Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES

          Syllabus

KEENEY, SUPERINTENDENT, OREGON STATE PENI-
TENTIARY v. TAMAYO-REYES
certiorari to the united states court of ap-
peals for the ninth circuit

No. 90-1859.   Argued January 15, 1992"Decided
         May 4, 1992

In collateral state-court proceedings, respon-
dent, a Cuban immigrant with little education
and almost no knowledge of English, alleged,
inter alia, that his plea of nolo contendere to
first-degree manslaughter had not been knowing
and intelligent and therefore was invalid be-
cause his court-appointed translator had not
translated accurately and completely for him
the mens rea element of the crime in question.
The state court dismissed the petition after a
hearing, the Oregon Court of Appeals affirmed,
the State Supreme Court denied review, and the
Federal District Court denied respondent habe-
as corpus relief.  However, the Court of Ap-
peals held that he was entitled to a federal
evidentiary hearing on the question whether the
mens rea element of the crime was properly ex-
plained to him, since the record disclosed that
the material facts concerning the translation
were not adequately developed at the state-
court hearing, see Townsend v. Sain, 372 U.S.
293, 313, and since postconviction counsel's
negligent failure to develop those facts did not
constitute a deliberate bypass of the orderly
procedure of the state courts, see id., at 317;
Fay v. Noia, 372 U.S. 391, 438.
Held:A cause-and-prejudice standard, rather
than Fay's deliberate bypass standard, is the
correct standard for excusing a habeas petiti-
oner's failure to develop a material fact in
state-court proceedings.  Townsend's holding
that the Fay standard is applicable in a case
like this must be overruled in light of more
recent decisions involving, like Fay, a state
procedural default, in which this Court has
rejected the deliberate bypass standard in
favor of a standard of cause and prejudice.
See, e. g., Wainwright v. Sykes, 433 U.S. 72,
87-88, and n. 12; Coleman v. Thompson, 501 U.S.
___, ___.  It would be irrational to distinguish
between failing to properly assert a federal
claim in state court and failing in state court
to properly develop such a claim, and to apply
to the latter a remnant of a decision that is no
longer upheld with regard to the former.  More-
over, the concerns of finality, comity, judicial
economy, and channeling the resolution of
claims into the most appropriate forum that
motivated the rejection of the Fay standard in
the state procedural default cases are equally
applicable to this case.  Finally, applying the
cause-and-prejudice standard here also ad-
vances uniformity in habeas corpus law.  Thus,
respondent is entitled to a federal evidentiary
hearing if he can show cause for his failure to
develop the facts in the state-court proceed-
ings and actual prejudice resulting from that
failure, or if he can show that a fundamental
miscarriage of justice would result from failure
to hold such a hearing.  See, e. g., McCleskey v.
Zant, 499 U.S. ___, ___.  Pp.3-10.
926 F.2d 1492, reversed and remanded.

White, J., delivered the opinion of the Court, in
which Rehnquist, C. J., and Scalia, Souter, and
Thomas, JJ., joined.  O'Connor, J., filed a dissent-
ing opinion, in which Blackmun, Stevens, and Ken-
nedy, JJ., joined.  Kennedy, J., filed a dissenting
opinion.

Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
         No. 90-1859
 
J. C. KEENEY, SUPERINTENDENT, OREGON STATE
   PENITENTIARY, PETITIONER v. JOSE
             TAMAYO-REYES
on writ of certiorari to the united states
court of appeals for the ninth circuit
             [May 4, 1992]

