.

J. D. NETHERLAND, Warden,

Respondent.

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 non-

profit California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the constitutional protections of

the accused into balance with the rights of victims and of society

to rapid, efficient, and reliable determination of guilt and swift

execution of punishment.

The present case involves a collateral attack on the final

judgment of a state trial court based on arguments never fairly

presented to the state courts and, in part, attempting to create

new rules not existing at the time of the state decision. Such

unwarranted attacks on final judgments are contrary to the rights

of victims and society which CJLF was formed to protect.

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

SUMMARY OF FACTS AND CASE

On May 2, 1985, Coleman Gray and Melvin Tucker robbed,

kidnapped, and murdered Richard McClelland. J. A. 355-356.

Tucker testified that Gray was the triggerman. The jury

convicted Gray of capital murder. J. A. 357. In the penalty

phase, Gray admitted involvement in the crime. but still denied

being the triggerman. Brief for Petitioner 11.

Prior to guilt phase, the prosecution notified the defense it

would accuse Gray in the penalty phase of having murdered Lisa

Sorreli and her 3-year-old daughter Shanta. The prosecutor said

he would only introduce statements of Gray to other persons as

evidence of this.

Three days later, at the conclusion of the guilt phase, the

prosecutor said he had additional evidence to introduce. The

defense moved to exclude the additional evidence, but the trial

court denied that motion, holding the evidence admissible. J. A.

172. In addition to the Sorrell murders, Gray’s criminal record

included 13 felony convictions, at least nine of which were

violent. J. A. 358.

The defense did not move for a continuance. J. A. 365.

The conviction and sentence were affirmed on appeal. J. A.

109. Gray had counsel for state habeas, see J. A. 110, his

petition was dismissed, J. A. 118, and the dismissal was

affirmed. J. A. 126-127. The federal District Court granted

habeas relief on the ground that the Commonwealth had “failed

to give fair notice of its intention to prove” that Gray committed

the Sorrell murders. J. A. 353. The Fourth Circuit reversed,

holding that the District Court had impermissibly created a new

rule contrary to Teague v. Lane. J. A. 367-368.

SUMMARY OF ARGUMENT

In order to coherently apply the rules governing habeas

corpus, it is necessary to have a clear definition of what the

“claim” is. A claim must be stated in both state and federal

court in terms specific enough to identify the relevant precedents

and apply them to the facts of the case before the court.

Petitioner claims, and the District Court held, that admission

of the evidence of the Sorrell murders beyond that which the

prosecutor earlier disclosed he would introduce violated the

Constitution. Given that the defense did not move for a continu-

ance upon learning of the additional evidence, such a claim

would have to include a contention that either (1) exclusion is the

sole constitutionally permissible remedy for such a discovery

violation, or (2) the trial court is constitutionally required to

order a continuance sua sponte.

Neither the above claim nor the Brady claim was ever fairly

presented to the state courts. The arguments submitted to state

courts were recitations of the facts, discussions of state law, and

generic references to “due process” and “fair trial.” Such

arguments, this Court has repeatedly held, fail to fairly present

federal claims. The claims must, therefore, be either unc :-

hausted or procedurally barred.

Examination of this Court’s Teague cases reveals some

patterns which may help put more structure into previously

general verbal formulations. A “new rule” for Teague includes

any ground for decision which (1) overrules a precedent of this

Court on point; (2) elevates an existing nonconstitutional rule to

constitutional status; (3) longitudinally extends an existing rule

to a situation with an impact on defendant similar in kind but less

in degree or to a situation further removed from the core

constitutional rule; (4) branches off in a new direction from the

old rule to a situation different in kind; or (5) sculpts a specific

rule of procedure out of a block of general principle. On the

other hand, a rule is not new if it simply applies an existing,

specific rule to a situation in which the defendant suffers the

same type of harm in the same degree. Also, an application of

a rule which must be applied case-by-case as a mixed question

of law and fact is not a new rule.

Petitioner in this case attempts to create a new rule in several

of the ways stated above. His proposed rule does not come close

to qualifying for the second Teague exception.

ARGUMENT

I. The present case illustrates the need to clearly and

precisely identify the claims in federal habeas proceedings.

A. General Principles.

Petitioner Gray presents the state and federal courts with a

moving target. Question | in his brief on the merits in this Court

is different from the Questions Presented in his certiorari

petition. Compare Brief for Petitioner i, with Pet. for Cert. i.

These claims are different from the claims presented to the state

courts, as discussed further in part II, infra.

For over a hundred years, state prisoners have been required

to present their federal claims to state courts first, before

resorting to federal habeas corpus. See Ex parte Royall, 117

U. S. 241, 251-253 (1886); 28 U. S. C. §2254(b). In addition

to enforcing this requirement, federal courts must also determine

whether claims are procedurally barred under the rule of

Wainwright v. Sykes, 433 U. S. 72, 87 (1977) or precluded by

the rule of Teague v. Lane, 489 U. S. 288, 301 (1989).?

To correctly address these questions, one must have a clear

understanding of what the “claim” is. Coherent discussion of

whether a claim was fairly presented to the state courts and, if

not, whether it is presently barred is not possible if the partici-

pants use the term “claim” to refer to completely different

things. Much of the confusion in habeas corpus cases results

from fuzzy definition of the claims.

A few basic rules for defining the claim come from this

Court’s decisions on exhaustion and procedural default. First,

it has been established for at least 25 years, if not longer, that a

mere statement of the facts on which a federal constitutional

claim could be based does not state such a claim. Second, a

petitioner claiming a violation of a particular provision of the

federal Constitution must identify that provision to the state

court.

2. If the federal petition is not the first, federal courts must also determine

whether the claim is barred by the rule of McCleskey v. Zant, 499 U. S.

467, 494-495 (1991).

Picard v. Connor, 404 U.S. 270 (1971) established and

illustrates these rules. Connor complained to the state courts

regarding the manner in which he was indicted, citing the state

constitution and statutes. /d., at 273. The only federal claim

made in his state pleadings was an attempt to “incorporate” the

Fifth Amendment’s grand jury requirement, ibid., contrary to

Hurtado v. California, 110 U. S. 516, 534-535 (1884). When

the federal Court of Appeals held that Connor had satisfied the

exhaustion requirement for a federal equal protection claim, this

Court reversed, holding that the claim must be “fairly present-

~ ed.” 404 U. S., at 275. “To be sure, respondent presented all

the facts. Yet the constitutional claim the Court of Appeals

found inherent in those facts was never brought to the attention

of the state courts.” J/d., at 277.

Anderson v. Harless, 459 U. S. 4 (1982) further established

that a broad reference to the Fourteenth Amendment is not

sufficient to fairly present to the state courts a more particular

claim. Harless complained to the state courts that his jury’s

instruction on malice was erroneous, Citing several state cases,

in one of which “the defendant argued broadly that failure to

properly instruct a jury violates the Sixth and Fourteenth

Amendments.” /d., at 6. This claim is sufficiently different

from a claim under Sandstrom v. Montana, 442 U.S. 510

(1979), that the Sandstrom claim was unexhausted. The

assertion of “a broad federal due process right to jury instruc-

tions that ‘properly explain’ state law,” is a different claim from

“the more particular analysis developed in cases such as Sand-

strom, supra.” Harless, 459 U. S., at 7 and n. 3. Thus, when

a particular line of cases supports the petitioner’s argument, that

line or at least the reasoning of that line must be brought to the

attention of the state courts. A generalized appeal to “due

process” is not sufficient.

