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No. 99-6615. Argued February 28, 2000-Decided April 18, 2000

Mter petitioner was convicted of two capital murders and other crimes, he was sentenced to death. The Supreme Court of Virginia affirmed on direct appeal and later dismissed petitioner's state habeas corpus petition. He then sought federal habeas relief, requesting, among other things, an evidentiary hearing on three constitutional claims, which he had been unable to develop in the state-court proceedings. Those claims were that (1) the prosecution had violated Brady v. Maryland, 373 U. S. 83, in failing to disclose a report of a pretrial psychiatric examination of Jeffrey Cruse, petitioner's accomplice and the Commonwealth's main witness against petitioner; (2) the trial was rendered unfair by the seating of a juror who at voir dire had not revealed possible sources of bias; and (3) a prosecutor committed misconduct in failing to reveal his knowledge of the juror's possible bias. The District Court granted an evidentiary hearing on, inter alia, the latter two claims, but denied a hearing on the Brady claim. Before any hearing could be held, however, the Fourth Circuit granted the Commonwealth's requests for an emergency stay and for a writ of mandamus and prohibition, which were based on the argument that an evidentiary hearing was prohibited by 28 U. S. C. §2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). On remand, the District Court vacated its order granting an evidentiary hearing and dismissed the petition, having determined petitioner could not satisfy § 2254(e)(2)'s requirements. In affirming, the Fourth Circuit agreed with petitioner's argument that the statute would not apply if he had exercised diligence in state court, but held, among other things, that he had not been diligent and so had "failed to develop the factual basis of [his three] claim[s] in State court," § 2254(e)(2). The court concluded that petitioner could not satisfy the statute's conditions for excusing his failure to develop the facts and held him barred from receiving an evidentiary hearing.

Held: Under §2254(e)(2), as amended by AEDPA, a "fail[ure] to develop" a claim's factual basis in state-court proceedings is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or his counsel. The statute does not bar the evidentiary hearing petitioner seeks on his juror bias and prosecutorial misconduct claims, but bars a hearing on his Brady claim because he "failed to


develop" that claim's factual basis in state court and concedes his inability to satisfy the statute's further stringent conditions for excusing the deficiency. Pp. 429-445.

(a) Petitioner filed his federal habeas petition after AEDPA's effective date, so his case is controlled by § 2254(e)(2)'s opening clause, which specifies that "[i]f the [federal habeas] applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim" unless the applicant makes specified showings. Pp. 429-430.

(b) The analysis begins with the language of the statute. Although "fail" is sometimes used in a neutral way, not importing fault or want of diligence, this is not the sense in which the word "failed" is used in § 2254(e)(2). A statute's words must be given their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import. E. g., Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207. In its customary and preferred sense, "fail" connotes some omission, fault, or negligence on the part of the person who has failed to do something. If Congress had instead intended a "no-fault" standard, it would have had to do no more than use, in lieu of the phrase "has failed to," the phrase "did not." This interpretation has support in Keeney v. Tamayo-Reyes, 504 U. S. 1, 8, whose threshold standard of diligence is codified in § 2254(e )(2)'s opening clause. The Court's interpretation also avoids putting § 2254(e)(2) in needless tension with § 2254(d), which authorizes habeas relief if the prisoner developed his claim in state court and can prove the state court's decision was "contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." This Court rejects the Commonwealth's arguments for a "no-fault" reading: that treating the prisoner's lack of diligence in state court as a prerequisite for application of § 2254(e )(2) renders a nullity of § 2254(e )(2)(A)(ii)'s provision requiring the prisoner to show "a factual predicate [of his claim] could not have been previously discovered through the exercise of due diligence"; and that anything less than a no-fault understanding of § 2254(e )(2) is contrary to AEDPA's purpose to further comity, finality, and federalism principles. Pp. 431-437.

(c) Petitioner did not exercise the diligence required to preserve his claim that nondisclosure of Cruse's psychiatric report contravened Brady. The report, which mentioned Cruse had little recollection of the murders because he was intoxicated at the time, was prepared before petitioner was tried; yet it was not raised by petitioner until he filed his federal habeas petition. Given evidence in the record that his state habeas counsel knew of the report's existence and its potential

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