Justice White delivered the opinion of the
Court.
Respondent is a Cuban immigrant with little
education and almost no knowledge of English.  In
1984, he was charged with murder arising from the
stabbing death of a man who had allegedly at-
tempted to intervene in a confrontation between
respondent and his girlfriend in a bar.
Respondent was provided with a defense attor-
ney and interpreter.  The attorney recommended
to respondent that he plead nolo contendere to
first-degree manslaughter. Ore. Rev. Stat. 163.1-
18(1)(a) (1987).  Respondent signed a plea form that
explained in English the rights he was waiving by
entering the plea.  The state court held a plea
hearing, at which petitioner was represented by
counsel and his interpreter.  The judge asked the
attorney and interpreter if they had explained to
respondent the rights in the plea form and the
consequences of his plea; they responded in the
affirmative.  The judge then explained to respon-
dent, in English, the rights he would waive by his
plea, and asked the interpreter to translate.
Respondent indicated that he understood his
rights and still wished to plead nolo contendere.
The judge accepted his plea.
Later, respondent brought a collateral attack
on the plea in a state-court proceeding.  He
alleged his plea had not been knowing and intelli-
gent and therefore was invalidbecause his translator
had not translated accurately and completely for him
the mens are elementof manslaughter.  He also contended that he did
not understand the purposes of the plea form or
the plea hearing.  He contended that he did not
know he was pleading no contest to manslaughter,
but rather that he thought he was agreeing to be
tried for manslaughter.
After a hearing, the state court dismissed
respondent's petition, finding that respondent
was properly served by his trial interpreter and
that the interpreter correctly, fully, and accu-
rately translated the communications between
respondent and his attorney.  App. 51.  The State
Court of Appeals affirmed, and the State Supreme
Court denied review.
Respondent then entered Federal District Court
seeking a writ of habeas corpus.  Respondent
contended that the material facts concerning the
translation were not adequately developed at the
state-court hearing, implicating the fifth circum-
stance of Townsend v. Sain, 372 U.S. 293, 313
(1963), and sought a federal evidentiary hearing
on whether his nolo contendere plea was unconsti-
tutional.  The District Court found that the
failure to develop the critical facts relevant to
his federal claim was attributable to inexcusable
neglect and that no evidentiary hearing was
required.  App. to Pet. for Cert. 37, 38.  Respon-
dent appealed.
The Court of Appeals for the Ninth Circuit
recognized that the alleged failure to translate
the mens rea element of first-degree manslaugh-
ter, if proved, would be a basis for overturning
respondent's plea, 926 F.2d. 1492, 1494 (1991), and
determined that material facts had not been
adequately developed in the state postconviction
court, id., at 1500, apparently due to the negli-
gence of postconviction counsel.  The court held
that Townsend v. Sain, supra, at 317, and Fay v.
Noia, 372 U.S. 391, 438 (1963), required an eviden-
tiary hearing in the District Court unless re-
spondent had deliberately bypassed the orderly
procedure of the state courts.  Because counsel's
negligent failure to develop the facts did not
constitute a deliberate bypass, the Court of
Appeals ruled that respondent was entitled to an
evidentiary hearing on the question whether the
mens rea element of first-degree manslaughter was
properly explained to him. 926 F.2d, at 1502.
We granted certiorari to decide whether the
deliberate by-pass standard is the correct
standard for excusing a habeas petitioner's
failure to develop a material fact in state-court
proceedings. 502 U.S. ___ (1991).  We reverse.
Because the holding of Townsend v. Sain that Fay
v. Noia's deliberate bypass standard is applicable
in a case like this had not been reversed, it is
quite understandable that the Court of Appeals
applied that standard in this case.  However, in
light of more recent decisions of this Court,
Townsend's holding in this respect must be over-
ruled.  Fay v. Noia was itself a case where the
habeas petitioner had not taken advantage of
state remedies by failing to appeal"a procedural
default case.  Since that time, however, this
Court has rejected the deliberate bypass stan-
dard in state procedural default cases and has
applied instead a standard of cause and prejudice.
In Francis v. Henderson, 425 U.S. 536 (1976), we
acknowledged a federal court's power to entertain
an application for habeas even where the claim
has been procedurally waived in state proceed-
ings, but nonetheless examined the appropriate-
ness of the exercise of that power and recog-
nized, as we had in Fay, that considerations of
comity and concerns for the orderly administra-
tion of criminal justice may in some circumstances
require a federal court to forgo the exercise of
its habeas corpus power.  425 U.S., at 538-539.  We
held that a federal habeas petitioner is required
to show cause for his procedural default, as well
as actual prejudice.  Id., at 542.
In Wainwright v. Sykes, 433 U.S. 72 (1977), we
rejected the application of Fay's standard of
``knowing waiver'' or ``deliberate bypass'' to excuse
a petitioner's failure to comply with a state
contemporaneous-objection rule, stating that the
state rule deserved more respect than the Fay
standard accorded it.  433 U.S., at 88.  We ob-
served that procedural rules that contribute to
error-free state trial proceedings are thorough-
ly desirable.  We applied a cause-and-prejudice
standard to a petitioner's failure to object at
trial and limited Fay to its facts.  Wainwright,
supra, at 87-88, and n.12.  We have consistently
reaffirmed that the ``cause and prejudice'' stan-
dard embodies the correct accommodation between
the competing concerns implicated in a federal
court's habeas power. Reed v. Ross, 468 U.S. 1, 11
(1984); Engle v. Isaac, 456 U.S. 107, 129 (1982).
In McCleskey v. Zant, 499 U.S."" (1991), we held
that the same standard used to excuse state
procedural defaults should be applied in habeas
corpus cases where abuse of the writ is claimed
by the government.  Id., at "" (slip op. 21).  This
conclusion rested on the fact that the two doc-
trines are similar in purpose and design and
implicate similar concerns.  Id., at "" (slip op.
21-22).  The writ strikes at finality of a state
criminal conviction, a matter of particular impor-
tance in a federal system.  Id., at "" - "", (slip op.
22), citing Murray v. Carrier, 477 U.S. 478, 487