From Connor and Harless, it would seem to be obvious that

a claim made in state court purely on state law, without even

mentioning the federal constitution or laws, is a different claim

from any federal claim. Yet, this point needed to be reiterated

just last term. Duncan v. Henry, 130 L. Ed. 2d 865, 868, 115

S. Ct. 887, 888 (1995); ibid. (Souter, J., concurring). Henry

had contended on direct appeal that certain evidence at his trial

was a “miscarriage of justice.” Jbid.; see Cal. Const., Art. VI,

§ 13 (state standard for reversible error). This is a different

claim from an assertion that the same error violates the Due

Process Clause of the Fourteenth Amendment.

The problems resulting from ill-defined claims produced a

sharp exchange between the majority and dissent in Engle v.

Isaac, 456 U. S. 107 (1982). The majority found the claim

procedurally barred, id., at 135, but the dissent discerned a

different claim, which was unexhausted and should therefore

have resulted in dismissal. /d., at 141 (opinion of Brennan, J.).

The majority noted,

“It is, of course, possible to construe Isaac’s confused

petition and supporting memorandum to raise the claim

described by JUSTICE BRENNAN. Many prisoners allege

general deprivations of their constitutional rights and raise

vague objections to various state rulings. A creative appel-

late judge could almost always distill from these allegations

an unexhausted due process claim.” /d., at 124, n. 25.

Thus, the claims in a habeas petition do not include every

claim that might be distilled from a “confused petition and

supporting memorandum.” A state prisoner on federal habeas

corpus is requesting a drastic remedy: the nullification in

collateral proceedings of the final judgment of the coequal state

judiciary. Cf. Miller v. Fenton, 474 U. S. 104, 112 (1985). At

least where the petitioner is represented by counsel,” it is not too

much to ask that he state the grounds for such a drastic remedy

in specific terms, in both state and federal courts.

A “claim,” amicus submits, is an assertion that rule of law

X applied to facts Y requires result Z. In order to fairly present

the claim to the state courts, X, Y, and Z must be stated there in

terms specific enough to permit the state court to rule on the

claim, without doing counsel’s job and reformulating the claim.

Citation to the cases supporting the claim is the clearest and most

concise way of identifying the rule of law, even if “book and

verse” citation is not strictly required. See Connor, supra, 404

3. Indigent petitioners for whom counsel are not appointed may present

special considerations. See Maleng v. Cook, 490 U. S. 488, 493 (1989)

(per curiam). As those facts are not presented in this case, amicus will

not discuss them.

U. S., at278. Harless, supra, makes clear that broad references

to due process are not sufficient.

The purpose of habeas review is to force trial and appellate

courts to “toe the constitutional mark,” Teague v. Lane, supra,

489 U. S., at 307 (plurality opinion) (internal quote marks and

citations omitted), but a mark cannot be “toed” unless it is

identified. State courts must be provided with enough definition

to find the applicable precedents, for how else can they be

expected to obey them? A fulminating petition long on adverbs

and short on analysis will therefore “fairly present” few, if any,

B. The Present Case.

With these principles in mind, we turn to the present case.

From the statements of fact in the petitioner's pleadings, and

from those in the Court of Appeals not denied by the petitioner,

the following circumstances regarding the Sorrell evidence might

be alleged in support of federal claims:

1. On December 2, 1985, prior to commencement of the

guilt trial, defense counsel asked if the prosecution intended to

make an issue of the Sorrell murders in the penalty phase. See

Pet. for Cert. 3-4.

2. The prosecutor stated that he did intend to accuse Gray

of the Sorrell murders, but that the evidence would consist of

Statements made by Gray to others. /d., at 4.

3. Defense counsel did not investigate the details of the

Sorrell case. Brief for Petitioner (“Pet. Brief”) 39.

4. On December 5, after the guilt trial and three days later

than the defense’s original request, the prosecutor disclosed that

he intended to introduce additional evidence. Pet. for Cert. 6.

5. The same evening, the police detective submitted to an

interview with defense counsel. Gray v. Thompson, 58 F. 3d

59, 61, 64 (CA4 1995). Petitioner’s statements of facts in his

petition and brief do not claim that the detective refused to

answer any questions asked of him or made any false statements

to counsel.

6. The following morning, at the beginning of the penalty

phase, defense counsel moved to exclude the additional evidence.

Pet. Brief 6-9.

7. The trial judge denied the motion and admitted the

evidence. /d., at 9-10.

8. Even though allegedly inadequate notice was the basis for

the exclusion motion, trial counsel did not move for the alternate

remedy of a continuance to conduct the investigation. A three-

day continuance would have been a complete cure for the

prosecutor's so-called “sucker punch.” See id., at 39. “If the

defense felt unprepared to undertake effective cross-examination,

one would think a formal motion for continuance would have

been forthcoming, but hone was ever made; counsel moved only

that the evidence be excluded.” Gray, supra, 58 F. 3d, at 64.

Petitioner’s copious statements of facts contain no denial of this

assertion.

9. The trial judge did not order a continuance sua sponte.

10. At the evidentiary hearing on federal habeas corpus over

seven years later, the detective stated that Mrs. Sorrell’s husband

had originally been a suspect, along with a few facts which had

supported that original suspicion. Pet. Brief 24-27. Petitioner

does not allege that defense counsel asked the detective about

other suspects the night before the penalty trial or that the

detective made any false statements to counsel in this regard.

Evaluating these facts for possible federal claims, the first

claim that would seem to fairly jump off the page on facts 3, 8,

and 10 is ineffective assistance of counsel. Petitioner's present

assertion that no investigation was appropriate because no

competent lawyer would introduce details of the crime even if

they showed someone else committed it, Pet. Brief 40, fails the

“straight face” test. Petitioner’s fire and brimstone rant about

“disinformation . . . disabling defense counsel, ” id., at 28,

cannot conceal the curability of the allegedly inadequate notice

and counsel's lack of request for the cure.

Yet no claim of ineffective assistance has been made to the

federal courts. See Memorandum Opinion of April 1, 1993, pp.

7-10 (summarizing claims, ineffective assistance not among

them). There may well be a reason known only to the defense

why no such claim lies. We only know that no ineffectiveness

claim has been made in the present proceeding.

Conceivably, a lawyer might make a claim that lack of notice

of the specific evidence to support the allegation tat Gray

committed the Sorrell murders is itself a federal constitutional

violation. The District Court originally understood that to be the

claim and summarily rejected it on the merits. /d., at 10, 11.

That would, of course, be a correct decision, as this Court has

held repeatedly that there is no constitutional right to discovery.

Weatherford v. Bursey, 429 U. S. 545, 559 (1977); Wardius v.

Oregon, 412 U.S. 470, 474 (1973). Petitioner not only

disclaims such an argument in this Court, but asserts he has

never made this claim. Pet. Brief 46, n. 37.

A different contention would be that once a prosecutor has

stated the evidence he intends to introduce, either voluntarily or

in compliance with state law, he is bound by that statement.

Although petitioner does not expressly say so, to make that

contention on the facts of the present case, one would also have

to contend that either (1) exclusion of the additional evidence is

the sole permissible remedy for a violation of this rule, since that

is the only remedy the defense requested, or (2) the trial court is

constitutionally required to order a continuance sua sponte, if

that is the other remedy the state wishes to make available. For

brevity, we will call this the incomplete notice claim.

A variation on the incomplete notice claim would make the

rule turn on the prosecutor’s intentions at the time of his initial

statement. This Court adopted such a distinction in cases where

testimony is alleged to have been perjured, which is only a

federal constitutional violation if the prosecutor knew at the time

it was perjured. Mooney v. Holohan, 294 U.S. 103, 112

(1935). An analogous rule would be that it is federal constitu-

tional error for the prosecutor to state what evidence he intends

to introduce when he knows at the time of the statement that he

actually intends to introduce additional, undisclosed evidence.

Again, however, to make a claim of real injury on the facts of

the present case, the rule would also have to include a require-

ment that the trial court either exclude the evidence on motion or

order a continuance sua sponte. For lack of a better label, we

will call this the “sandbagging” claim.

10

Finally, there is petitioner’s sole contention on established

law, that the prosecution failed to disclose evidence known to it

which was materially exculpatory as to penalty. This is the rule

of Brady v. Maryland, 373 U. S. 83, 87 (1963).

With the claims defined, we can turn to the questions of

whether they are properly before the federal court on habeas,

and, if so, whether they state grounds for habeas relief. This

Court has said that the rule of Teague v. Lane, 489 U. S. 288

(1989) is a “threshold question in every habeas corpus case,”

Caspariv. Bohlen, 127 L. Ed. 2d 236, 245, 114 S. Ct. 948, 953

(1994), but has not said whether it should be addressed before

the issues of exhaustion and procedural default. Amicus will

address the exhaustion/default issues first, because they go to the

question of whether the claims are properly before the federal

courts in this case, and then address the Teague issues, which go

to the question of whether the claims are the kinds of claims for

which habeas relief is properly granted. See Mackey v. United

States, 401 U.S. 667, 684 (1969) (opinion of Harlan, J.);

Bohlen, 127 L. Ed. 2d, at 245, 114 S. Ct., at 953 (Teague issue

“fairly included” in question of the merits).

II. None of petitioner’s claims before this Court was

fairly presented to the state courts.

The rules of exhaustion and procedural default have different

theoretical bases. Exhaustion is a rule of comity between state

and federal courts. See Rose v. Lundy, 455 U.S. 509, 518

(1982). Procedural default is based on the principle that when

a Claim is defaulted the state judgment rests on independent state

grounds and not on a reviewable determination of a federal

question. See Harris v. Reed, 489 U. S. 255, 260 (1989). Yet

the two doctrines are linked by the fact that a claim is deemed

exhausted, even though never fairly presented to the state courts,

if there is no longer any remedy available there, i.e., if it is

procedurally defaulted. See Castille v. Peoples, 489 U. S. 346,

350 (1989).

Just as the defendant can default his claims by not raising

them at the proper time in state court, so the prosecution can lose

this defense by not asserting it when required. See Engle v.

,)

11

Isaac, 456 U. S. 107, 124-125, n. 26 (1982); but see Granberry

v. Greer, 481 U. S. 129, 131 (1987) (belated unexhaustion claim

discretionary). However, if the state court rules on the merits

rather than relying on default, then the claim is reviewable on

federal habeas. See Harris, supra, 489 U. S., at 263. Analo-

gously, then, if the District Court has ruled on procedural

default, whether or not raised by the state, that issue should be

reviewable in the Court of Appeals. As the prevailing party in

the Court of Appeals, respondent can assert here any ground

which would have been a valid basis for decision there, even if

that court’s decision was on another ground. Dandridge v

Williams , 397 U. S. 471, 475, n. 6 (1970). The present case is

distinguishable from Schiro v. Farley, 127 L. Ed. 2d 47, 56, 114

S. Ct. 783, 788 (1994), in that the Commonwealth did raise

default at the petition stage. Brief in Opposition i.

In the present case, the District Court characterized the

claims arising out of the admission of the Sorrell evidence as a

single claim and held that the claim “was consistently raised in

the State courts and is not procedurally defaulted.” Pet. Brief

19, quoting Memorandum Opinion on Order Denying Judgment

3-4. The correctness of that ruling is properly before this Court.

A. The Incomplete Notice Claim.

In evaluating whether a claim has been fairly presented, the

principal focus should be on the appellant’s own statement of the

claim. Most reviewing courts require a statement of the issues

somewhere other than the body of the argument. See, e.2.,

Supreme Court Rule 14.1(a) (questions presented); Fed. Rule

App. Proc. 28(a)(3) (issues presented for review). In the

heading to his argument on the Sorrell evidence on direct appeal,

counsel for Gray stated the claim thusly:

“The trial court erred in overruling Gray’s objection to the

admission of certain evidence, at the penalty phase regarding

other crimes which the Commonwealth alleged Gray com-

mitted, but for which Gray had never been charged, indicted,

tried, or convicted. (Assignment of Error #41).” Brief on

Appeal | (capitalization normalized).

This would appear on its face to be an argument about the

general admissibility of evidence of prior, uncharged miscon-

12

duct, a question generally within the realm of state evidence law

and not the federal Constitution. No opinion of this Court

recognizes this issue to be one of federal constitutional law, and

the last opinion discussing such issues expressly reserved that

question. Estelle v. McGuire, 502 U. S. 62, 67-68 (1991).

The body of the argument, pages | to 4, confirms this

impression. Gray cited only one federal constitutional case, Lee

v. Illinois, 476 U. S. 530 (1986), to support his objection to the

testimony of the accomplice, Melvin Tucker. That is the

evidence which the defense was notified would be presented and

thus is irrelevant to the claims before this Court.

For his lack of notice point, Gray cited Peterson v. Common-

wealth, 225 Va. 289, 302 S. E. 2d 521, 526 (1983), which is a

decision stating the “preferred practice” and not a constitutional

rule. The only other citations in the argument are to cases where

evidence of prior uncharged crimes was admitted, with discus-

sion of why they are distinguishable. The only mention of the

Constitution with regard to the evidence at issue here is in the

final paragraph:

“Gray’s counsel were not advised that Det. Slezak would

testify or that color photographs would be offered, until the

conclusion of the ‘Guilt Trial’ on December 5, 1985. To

permit such evidence as the details of the Sorrell murders,

enlarges the scope permitted by Watkins [a state case] to such

an extent that Gray’s right to a fair trial, as guaranteed by

the U. S. and Virginia Constitutions, was violated.”

The situation is strikingly similar to Picard v. Connor, 404

U. S. 270 (1971) and Anderson v. Harless, 459 U. S. 4 (1982).

We have a meritless reference to one federal point, cf. Connor,

404 U. S., at 277, and a single assertion without citation in the

broadest possible terms, due process in Harless, 459 U. S., at7,

and fair trial in the present case. The state court properly

understood the claim to be one of admissibility under state

evidence law and analyzed it accordingly. Gray v. Common-

wealth, 233 Va. 313, 346, 356 S. E. 2d 157, 175 1987); cf.

Harless, 459 U. S., at 7.