(1986).  Federal habeas litigation also places a
heavy burden on scarce judicial resources, may
give litigants incentives to withhold claims for
manipulative purposes, and may create disincen-
tives to present claims when evidence is fresh.
499 U.S., at "" (slip op. 22-23).  See also Reed v.
Ross, supra, at 13; Wainwright, supra, at 89.
Again addressing the issue of state procedural
default in Coleman v. Thompson, 501 U.S. "" (1991),
we described Fay as based on a conception of
federal/state relations that undervalued the
importance of state procedural rules, Id., at ""
(slip op. 25), and went on to hold that the cause-
and-prejudice standard applicable to failure to
raise a particular claim should apply as well to
failure to appeal at all.  Ibid.  ``All of the State's
interests"in channeling the resolution of claims
to the most appropriate forum, in finality, and in
having an opportunity to correct its own er-
rors"are implicated whether a prisoner defaults
one claim or all of them.''  Id., at "" (slip op. 25).
We therefore applied the cause and prejudice
standard uniformly to state procedural defaults,
eliminating the ``irrational'' distinction between
Fay and subsequent cases.  Ibid.  In light of these
decisions, it is similarly irrational to distinguish
between failing to properly assert a federal claim
in state court and failing in state court to
properly develop such a claim, and to apply to the
latter a remnant of a decision that is no longer
upheld with regard to the former.
The concerns that motivated the rejection of
the deliberate bypass standard in Wainwright,
Coleman, and other cases are equally applicable to
this case.  As in cases of state procedural
default, application of the cause-and-prejudice
standard to excuse a state prisoner's failure to
develop material facts in state court will appro-
priately accommodate concerns of finality, comity,
judicial economy, and channeling the resolution of
claims into the most appropriate forum.
Applying the cause-and-prejudice standard in
cases like this will obviously contribute to the
finality of convictions, for requiring a federal
evidentiary hearing solely on the basis of a
habeas petitioner's negligent failure to develop
facts in state-court proceedings dramatically
increases the opportunities to relitigate a
conviction.
Similarly, encouraging the full factual develop-
ment in state court of a claim that state courts
committed constitutional error advances comity
by allowing a coordinate jurisdiction to correct
its own errors in the first instance.  It reduces
the ``inevitable friction'' that results when a
federal habeas court ``overturn[s] either the
factual or legal conclusions reached by the
state-court system.''  Sumner v. Mata, 449 U.S.
539, 550 (1981).
Also, by ensuring that full factual development
takes place in the earlier, state-court proceed-
ings, the cause-and-prejudice standard plainly
serves the interest of judicial economy.  It is
hardly a good use of scarce judicial resources to
duplicate factfinding in federal court merely
because a petitioner has negligently failed to
take advantage of opportunities in state-court
proceedings.
Furthermore, ensuring that full factual devel-
opment of a claim takes place in state court
channels the resolution of the claim to the most
appropriate forum.  The state court is the appro-
priate forum for resolution of factual issues in
the first instance, and creating incentives for
the deferral of factfinding to later federal-court
proceedings can only degrade the accuracy and
efficiency of judicial proceedings.  This is fully
consistent with and gives meaning to the require-
ment of exhaustion.  The Court has long held that
state prisoners must exhaust state remedies
before obtaining federal habeas relief.  Ex Parte
Royall, 117 U.S. 241 (1886).  The requirement that
state prisoners exhaust state remedies before a
writ of habeas corpus is granted by a federal
court is now incorporated in the federal habeas
statute.  28 U.S.C. 2254.  Exhaustion means
more than notice.  In requiring exhaustion of a
federal claim in state court, Congress surely
meant that exhaustion be serious and meaningful.
The purpose of exhaustion is not to create a
procedural hurdle on the path to federal habeas
court, but to channel claims into an appropriate
forum, where meritorious claims may be vindicated
and unfounded litigation obviated before resort
to federal court. Comity concerns dictate that
the requirement of exhaustion is not satisfied by
the mere statement of a federal claim in state
court.  Just as the State must afford the peti-
tioner a full and fair hearing on his federal claim,
so must the petitioner afford the State a full and
fair opportunity to address and resolve the claim
on the merits.  Cf. Picard v. Connor, 404 U.S. 270,
275 (1971).
Finally, it is worth noting that applying the
cause-and-prejudice standard in this case also
advances uniformity in the law of habeas corpus.
There is no good reason to maintain in one area of
habeas law a standard that has been rejected in
the area in which it was principally enunciated.
And little can be said for holding a habeas peti-
tioner to one standard for failing to bring a claim
in state court and excusing the petitioner under
another, lower standard for failing to develop the
factual basis of that claim in the same forum.  A
different rule could mean that a habeas petition-
er would not be excused for negligent failure to
object to the introduction of the prosecution's
evidence, but nonetheless would be excused for
negligent failure to introduce any evidence of his
own to support a constitutional claim.
Respondent Tamayo-Reyes is entitled to an
evidentiary hearing if he can show cause for his
failure to develop the facts in state-court
proceedings and actual prejudice resulting from
that failure.  We also adopt the narrow exception
to the cause-and-prejudice requirement:  A
habeas petitioner's failure to develop a claim in
state-court proceedings will be excused and a
hearing mandated if he can show that a fundamen-
tal miscarriage of justice would result from
failure to hold a federal evidentiary hearing.  Cf.
McCleskey v. Zant, 499 U.S., at "" (slip op. 25);
Murray v. Carrier, 477 U.S., at 496.
The State concedes that a remand to the Dis-
trict Court is appropriate in order to afford
respondent the opportunity to bring forward
evidence establishing cause and prejudice, Brief
for Petitioner 21, and we agree that the respon-
dent should have that opportunity.  Accordingly,
the decision of the Court of Appeals is reversed,
and the cause is remanded to the District Court
for further proceedings consistent with this
opinion.

                             So ordered.

Dissent 1

SUPREME COURT OF THE UNITED STATES
         No. 90-1859
 
J. C. KEENEY, SUPERINTENDENT, OREGON STATE
   PENITENTIARY, PETITIONER v. JOSE
             TAMAYO-REYES
on writ of certiorari to the united states
court of appeals for the ninth circuit
             [May 4, 1992]

Justice O'Connor, with whom Justice Blackmun,
Justice Stevens, and Justice Kennedy join,
dissenting.
Under the guise of overruling ``a remnant of a
decision,'' ante, at 5, and achieving ``uniformity in
the law,'' ante, at 7, the Court has changed the law
of habeas corpus in a fundamental way by effec-
tively overruling cases decided long before
Townsend v. Sain, 372 U. S. 293 (1963).  I do not
think this change is supported by the line of our
recent procedural default cases upon which the
Court relies:  In my view, the balance of state and
federal interests regarding whether a federal
court will consider a claim raised on habeas
cannot be simply lifted and transposed to the
different question whether, once the court will
consider the claim, it should hold an evidentiary
hearing.  Moreover, I do not think the Court's
decision can be reconciled with 28 U. S. C. 2254(-
d), a statute Congress enacted three years after
Townsend.
                   I
Jose Tamayo-Reyes' habeas petition stated that
because he does not speak English he pleaded nolo
contendere to manslaughter without any under-
standing of what ``manslaughter'' means.  App. 58.
If this assertion is true, his conviction was
unconstitutionally obtained, see Hendersonv. Morgan,
426 U. S. 637, 644-647 (1976), and Tamay-
o-Reyes would be entitled to a writ of habeas
corpus.  Despite the Court's attempt to charac-
terize his allegation as a technical quibble"``his
translator had not translated accurately and
completely for him the mens rea element of man-
slaughter,'' ante, at 2"this much is not in dispute.
Tamayo-Reyes has alleged a fact that, if true,
would entitle him to the relief he seeks.
Tamayo-Reyes initially, and properly, challenged
the voluntariness of his plea in a petition for
postconviction relief in state court.  The court
held a hearing, after which it found that ``[p]etiti-
oner's plea of guilty was knowingly and voluntarily
entered.''  App. 51.  Yet the record of the postcon-
viction hearing hardly inspires confidence in the
accuracy of this determination.  Tamayo-Reyes
was the only witness to testify, but his attorney
did not ask him whether his interpreter had trans-
lated ``manslaughter'' for him.  Counsel instead
introduced the deposition testimony of the inter-
preter, who admitted that he had translated ``man-
slaughter'' only as ``less than murder.''  Id., at 27.
No witnesses capable of assessing the interpret-
er's performance were called; the attorney in-
stead tried to direct the court's attention to
various sections of the interpreter's deposition
and attempted to point out where the interpreter
had erred.  When the prosecutor objected to this
discussion on the ground that counsel was not
qualified as an expert wit-ness, his ``presentation of the issue quickly
disintegrated.''  926 F. 2d 1492, 1499 (CA9 1991).
The state court had no other relevant evidence
before it when it determined that Tamayo-Reyes
actually understood the charge to which he was
pleading.
Contrary to the impression conveyed by this
Court's opinion, the question whether a federal
court should defer to this sort of dubious ``fact-
finding'' in addressing a habeas corpus petition is
one with a long history behind it, a history that
did not begin with Townsend v. Sain.