On pages 45-46 of his brief, petitioner makes the following

assertion:

13

“(T]he state, including in the sentencing phase of a capital

trial, may not engage i» conduct which affirmatively mis-

leads opposing counsel in such a way so as to deny the

defendant a meaningful opportunity to develop his response,

to explain, or to rebut the state’s presentation on an issue the

state itself has made determinative of the outcome. Although

the Virginia Supreme Court held to the contrary, the ‘short

answer’ to the state court’s decision is that it ‘made a serious

mistake.’”

Petitioner, not the Virginia Supreme Court, is seriously

mistaken. That court made no such ruling for the simple reason

that no such argument has ever been presented to it. The state

court was presented with an objection to the admission of

evidence, not a claim of denial of due process through prosecutor

misconduct. Had Gray objected to the timing problem as such,

distinct from his claim that the evidence was inadmissible, we

would now have a ruling on whether his failure to move for a

continuance defaulted that objection under state law. Cf. Dugger

v. Adams, 489 U.S. 401, 408 (1989) (state court default

deprived federal courts of ruling on predicate question of state

law). We do not have that ruling because petitioner did not

fairly present that question on appeal.

Next, we move to the state habeas petition. Counsel for

Gray in this Court chooses to quote the body of the argument

supporting the claim for his characterization of the claim. Pet.

Brief 13. Again, amicus believes that the better practice is to

look first at state habeas counsel’s own statement of the claim:

“IX. The Commonwealth introduced unfairly prejudicial

testimony and other evidence regarding the Sorrell murders in

order to establish future dangerousness.”

The body of the argument cites the same cases as the direct

appeal brief. Compare Petition for Writ of Habeas Corpus

[State] 37-39, with Brief on Appeal 1-4. Gregg v. Georgia, 428

U. S. 153 (1976) is cited only in the negative, that it “did not go

so far as to allow the kind of evidence such as the Sorrell

murders which the Commonwealth introduced in this casc.”

Petition for Writ of Habeas Corpus 38. The paragraph which

petitioner quotes selectively reads in its entirety as follows:

14

“76. The Commonwealth did not disclose its intention to use

the Sorrell murders as evidence until such a late date that it

was impossible for Gray’s defense counsel to reasonably

prepare for its use. Gray was literally tried and convicted in

Suffolk of an uncharged and unproved offense in Chesa-

peake, by the use of what amounts to no standard of proof.

The evidence was entirely circumstantial except for the

testimony of Gray’s co-defendant Tucker, who testified

pursuant to a plea bargain. The only fair defense would be

either the requirement of proof beyond a reasonable doubt or

for the defendant’s innocence to be proved. The first was

not achieved and the second was impossible, and in fact no

amount of preparation time on the part of defense counsel

would have been adequate. See J. A. at 1374-1375 for a lay

opinion of the fundamental fairness of this aspect of the case.

The use of such proof and the way in which it was used was

simply outrageously unfair and made a mockery of Gray’s

rights to due process of law under the Fourteenth Amend-

ment and the Virginia Constitution.” /d., at 39-40 (italics

added; underline in original).

The errors apparently claimed by this paragraph are the

admission of the evidence and the lack of an instruction to the

jury on a burden of proof for prior offenses.‘ Far from claim-

ing error in the court’s failure to grant more preparation time,

state habeas counsel disclaimed such a remedy. The only federal

constitutional argument is a generic reference to due process,

which was found insufficient in Harless, supra.

Within a unitary judicial system, it is a common rule that

collateral attack generally cannot be used either for claims that

were raised and rejected on appeal or for claims that could have

been made on appeal but were not. The federal courts follow

these rules in 28 U. S. C. § 2255 cases, see 2 J. Liebman & R.

Hertz, Federal Habeas Corpus Practice and Procedure §§ 41.4a,

4. Some states have such a rule, but it is not a constitutional mandate. See,

e.g., People v. Robertson, 33 Cal. 3d 21, 54, 655 P. 2d 279, 298 (1982)

(acknowledging new statute could have overturned rule, though holding

it did not); see also Dowling v. United States, 493 U. S. 342, 348 (1990)

(prior offense introduced as evidence need not be proven beyond a

reasonable doubt).

15

41.7c, pp. 1197, 1223 (2d ed. 1994), and so do the courts of

Virginia on state habeas. Hawks v. Cox, 211 Va. 91, 175

S. E. 2d 271, 274 (1970); Slayton v. Parrigan, 215 Va. 27, 207

S. E. 2d 680, 682 (1974).

Gray’s state habeas petition gave the state courts no reason

to believe his habeas claim IX was a different claim from his

assignment of error #41 on appeal. The phrasing of the claim

was substantially the same. The same cases were cited in

argument. Neither asserted any federal authority against the

evidence now in question beyond the generic references to due

process and fair trial. In the Virginia Supreme Court, state

habeas counsel went so far as to expressly state that he was

asking for reconsideration of the same claim. “VIII. This Court

Should Reexamine [Its] Ruling in Gray v. Commonwealth, 233

Va. 313, 356 S. E. 2d 157 (1987) afs] It Relates to Gray’s Claim

IX and the Sorrell Murders.” Petition for Appeal 28. On page

31, habeas counsel asserted he was presenting “a different

treatment of the issues,” but did not claim a different issue. Not

surprisingly, both courts denied relief under the Hawks rule.°

In summary, on neither appeal nor state habeas did counsel

for Gray present the incomplete notice claim to the Virginia

courts. They certainly had the “tools to construct their constitu-

tional claim.” See Engle v. Isaac, 456 U.S. 107, 133, 145

(1982). Smith v. Estelle, 602 F. 2d 694 (CAS 1979) had been

decided 11 years earlier. The decision to pursue other claims

instead may very well have been a rational decision that the

claim was weak and should properly be winnowed out. See

Murray v. Carrier, 477 U. S. 478, 484 (1986). For whatever

reason, it was not fairly presented to the state courts within the

meaning of Connor, Harless, and Henry.

5. Petitioner notes that the Virginia Supreme Court only made its “plain

statement” of procedural bar on the prompting of the Commonwealth.

Pet. Brief 14, n. 11. It does not matter. Five months later this Court

decided Yist v. Nunnemaker, 501 U. S. 797, 804 (1991). Under the

“look through” rule of that case, the plain statement of the circuit court

would have sufficed.

16

B. The Sandbagging Claim.

As noted earlier, a variation on the incomplete notice claim

adds the factual element that the prosecutor knew at the time of

his representation that it was false. Smith itself did not place

great weight on such a finding, holding that the claim would lie

either way. 602 F. 2d, at 702. Even so, petitioner asserts it

strongly in this Court.

The additional factual element makes the sandbagging claim

one that could not have been raised on direct appeal, as the

appellate record does not contain any statement by the prosecutor

of such nefarious intent.° To be presented to the state courts, it

would have to be presented on state habeas, but it was not. The

state habeas pleadings are devoid of any reference to the fact

now asserted. Petitioner did not ask for an evidentiary hearing

on the Sorrell evidence questions other than a somewhat con-

fused reference to “establish{ing] the fact that they did likely

have an effect on the jury.” J. A. 115-116. Gray appealed the

denial of an evidentiary hearing on other claims, but not on this

one. J. A. 120-124.