                  II
                   A
The availability and scope of habeas corpus
have changed over the writ's long history, but one
thing has remained constant:  Habeas corpus is
not an appellate proceeding, but rather an origi-
nal civil action in a federal court.  See, e. g.,
Browder v. Director, Illinois Dept. of Corrections,
434 U. S. 257, 269 (1978).  It was settled over a
hundred years ago that ``[t]he prosecution against
[a criminal defendant] is a criminal prosecution,
but the writ of habeas corpus . . . is not a pro-
ceeding in that prosecution.  On the contrary, it
is a new suit brought by him to enforce a civil
right.''  Ex parte Tom Tong, 108 U. S. 556, 559-560
(1883).  Any possible doubt about this point has
been removed by the statutory procedure Con-
gress has provided for the disposition of habeas
corpus petitions, a procedure including such
nonappellate functions as the allegation of facts,
28 U. S. C. 2242, the taking of depositions and
the propounding of interrogatories, 2246, the
introduction of documentary evidence, 2247, and,
of course, the determination of facts at eviden-
tiary hearings, 2254(d).
To be sure, habeas corpus has its own peculiar
set of hurdles a petitioner must clear before his
claim is properly presented to the district court.
The petitioner must, in general, exhaust available
state remedies, 2254(b), avoid procedural de-
fault, Coleman v. Thompson, 501 U. S. ___ (1991), not
abuse the writ, McCleskey v. Zant, 499 U. S. ___
(1991), and not seek retroactive application of a
new rule of law, Teague v. Lane, 489 U. S. 288 (1989).
For much of our history, the hurdles were even
higher.  See, e. g., Ex parte Watkins, 3 Pet. 193, 203
(1830) (habeas corpus available only to challenge
jurisdiction of trial court).  But once they have
been surmounted"once the claim is properly
before the district court"a habeas petitioner,
like any civil litigant, has had a right to a hearing
where one is necessary to prove the facts sup-
porting his claim.  See, e. g., Hawk v. Olson, 326
U. S. 271, 278-279 (1945); Holiday v. Johnston, 313
U. S. 342, 351-354 (1941); Walker v. Johnston, 312
U. S. 275, 285-287 (1941); Moore v. Dempsey, 261 U. S.
86, 92 (1923).  Thus when we observed in Townsend
v. Sain, supra, at 312, that ``the opportunity for
redress . . . presupposes the opportunity to be
heard, to argue and present evidence,'' we were
saying nothing new.  We were merely restating what
had long been our understanding of the method by
which contested factual issues raised on habeas
should be resolved.
Habeas corpus has always differed from ordinary
civil litigation, however, in one important re-
spect:  The doctrine of res judicata has never
been thought to apply.  See, e. g., Brown v. Allen,
344 U. S. 443, 458 (1953); Darr v. Burford, 339 U. S.
200, 214 (1950); Waley v. Johnston, 316 U. S. 101, 105
(1942); Salinger v. Loisel, 265 U. S. 224, 230 (1924).
A state prisoner is not precluded from raising a
federal claim on habeas that has already been
rejected by the state courts.  This is not to say
that state court factfinding is entitled to no
weight, or that every state prisoner has the
opportunity to relitigate facts found against him
by the state courts.  Concerns of federalism and
comity have pushed us from this extreme just as
the importance of the writ has repelled us from
the opposite extreme, represented by the strict
application of res judicata.  Instead, we have
consistently occupied the middle ground.  Even
before Townsend, federal courts deferred to
state court findings of fact where the federal
district judge was satisfied that the state court
had fairly considered the issues and the evidence
and had reached a satisfactory result.  See, e. g.,
Brown, supra, at 458, 465; Frank v. Mangum, 237 U. S.
309, 332-336 (1915).  But where such was not the
case, the federal court entertaining the habeas
petition would examine the facts anew.  See, e. g.,
Ex parte Hawk, 321 U. S. 114, 116, 118 (1944); Moore,
supra, at 92.  In Hawk, for example, we stated that
a state prisoner would be entitled to a hearing,
321 U. S., at 116, ``where resort to state court
remedies has failed to afford a full and fair
adjudication of the federal contentions raised
. . . because in the particular case the remedy
afforded by state law proves in practice unavail-
able or seriously inadequate.''  Id., at 118.  In
Brown, we explained that a hearing may be dis-
pensed with only ``[w]here the record of the
application affords an adequate opportunity to
weigh the sufficiency of the allegations and the
evidence, and no unusual circumstances calling
for a hearing are presented.''  344 U. S., at 463.
Townsend ``did not launch the Court in any new
directions,'' Weisselberg, Evidentiary Hearings in
Federal Habeas Corpus Cases, 1990 B. Y. U. L. Rev.
131, 150, but it clarified how the district court
should measure the adequacy of the state court
proceeding.  Townsend specified six circumstances
in which one could not be confident that ``the
state-court trier of fact has after a full hearing
reliably found the relevant facts.''  372 U. S., at
313.  The Court held that a habeas petitioner is
entitled to an evidentiary hearing on his factual
allegations if
``(1) the merits of the factual dispute were not
 resolved in the state hearing; (2) the state
 factual determination is not fairly supported
 by the record as a whole; (3) the fact-finding
 procedure employed by the state court was
 not adequate to afford a full and fair hearing;
 (4) there is a substantial allegation of newly
 discovered evidence; (5) the material facts
 were not adequately developed at the state-
court hearing; or (6) for any reason it appears
 that the state trier of fact did not afford the
 habeas applicant a full and fair fact hearing.''
 Ibid.
That these principles marked no significant
departure from our prior understanding of the
writ is evident from the view expressed by the
four dissenters, who had ``no quarrel with the
Court's statement of the basic governing principle
which should determine whether a hearing is to be
had in a federal habeas corpus proceeding,'' but
disagreed only with the Court's attempt ``to erect
detailed hearing standards for the myriad situa-
tions presented by federal habeas corpus appli-
cations.''  Id., at 326-327 (Stewart, J., dissenting).
Townsend thus did not alter the federal courts'
practice of holding an evidentiary hearing unless
the state court had fairly considered the rele-
vant evidence.
The Court expressed concern in Townsend that a
petitioner might abuse the fifth circumstance
described in the opinion, by deliberately withhold-
ing evidence from the state factfinder in the hope
of finding a more receptive forum in a federal
court.  Id., at 317.  To discourage this sort of