As with the incomplete notice claim, the legal basis of this

claim was never fairly presented to the state court. In addition,

the factual basis was never presented. See Keeney v. Tamayo-

Reyes, 504 U. S. 1, 11-12 (1992); Gray v. Thompson, 58 F. 3d

59, 68 (CA4 1995) (Hall, J., concurring).

C. The Brady Claim.

The Brady claim, like the sandbagging claim, depends on

facts not actually known to defense counsel at trial, on appeal,

or apparently on state habeas. These facts may well have been

readily available, as the detective did submit to an interview by

6. More precisely, petitioner has not called the attention of the Court or

counsel to any such indication in the trial record, which we may safely

assume he would if it existed. See Brief for Petitioner 6-9. He refers

only to the federal habeas proceedings for this assertion. See, ¢.g., id.,

at 38. If the fact now urged upon the court with such vigor was so

important, it seems strange that trial counsel did not simply ask the

prosecutor if he had known all along that he intended to present the

additional evidence.

17

defense counsel prior to testifying, but we can assume for this

argument they were not actually known.

Nothing which even remotely sounds like a Brady claim

appears in petitioner’s state pleadings regarding the Sorrell

matter.

D. Effect of Failure to Present.

Absent a deficiency in state procedures, a claim which has

never been fairly presented to the state courts must be either

unexhausted or procedurally barred. The codification of the

exhaustion rule can be found in 28 U. S. C. §2254(b) and (c):

“(b) An application for a writ of habeas corpus in behalf of

a person in custody pursuant to the judgment of a State court

shall not be granted unless it appears that the applicant has

exhausted the remedies available in the courts of the State,

or that there is either an absence of available State corrective

process or the existence of circumstances rendering such

process ineffective to protect the rights of the prisoner.

“(c) An applicant shall not be deemed to have exhausted the

remedies available in the courts of the State, within the

meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question

presented.”

Absence of state corrective process would exist in a state

which did not allow appeals in criminal cases,’ or which did not

have some collateral review procedure for the adjudication of

claims outside the appellate record. Few, if any, states are so

deficient in their review procedures today, and so this clause is

rarely, if ever, invoked. The provision for “circumstances

rendering such process ineffective” was important in a bygone

era. Congress probably had Moore v. Dempsey, 261 U. S. 86,

91 (1923) in .nind. Again, though, such circumstances are rare

to nonexistent today.

On its face, the exhaustion language would appear to prohibit

federal habeas review of a claim for which the defendant once

7. There is no constitutional requirement to provide appeals. See Douglas

v. California, 372 U. S. 353, 356 (1963).

18

had a state remedy but which he allowed to lapse, whether

intentionally or inadvertently. This is, in fact, how the language

was construed soon after its enactment. “The statute requires

that the applicant exhaust available state remedies. To show that

the time has passed for appeal is not enough to empower the

Federal District Court to issue the writ.” Brown v. Allen, 344

U. S. 433, 487 (1953).

That interpretation has since been abandoned, however, and

the remedies referred to in section 2254(b) are now thought to be

only those still available at the time of the federal petition. See

Engle v. Isaac, 456 U. S. 107, 125-126, n. 28 (1982). Thus,

where the “fair presentation” requirement has not been met,

“[tJhe requisite exhaustion may nonetheless exist . . . if it is

clear that [the habeas petitioner’s] claims are now procedurally

barred under [state] law.” Castille v. Peoples, 489 U. S. 346,

351 (1989) (emphasis added). In this situation, Harris v. Reed,

489 U. S. 255 (1989) is inapplicable, Teague v. Lane, 489 U. S.

288, 298-299 (1989), and the federal court must examine state

procedural default law itself. See id., at 297-298 (examining

Illinois default law).

Because the consequence of nonexhaustion is dismissal of the

entire petition, Rose v. Lundy, 455 U. S. 509, 522 (1982),* a

petitioner who has not met the fair presentation requirement can

avoid dismissal only by showing that his own claim is, in fact,

procedurally barred in state court. Under the rule of Wainwright

v. Sykes, 433 U. S. 72, 87 (1977), however, that same showing

will bar a grant of relief unless the exceptions to the procedural

default rule can be met.

If petitioner’s claims are now procedurally barred in state

court, as seems likely from the strictness of Virginia’s default

rules applied in this case, Murray v. Carrier, 477 U.S. 478,

8. Lundy predated Teague, which greatly narrowed the authority of habeas

courts to grant relief on the kinds of creative claims which are especially

likely to emerge as unexhausted habeas claims. Given that both the

unequivocal wording of the statute and the comity policy which underlies

it only forbid a grant of relief on an unexhausted claim and not a denial

of relief, both efficiency and federal-state relations would be better

served by permitting federal habeas courts to deny unexhausted claims

which are either meritless on their face or Teague-barred.

19

482-483 (1986), Smith v. Murray, 477 U. S. 527, 533 (1986),

and Coleman v. Thompson, 501 U.S. 722, 727-728 (1991),

then relief cannot be granted unless the cause and prejudice test

is met.

The concurring judge on the Court of Appeals panel, the

only one to address the issue, thought Gray’s failure to meet this

test so obvious as to only warrant a single sentence. Gray v.

Thompson, supra, 58 F. 3d, at 68 (Hall, J. concurring). Peti-

tioner’s brief makes no effort to dispute this holding. Therefore,

all of the claims before this Court may properly be denied as

procedurally barred.

Ill. The “sandbagging” claim is Teague-barred.

Discovery violations occur every day in American courts; the

difficult question is what to do about them. Exclusion of the

offending party’s evidence is generally regarded as a drastic

sanction, reserved for extreme cases. See, e.g., Cal. Penal Code

§ 1054.5(c).

The present case is a mirror image of Taylor v. Illinois, 484

U. S. 400 (1988). In that case, as in this one, the defendant

sought to make a federal constitutional issue out of the remedies

for discovery violations in state court. In that case, it was

defense counsel who tried to call a last minute witness, and the

trial court found this to be a willful violation. /d., at 405-406.

The Court rejected the “argument that preclusion is never a

permissible sanction for a [defense] discovery violation,”

declining “to attempt to draft a comprehensive set of standards

to guide the exercise of discretion in every possible case.” /d.,

at 414 (emphasis in original).

While Taylor argued that less drastic sanctions were avail-

able and should have been used, id., at 413, Gray’s failure to ask

for less drastic sanctions and insistence that admission of the

evidence was constitutional error must logically rest on a premise

that any lesser sanction would be constitutionally inadequate. He

invites this Court to open a can of worms, federalizing and

constitutionalizing the question of when state court judges must

exclude evidence as a sanction for discovery violations. This

Court has, on a number of occasions, recognized the problems

20

in making constitutional issues out of violations of nonconstitu-

tional rules. See Sandin v. Conner, 132 L. Ed. 2d 418, 429,

115 S. Ct. 2293, 2299-2300 (1995); United States v. Caceres,

440 U. S. 741, 755 (1979); Brief of the Criminal Justice Legal

Foundation as Amicus Curiae in Whren vy. United States, No. 95-

5841, pp. 9-15.