disrespect for state proceedings, the Court held
that such a petitioner would not be entitled to a
hearing.  Ibid.  The Townsend opinion did not need
to address this concern in much detail, because a
similar issue was discussed at greater length in
another case decided the same day, Fay v. Noia,
372 U. S. 391, 438-440 (1963).  The Townsend opinion
thus merely referred the reader to the discussion
in Fay, where a similar exception was held to bar
a state prisoner from habeas relief where the
prisoner had intentionally committed a procedural
default in state court.  See Townsend, supra, at
317.
Nearly 30 years later, the Court implies that
Fay and Townsend must stand or fall together.
Ante, at 3-5.  But this is not so:  The Townsend
Court did not suggest that the issues in Townsend
and Fay were identical, or that they were so
similar that logic required an identical answer to
each.  Townsend did not purport to rely on Fay as
authority; it merely referred to Fay's discussion
as a shorthand device to avoid repeating similar
analysis.  Indeed, reliance on Fay as authority
would have been unnecessary.  Townsend was
essentially an elaboration of our prior cases
regarding the holding of hearings in federal
habeas cases; Fay represented an overruling of
our prior cases regarding procedural defaults.
See Coleman v. Thompson, 501 U. S. ___, ___ (1991);
Wainwright v. Sykes, 433 U. S. 72, 82 (1977).
As the Court recognizes, ante, at 3, we have
applied Townsend's analysis ever since.  See, e. g.,
Vasquez v. Hillery, 474 U. S. 254, 258 (1986); Cuyler
v. Sullivan, 446 U. S. 335, 341-342 (1980); Jackson v.
Virginia, 443 U. S. 307, 318 (1979); LaVallee v. Delle
Rose, 410 U. S. 690, 693-694 (1973); Boyd v. Dutton,
405 U. S. 1, 3 (1972); Procunier v. Atchley, 400 U. S.
446, 451 (1971).  But we have not, in my view, been
unjustifiably clinging to a poorly reasoned prece-
dent.  While we properly abandoned Fay because it
was inconsistent with prior cases that repre-
sented a better-reasoned balance of state and
federal interests, the same cannot be said of
Townsend.
The Court today holds that even when the reli-
ability of state factfinding is doubtful because
crucial evidence was not presented to the state
trier of fact, a habeas petitioner is ordinarily
not entitled to an opportunity to prove the facts
necessary to his claim.  This holding, of course,
directly overrules a portion of Townsend, but
more than that, I think it departs significantly
from the pre-Townsend law of habeas corpus.  Even
before Townsend, when a habeas petitioner's claim
was properly before a federal court, and when the
accurate resolution of that claim depended on
proof of facts that had been resolved against the
petitioner in an unreliable state proceeding, the
petitioner was entitled to his day in federal
court.  As Justice Holmes wrote for the Court, in
a case where the state courts had rejected"under
somewhat suspicious circumstances"the petition-
er's allegation that his trial had been dominated
by an angry mob, ``it does not seem to us suffi-
cient to allow a Judge of the United States to
escape the duty of examining the facts for himself
when if true as alleged they make the trial abso-
lutely void.''  Moore, 261 U. S., at 92.  The class of
petitioners eligible to present claims on habeas
may have been narrower in days gone by, and the
class of claims one might present may have been
smaller, but once the claim was properly before
the court, the right to a hearing was not con-
strued as narrowly as the Court construes it
today.
                   B
Instead of looking to the history of the right to
an evidentiary hearing, the Court simply borrows
the cause and prejudice standard from a series of
our recent habeas corpus cases.  Ante, at 3-5.  All
but one of these cases address the question of
when a habeas claim is properly before a federal
court despite the petitioner's procedural default.
See Coleman v. Thompson, supra; Murray v. Carrier,
477 U. S. 478 (1986); Reed v. Ross, 468 U. S. 1 (1984);
Engle v. Isaac, 456 U. S. 107 (1982); Wainwright v.
Sykes, 433 U. S. 72 (1977); Francis v. Henderson, 425
U. S. 536 (1976).  The remaining case addresses the
issue of a petitioner's abuse of the writ.  See
McCleskey v. Zant, 499 U. S. ___ (1991).  These cases
all concern the question whether the federal
court will consider the merits of the claim, that
is, whether the court has the authority to upset
a judgment affirmed on direct appeal.  So far as
this threshold inquiry is concerned, our respect
for state procedural rules and the need to dis-
courage abuse of the writ provide the justifica-
tion for the cause and prejudice standard.  As we
have said in the former context, ``the Great Writ
imposes special costs on our federal system.  The
States possess primary authority for defining and
enforcing the criminal law.  In criminal trials they
also hold the initial responsibility for vindicat-
ing constitutional rights.  Federal intrusions into
state criminal trials frustrate both the States'
sovereign power to punish offenders and their
good-faith attempts to honor constitutional
rights.''  Engle, supra, at 128.
The question we are considering here is quite
different.  Here, the Federal District Court has
already determined that it will consider the
claimed constitutional violation; the only ques-
tion is how the court will go about it.  When it
comes to determining whether a hearing is to be
held to resolve a claim that is already properly
before a federal court, the federalism concerns
underlying our procedural default cases are
diminished somewhat.  By this point, our concern is
less with encroaching on the territory of the
state courts than it is with managing the territo-
ry of the federal courts in a manner that will best
implement their responsibility to consider habeas
petitions.  Our adoption of a cause and prejudice
standard to resolve the first concern should not
cause us reflexively to adopt the same standard
to resolve the second.  Federalism, comity, and
finality are all advanced by declining to permit
relitigation of claims in federal court in certain
circumstances; these interests are less signifi-
cantly advanced, once relitigation properly oc-
curs, by permitting district courts to resolve
claims based on an incomplete record.
                  III
The Court's decision today cannot be reconciled
with subsection (d) of 28 U. S. C. 2254, which
Congress enacted only three years after we
decided Townsend.  Subsection (d) provides that
state court factfinding ``shall be presumed to be
correct, unless the applicant shall establish'' one
of eight listed circumstances.  Most of these
circumstances are taken word for word from
Townsend, including the one at issue here; 2254(-
d)(3) renders the presumption of correctness