This rule would not be new, he says, because it follows from

the principle of reliability in capital sentencing informatica

established in Gardner v. Florida, 430 U. S. 349 (1977). Brief

for Petitioner 45. If this argument sounds hauntingly familiar,

it is with good reason. That was precisely the argument made

and rejected in Sawyer v. Smith, 497 U. S. 227, 235-236 (1990).

Indeed, the present case is such a straightforward application

of Sawyer as to render it “uncertworthy.” If the Teague issue in

this case is worthy of the Court’s plenary attention, it would

seem to be because of the complaint of Turner v. Williams, 35

F. 3d 872, 887, n.16 (CA4 1994) that this Court’s Teague

decisions have been inconsistent and unclear.

The concurring judge in the Court of Appea!s panel found

language in Turner to be inconsistent with the panel majority’s

straightforward application of this Court’s Teague precedents,

and then resolved that dilemma by following the circuit prece-

dent instead of this Court’s precedents. Gray v. Thompson, 58

F. 3d 59, 67-68 (CA4 1995) (opinion of Hall, J.). This last step

is as erroneous as it is surprising. Turner strayed far afield, and

much of its language is irreconcilable with this Court’s prece-

dents. It is wrongly decided and should be expressly disap-

proved.

A. Summary of Teague Cases.

Since the verbal formulations of what is a “new rule” have

apparently provided insufficient guidance, it may be appropriate

at this point to summarize the holdings of this Court’s Teague

cases to date.

Three cases involve the rule of Lockett v. Ohio, 438 U. S.

586, 605 (1978) (plurality). That rule is that the sentencer in a

capital case may not be precluded from considering any circum-

stance the defendant puts forward as mitigating.

21

Penry v. Lynaugh, 492 U.S. 302, 319 (1989) held that

application of Lockett to a Texas case where the proffered

mitigating circumstance would not tend toward a favorable

answer on any of the special sentencing questions would not be

a new rule. The Penry Court noted that approval of the Texas

system in Jurek v. Texas, 428 U.S. 262, 272 (1976) (lead

opinion) had been expressly based on an assurance not met in

Penry’s case. 492 U. S., at 319.

Saffle v. Parks, 494 U. S. 484, 490 (1990), however, held

that Lockett did not, of its own force, govern how the jury was

to consider the mitigating circumstance. Hence, a prohibition

against instructing the jury not to consider sympathy would have

been a new rule.

Finally, Graham vy. Collins, 122 L. Ed. 2d 260, 275, 113

S. Ct. 892, 902 (1993) held that application of Lockett in Texas

to require additional instruction on youth as mitigation, when the

“future dangerousness” issue did permit some consideration of

youth, would be a new rule.

Each of the other Teague cases involves a different rule.

Edwards v. Arizona, 451 U. S. 477, 485 (1981) forbade police

to ask again for a Miranda waiver when an in-custody suspect

has already requested counsel once. Butler v. McKellar, 494

U. S. 407, 415 (1990) held that application of this rule to a

situation where the prior refusal was for a different offense

would be a new rule.

Sawyer v. Smith, supra, 497 U. §., at 235-236, held that

application of such general principles as reliability in sentencing

to forbid a specific type of prosecutor argument would be a new

rule. Sawyer also held that taking a nonconstitutional rule of

evidence or procedure and raising it to constitutional status

would be a new rule. 497 U. S., at 239.

Godfrey v. Georgia, 446 U. S. 420, 428-429 (1980) held that

an aggravating circumstance of “outrageously or wantonly vile,

horrible and inhuman” was too vague to properly narrow

application of the death penalty. Stringer v. Black, 503 U. S.

222, 228-229 (1992) held (and the state conceded) that applica-

tion of this rule to a circumstance of “especially heinous,

atrocious, or cruel” was not a new rule.

22

Stringer also held that application of this rule to states which

follow the Florida model, limiting aggravating circumstances in

the final “weighing” stage to those listed in the statute, was not

a new rule. Invalid aggravators cause the defendant more harm

in such states than in those such as Georgia, where the final stage

is wide open.’

Stringer also held that it was not a new rule to classify

Mississippi's system with the Florida model, rather than with

Louisiana, in which the second tier of narrowing is constitution-

ally redundant. 503 U. S., at 233. This holding was based on

Mississippi Supreme Court decisions, id., at 234, on the premise

that the federalism concerns underlying Teague do not apply

when the highest court of the state has already accepted the

argument in question. /d., at 235.

Gilmore v. Taylor, 124 L. Ed. 2d 306, 319, 113 S. Ct.

2112, 2118 (1993) refused to create, on habeas, a constitutional

rule against jury instructions that, at most “created a risk that the

jury would fail to consider evidence that related to an affirmative

defense .. . .” General phrases in one case involving a claim of

Lockett error and another involving harmless error analysis of

“new rule” bar. /d., at 318, 113 S. Ct., at 2118.

Bullington v. Missouri, 451 U. S. 430 (1981) held that the

Double Jeopardy Clause extends to capital sentencing proceed-

ings, giving as rationales both the trial-like nature of the

proceedings, id., at 438, and the unique considerations of capital

sentencing. /d., at 441-442, n. 15. A fair reading of the

opinion, though, shows that the trial-like nature was the predom-

inant rationale. Even so, Caspariv. Bohlen, 127 L. Ed. 2d 236,

247-248, 114 S. Ct. 948, 955 (1994) held that extension of

Bullington to noncapital sentencing, however trial-like, would be

a new rule. This holding was based as much on subsequent

cases’ treatment of Bullington as it was on Bullington itself.

9. Stringer and other cases refer to the two types as “weighing” and

“nonweighing” states. This terminology may be ripe for reconsidera-

tion. See Flamer v. Delaware, 68 F. 34 736, 748 (CA3 1995) (“quite

misleading”); id.. at 766-767 (Lewis, J., dissenting).

23

Finally, Goeke v. Branch, 131 L. Ed. 2d 152, 115 S. Ct.

1275 (1995) (per curiam) illustrates the depth of misunderstand-

ing of Teague, or perhaps stubborn resistance to it, remaining in

some Courts of Appeals. Branch was a fugitive whose appeal

was dismissed. A precedent of this Court held that such

dismissals were not a constitutional violation. Allen v. Georgia,

166 U. S. 138, 140 (1897). Based only on a nonconstitutional

federal case under this Court’s supervisory power and on a right-

to-counsel case forbidding dismissal for counsel’s unprofessional

errors, the Eighth Circuit held that forbidding fugitive dismissals

would not be a new rule. Branch, 131 L. Ed. 2d, at 158, 115

S. Ct., at 1277. This Court summarily, unanimously reversed.

Based on the facts and results of these cases, a few observa-

tions about new rules can be made. Amicus offers these not as

changes to the verbal formulation of Teague, but as somewhat

more concrete guides regarding how this Court has actually

applied those formulations.

Precedent on Point. If an unreversed precedent of this Court

Says practice X is constitutional, then a rule that practice X is

unconstitutional is new. See Parks, supra, 494 U. S., at 488;

see also Branch, 131 L. Ed. 2d, at 159, 115 S. Ct., at 1278.

Even before Teague, the lower federal courts had no authority to

declare an old Supreme Court precedent superseded. Thurston

Motor Lines, Inc. v. Jordan K. Rand, Lid., 460 U. S. 533, 535

(1983) (per curiam).

Prior Nonconstitutional Rule. Where the rule in question has

been in effect but has always been understood to be nonconstitu-

tional, the elevation of that rule to constitutional status is new.

See Sawyer, supra, 497 U.S., at 238-239; Branch, 131

L. Ed. 2d, at 158, 115 S. Ct., at 1277.

Longitudinal Extension. This is the most common type of

new rule. A rule is new if it extends an existing rule to a

situation where the impact on the defendant is similar in kind but

less in degree. Similarly, where the new application is a step

further removed from the core constitutional right, that is a new

rule. Lockett and Penry both suffered the same injury in the

same degree. Their juries were allowed to consider some

mitigating circumstances, but were forbidden to consider af all

the most compelling circumstance in the case. Graham, by

24

contrast, was less handicapped in arguing his case. His jury

could consider his mitigating circumstances, but not in every

way he wished. Graham v. Collins, supra, 122 L. Ed. 2d, at

275, 113 S. Ct., at 902.

Application of the Godfrey rule to the “especially heinous”

circumstance, see Stringer, supra, is not an extension. “Hei-

nous” is not less vague than “vile,” and “especially” is no better

at narrowing than “outrageously.” Application of that rule to

Florida-type systems is a movement in the opposite direction,

since the impact of vague aggravations is greater there.

Butler is an example of a rule being extended further from

the core constitutional right. Miranda v. Arizona, 384 U. S. 436

(1966) created a protective buffer zone around the privilege

against self-incrimination. Edwards v. Arizona, supra, similarly

created a buffer to protect incarcerated suspects from being

badgered into waiving Miranda. That danger is further reduced

when the police request a waiver for the first time for a different

crime. Arizona v. Roberson, 486 U.S. 675, 690 (1988)

(Kennedy, J., dissenting). Thus the Roberson rule broke new

ground, even further away from the core of the Fifth Amend-

ment.

It does not matter, for this purpose, if the extension of the

existing rule is “only a ‘short step."” Bohlen, supra, 127

L. Ed. 2d, at 250, 114 S. Ct., at 957. So long as it is an

extension further from the constitutional core or to a lesser

interest of the defendant, it is a “new rule.”

extension is an attempt to branch off in a new direction, not

necessarily further from the core right, but different in kind from

the existing rule. Parks wanted his jury to consider sympathy

for him in its deliberations. Sympathy may be a more powerful

argument for the defendant than some of the more extreme

ications of Lockett, see, e.g., Boyde v. California, 494 U. S.

370, 382, n. 5 (1990) (prison choreography award as “mitigat-

ing”), but it is different in kind from what Lockett requires, so

it would have been a new rule. Parks, supra, 494 U. S., at 490.

Specific from General. In the cases finding applications of

old rules, rather than creation of new ones, the old rule invari-

ably addressed a specific practice. Penry was merely an

25

application of Lockett, addressing the specific issue of instructing

juries on mitigating circumstances in capital cases. Stringer was

an application of Godfrey, regarding the specificity required for

a death-eligibility circumstance.

In contrast, the sculpting of a specific rule of procedure out

of a block of general principle has invariably been considered a

new rule. The rule forbidding prosecutor arguments misleading

the jury about appeals, though based on the need for reliable

sentencing, was nonetheless new. Sawyer, supra, 497 U. S., at

235-236.

The same is true of the proposed rule with regard to jury

instructions in Gilmore v. Taylor, 124 L. Ed. 2d, at 319, 113

S. Ct., at2118, even though based on due process grounds. The

requirement of proof beyond a reasonable doubt “has spawned

a number of corollary rules... .” /d., at 323, 113 S. Ct., at

2122 (O’Connor, J., concurring in the judgment). Yet the rule

Taylor sought was not one of those corollaries. His rule would

have required a new, specific rule derived from the broad

principle. That would be a new rule.

In Goeke v. Branch, supra, 131 L. Ed. 2d, at 157-158, 115

S. Ct., at 1277, it was error to strike down a state’s fugitive

dismissal rule without specific constitutional precedent dealing

with that particular aspect of criminal procedure, merely because

the Court of Appeals felt that the rule was “arbitrary” and

“oppressive.” That would have been a new rule.

Mixed Questions. A different situation is presented by those

rules which will always depend on the specific facts of the

individual case. The application of Jackson v. Virginia, 443

U.S. 307 (1979), for example, will always present a mixed

question, and its resolution will always require a detailed factual

discussion. See Wright v. West, 50S U. S. 277, 308-309 (1992)

(Kennedy, J., concurring in the judgment). There is only one

Jackson rule, that the evidence must be sufficient that a reason-

able fact-finder could convict, but it must be applied anew to

each case.'° “Custody” for the Miranda rule, see Thompson v.

10. An attempt to define a category of evidence and create a specialized rule

for that category would, however, be a new rule. See id., at 315

(Souter, J., concurring in the judgment).

26

Keohane, 133 L. Ed. 2d 383, 394, 116 S. Ct. 457, 465 (1995),

“materiality” for the Brady rule, see Kyles v. Whitley, 131

L. Ed. 2d 490, 508, 115 S. Ct. 1555, 1567 (1995), and “preju-

dice” for ineffective assistance, see Strickland v. Washington,

466 U. S. 668, 693 (1984), are other examples of case-by-case,

“look at all the circumstances” rules. Each of these rules deals

with a specific aspect of criminal procedure and sets a standard

for application. None of them is the kind of general principle

petitioner seeks to invoke in this case.

Comparing the present case with the earlier case, it is clear

petitioner seeks to create a new rule. He cannot cite an existing

rule which is anywhere near as specific as the Lockett rule cited

by Penry or the Godfrey rule cited by Stringer. Mooney v.

Holohan, 294 U. S. 103, 110 (1935) involved an allegation of

fraud on the court and the defendant vastly greater in magnitude

than anything the prosecutor is accused of here. Lankford v.

Idaho, 500 U. S. 110 (1991) (decided long after Gray’s sentence

became final) involved a surprise as to the entire penalty phase,

not mere items of evidence in it.

The notion that the prosecutor’s failure to disclose each item

of evidence he intends to put on in the penalty phase, even if

intentional, must be remedied by exclusion of the evidence, and

not by any lesser sanction, would surely be a new constitutional

rule. So, too, would a rule that if continuance is the remedy it

must be ordered sua sponte. Petitioner’s contention is a proposal

for a new rule under Teague.

B. Turner v. Williams.

The concurring judge in the present case based his rejection

of the Teague argument on Turner v. Williams, 35 F. 3d 872

(CA4 1994), cert. denied, 131 L. Ed. 2d 216 (1995). Because

that case is a prime example of misunderstanding Teague, it is

appropriate to take a closer look.

Turner’s claim was an attack on the Virginia “vileness”

factor, which on its face is the same as the one struck down in

Godfrey v. Georgia, 446 U.S. 420, 428 (1980). Turner, 35

27

F. 3d, at 880 and n.7.'' Godfrey differed from Turner,

though, in that Turner’s jury received limiting definitions of the

vague terms of the bare instruction, while Godfrey’s jury did

not. /d., at 880, 891-892.

The Turner majority states at one point “we are satisfied that

a State court in 1988 would have felt compelled to conclude that

Godfrey and Cartwright dictate the rule or result Turner seeks,”

id., at 882 (emphasis added), but ten pages later finds Turner’s

claim to be without merit. See id., at 892. This is a contradic-

tion.