inapplicable where ``the material facts were not
adequately developed at the State court hearing.''
The effect of the presumption is to augment the
habeas petitioner's burden of proof.  Where state
factfinding is presumed correct, the petitioner
must establish the state court's error ``by con-
vincing evidence''; where state factfinding is not
presumed correct, the petitioner must prove the
facts necessary to support his claim by only a
preponderance of the evidence.  Sumner v. Mata,
449 U. S. 539, 551 (1981).
Section 2254(d) is not, in the strict sense, a
codification of our holding in Townsend.  The listed
circumstances in Townsend are those in which a
hearing must be held; the nearly identical listed
circumstances in 2254(d) are those in which facts
found by a state court are not presumed correct.
But the two are obviously intertwined.  If a
habeas petitioner fulfills one of the Townsend
requirements hewill be entitled to a hearing, and by virtue of
fulfilling a Townsend requirement he will neces-
sarily have also fulfilled one of the 2254(d)
requirements, so that at his hearing the presump-
tion of correctness will not apply.  On the other
hand, if the petitioner has not fulfilled one of the
Townsend requirements he will generally not have
fulfilled the corresponding 2254(d) requirement
either, so he will be entitled neither to a hearing
nor to an exception from the presumption of
correctness.  Townsend and 2254(d) work hand in
hand:  Where a petitioner has a right to a hearing
he must prove facts by a preponderance of the
evidence, but where he has no right to a hearing
he must prove facts by the higher standard of
convincing evidence.  Without the opportunity for
a hearing, it is safe to assume that this higher
standard will be unattainable for most petition-
ers.  See L. Yackle, Postconviction Remedies
508-509 (1981).
In enacting a statute that so closely parallels
Townsend, Congress established a procedural
framework that relies upon Townsend's continuing
validity.  In general, therefore, overruling Towns-
end would frustrate the evident intent of Con-
gress that the question of when a hearing is to be
held should be governed by the same standards as
the question of when a federal court should defer
to state court factfinding.  In particular, the
Court's adoption of a ``cause and prejudice''
standard for determining whether the material
facts were adequately developed in state pro-
ceedings will frustrate Congress' intent with
respect to that Townsend circumstance's statuto-
ry analog, 2254(d)(3).
For a case to fit within this Townsend circum-
stance but none of Townsend's other circumstanc-
es, the case will very likely be like this one,
where the material facts were not developed
because of attorney error.  Any other reason the
material facts might not have been developed,
such as that they were unknown at the time or
that the state denied a full and fair opportunity
to develop them, will almost certainly be covered
by one of Townsend's other circumstances.  See
Townsend, 372 U. S., at 313.  We have already held
that attorney error short of constitutionally
ineffective assistance of counsel does not
amount to ``cause.''  See Murray v. Carrier, supra,
at 488.  As a result, the practical effect of the
Court's ruling today will be that for a case to fall
within Townsend's fifth circumstance but no oth-
er"for a petitioner to be entitled to a hearing on
the ground that the material facts were not
adequately developed in state court but on no
other ground"the petitioner's attorney must have
rendered constitutionally ineffective assistance
in presenting facts to the state factfinder.
This effect is more than a little ironic.  Where
the state factfinding occurs at the trial itself,
counsel's ineffectiveness will not just entitle
the petitioner to a hearing"it will entitle the
petitioner to a new trial.  Where, as in this case,
the state factfinding occurs at a postconviction
proceeding, the petitioner has no constitutional
right to the effective assistance of counsel, so
counsel's poor performance can never constitute
``cause'' under the cause and prejudice standard.
Coleman v. Thompson, 501 U. S., at ___.  After
today's decision, the only petitioners entitled to
a hearing under Townsend's fifth circumstance are
the very people who do not need one, because they
will have already obtained a new trial or because
they will already be entitled to a hearing under
one of the other circumstances.  The Court has
thus rendered unusable the portion of Townsend
requiring hearings where the material facts were
not adequately developed in state court.
As noted above, the fact that 2254(d)(3) uses
language identical to the language we used in
Townsend strongly suggests that Congress pre-
sumed the continued existence of this portion of
Townsend.  Moreover, the Court's application of a
cause and prejudice standard creates a conundrum
regarding how to interpret 2254(d)(3).  If a cause
and prejudice standard applies to 2254(d)(3) as
well as Townsend's fifth circumstance, then the
Court has rendered 2254(d)(3) superfluous for
the same reason this part of Townsend has become
superfluous.  While we may deprive portions of our
own prior decisions of any effect, we generally
may not, of course, do the same with portions of
statutes.  On the other hand, if a cause and
prejudice standard does not apply to 2254(d)(3),
we will have uncoupled the statute from the case
it was intended to follow, and there will likely be
instances where a petitioner will be entitled to
an exception from the presumption of correctness
but will not be entitled to a hearing.  This result
does not accord with the evident intent of Con-
gress that the first inquiry track the second.
Reconciliation of these two questions is now left
to the district courts, who still possess the
discretion, which has not been removed by today's
opinion, to hold hearings even where they are not
mandatory.  See Townsend, supra, at 318.
For these reasons, I think 2254(d) presumes
the continuing validity of our decision in Townsen-
d, including the portion of the decision that
recognized a ``deliberate bypass'' exception to a
petitioner's right to a hearing where the material
facts were not adequately developed in the state
court.
Jose Tamayo-Reyes alleges that he pleaded nolo
contendere to a crime he did not understand.  He
has exhausted state remedies, has committed no
procedural default, has properly presented his
claim to a federal district court in his first
petition for a writ of habeas corpus, and would be
entitled to a hearing under the standard set
forth in Townsend.  Given that his claim is properly
before the district court, I would not cut off his
right to prove his claim at a hearing.  I respect-
fully dissent.

Dissent 2

 


SUPREME COURT OF THE UNITED STATES
         No. 90-1859
 
J. C. KEENEY, SUPERINTENDENT, OREGON STATE
   PENITENTIARY, PETITIONER v. JOSE
             TAMAYO-REYES
on writ of certiorari to the united states
court of appeals for the ninth circuit
             [May 4, 1992]

Justice Kennedy, dissenting.
By definition, the cases within the ambit of the
Court's holding are confined to those in which the
factual record developed in the state-court
proceedings is inadequate to resolve the legal
question.  I should think those cases will be few in
number.  Townsend v. Sain, 372 U. S. 293, 318 (1963),
has been the law for almost 30 years and there is
no clear evidence that this particular classifica-
tion of habeas proceedings has burdened the
dockets of the federal courts.  And in my view, the
concept of factual inadequacy comprehends only
those petitions with respect to which there is a
realistic possibility that an evidentiary hearing
will make a difference in the outcome.  This serves
to narrow the number of cases in a further re-
spect and to insure that they are the ones, as
Justice O'Connor points out, in which we have
valid concerns with constitutional error.
Our recent decisions in Coleman v. Thompson, 501
U. S. ___ (1991), McCleskey v. Zant, 499 U. S. ___
(1991), and Teague v. Lane, 489 U. S. 288 (1989),
serve to protect the integrity of the writ, curb-
ing its abuse and insuring that the legal ques-
tions presented are ones which, if resolved
against the State, can invalidate a final judgment.
So we consider today only those habeas actions
which present questions federal courts are bound
to decide in order toprotect constitutional rights.  We ought not to
take steps which diminish the likelihood that
those courts will base their legal decision on an
accurate assessment of the facts.  For these
reasons and all those set forth by Justice O'Con-
nor, I dissent from the opinion and judgment of the
Court.


m