Surely “reasonable minds,” see Butler v. McKellar, supra,

494 U. S., at 415, can always reach the correct result. A correct

application of precedent cannot be “an illogical or even a

grudging application.” See ibid. Certainly a correct interpreta-

tion is also a “reasonable interpretation.” See Caspari v.

Bohlen, supra, 127 L. Ed. 2d, at 249, 114 S. Ct., at 956. Ona

question of pure law, as opposed to a mixed question of law and

fact, a wrong rule is per se a new rule.

The Turner majority thought the dissent “overlooks the

significance of Wright v. West,” 35 F. 3d, at 886, n. 14, but

West has little significance as precedent. As a case with no

majority opinion, the holding of West is that of the opinion

concurring on the “narrowest grounds,” Marks v. United

States, 430 U. S. 188, 193 (1977) (internal quotations omitted),

which is simply that the facts of the case pass the Jackson

standard. See West, supra, 505 U.S., at 297 (White, J.,

concurring in the judgment). West simply establishes no

precedent on the Teague question. The several opinions in the

case have value as explanation, but not precedent.

The rule existing before and after West is that a mixed

question of law and fact is renewed de novo on habeas corpus.

Miller v. Fenton, 474 U.S. 104, 112 (1985); Thompson v.

Keohane, 133 L. Ed. 2d 383, 394, 116 S. Ct. 457, 465 (1995).

The relationship between this rule and Teague is explained in

Justice Kennedy’s concurring opinion in West. “If the rule in

question is one which of necessity requires a case-by-case

11. Gray attacked the same factor in question 3 in his certiorari petition in

the present case, but this Court has declined to hear it.

28

examination of the evidence, then we can tolerate a number of

specific applications without saying that those applications

themselves create a new rule.” 505 U. S., at 308 (emphasis

added).

The Turner majority quotes this statement but fails to

understand it. A facial attack on a statute or a standard jury

instruction, such as the one in Turner, does not require case-by-

case evaluation of the evidence. Hence it does not fall into the

same category as the rule of Jackson v. Virginia.

The Turner majority said that Turner “seeks the benefit of a

rule that a vague aggravating factor must be supplemented with

constitutionally sufficient limiting instructions or appellate

review.” 35 F. 3d, at 880. That is too broad a definition of the

“rule.” When jury instructions are attacked as unconstitutional

in all or most cases, not just on the peculiarities of an unusual

case,'? and the state asserts Teague, “[t}he question is whether

reasonable jurists could disagree over whether the particular —

erroneous instruction at issue here . . . violated the Constitu-

tion.” Gilmore v. Taylor, 124 L. Ed. 2d. 306, 323, 113 S. Ct.

2112, 2121-2122 (1993) (O’Connor, J., concurring in the

judgment) (emphasis added);"* see also id., at 320, n. 3, 113

S. Ct., at 2119, n. 3 (plurality) (long-established standard

instruction is “strong evidence of the reasonableness of the

interpretation”).

The Turner majority also relied on Penry v. Lynaugh, 492

U. S. 302 (1989), which it said was a novel specific holding even

though not “new” for Teague. See 35 F. 3d, at 884. That is

how the Penry dissent sees the holding, 492 U. S., at 352-353

(opinion of Scalia, J.), and if the dissent were correct Penry

would be wrongly decided. The majority, however, sees itself

as merely enforcing a reservation expressly made in the original

opinion upholding the Texas death penalty law, “that the special

issues would be interpreted broadly enough to enable sentencing

juries to consider all of the relevant imitigating evidence a

12. See Graham v. Collins, 122 L. Ed. 2d 260, 274 and n. 3, 113 S. Ct.

892, 901 and n. 3 (1993) (distinguishing Penry).

13. The word “erroneous” in this passage refers to an error of state law.

29

defendant might present.” /d., at 318. The rule having been

established with that specific reservation, the enforcement of that

reservation in a particular case was not a new rule.

While the Fourth Circuit in Turner was correct that Teague

did not alter the standard of review on habeas, 35 F. 3d, at 886,

the rule we now call Teague was intended from the beginning to

alter the scope of claims cognizable on habeas corpus. See

Mackey v. United States, 401 U. S. 667, 684 (1969) (opinion of

Harlan, J.). The magnitude of this restriction was increased

when this Court adopted a variation on Justice Harlan’s theme

which both broadened the definition of “new,” see Teague, 489

U. S., at 301, and narrowed the second exception. See id., at

312-313; see also id., at 330-331 (Brennan, J., dissenting)

(departure of Teague from original Harlan proposal).

This change in the scope of habeas also changed substantially

the role of the lower federal courts. They had previously been

mini Supreme Courts, with the power to invent new rules and

impose them de facto on the state courts, even though they had

no legal authority to bind state courts under stare decisis. See

Lockhart v. Fretwell, 122 L. Ed. 2d 180, 193, 113 S. Ct. 838,

846 (1993) (Thomas, J., concurring). This power was often

abused; some of the decisions were blatant evasions of this

Court’s precedents. Compare Adamson v. Ricketts, 865 F. 2d

1011, 1023-1029 (CA9 1988) (jury required in Arizona capital

sentencing), with Walton v. Arizona, 497 U. S. 639, 647-648

(1990) (issue settled years earlier).

After Teague, the habeas function is limited to enforcing this

Court’s existing precedents and not making new rules. This is

a less powerful and less personally rewarding task. Breaking

new ground is the exciting part of appellate law, yet that is

precisely what Teague forbids. See 489 U. S., at 301. Resis-

tance to this change in decisions such as Turner should not be

surprising, but it should be disapproved.

C. The Present Case.

Application of the foregoing Teague principles to the present

case is straightforward. Petitioner’s proposed rule falls within

the category of a specific rule sought to be derived from a very

broad, general principle. Sawyer, Taylor, and Branch, rejected

30

such claims. See supra, at 25. To the extent that his claim

could be said to flow from Gardner v. Florida, he seeks to

extend that case both farther from its core and to an entirely

different kind of harm. Insufficient notice of evidence presented

in open court is both vastly less harmful than Star Chamber

secrecy and qualitatively different from it. No precedent of the

type of Jackson, Strickland, Miranda, or Brady, setting a

standard for a specific aspect of procedure but necessarily

applied case-by-case, applies to this claim. Constitutionalization

of existing nonconstitutional rules regarding discovery sanctions

would be a new rule under Sawyer, Taylor, and Branch.

The sandbagging claim is Teague-barred, and it follows that

the broader insufficient notice rule would be as well

IV. Gray’s proposed rule does not come close “to the

primacy and centrality of Gideon.”

Little need be said on Gray’s claim to the second Jeague

exception. Gray was provided at state expense with two

lawyers, not just one, and he does not challenge their effective

ness. He concedes he had no constitutional right to discovery

He does not deny that he failed tc request a lesser remedy than

exclusion for the discovery violation. Any rule that would cover

this situation is so far below the standard of Saffle v. Parks, 494

ry

U. S. 484, 495 (1990) as to not require discussion

CONCLUSION

The decision of the Court of Appeals for the Fourth Circuit

‘;

should be affirmed

March LY¥o

Respectfully submitted

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation