The Supreme Court's decision refusing to throw out the death sentence for a Virginia killer who claimed prosecutors ambushed him by producing surprise evidence linking him to two other murders during the penalty phase of the trial. By a 5-4 vote, the Court said Coleman Wayne Gray could not raise the claim in a federal appeal of a state court conviction.

SUPREME COURT OF THE UNITED STATES

Syllabus


GRAY

v.

NETHERLAND, WARDEN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 95-6510.  Argued April 15, 1996-Decided June 20, 1996

At the start of petitioner's Virginia trial for the capital murder of
Richard McClelland, the prosecution acknowledged that, should the
trial reach the penalty phase, it would introduce petitioner's
admissions to other inmates that he had previously murdered Lisa
Sorrell and her daughter. The day that petitioner was convicted of the
McClelland murder, the prosecution disclosed that it would introduce
additional evidence at sentencing linking petitioner to the Sorrell
murders, including crime scene photographs and testimony from the
Sorrell investigating detective and medical examiner. Counsel moved
to exclude evidence pertaining to any felony for which petitioner had
not been charged. Although counsel also complained that he was not
prepared for the additional evidence, and that the defense was taken by
surprise, he did not request a continuance. The court denied the
motions to exclude, and, after a hearing, petitioner was sentenced to
death. After exhausting his state remedies, he sought federal habeas
relief, claiming, as relevant here, that inadequate notice prevented him
from defending against the evidence introduced at the penalty phase,
and that the Commonwealth failed to disclose exculpatory evidence
regarding the Sorrell murders. The District Court initially denied
relief, finding that petitioner had no constitutional right to notice of
individual testimony that the Commonwealth planned to introduce at
sentencing, and that the claim made under Brady v. Maryland, 373 U.
S. 83, was procedurally barred under Virginia law. However, the
court later amended its judgment, concluding that petitioner was
denied due process when the Commonwealth failed to provide fair
notice of what Sorrell murder evidence would be introduced. In
reversing, the Fourth Circuit found that granting habeas relief would
give petitioner the benefit of a new rule of federal constitutional law,
in violation of Teague v. Lane, 489 U. S. 288. The grant of certiorari
is limited to petitioner's notice-of-evidence and Brady claims.


Held:

1. Petitioner's Brady claim is procedurally defaulted. He never raised
that claim in state court, and, because he knew of its grounds when he
filed his first state petition, Virginia law precludes review of the
defaulted claim in any future state habeas proceeding. This provides
an independent and adequate state-law ground for the conviction and
sentence, and thus prevents federal habeas review of the defaulted
claim, unless petitioner can demonstrate cause and prejudice for the
default. Teague v. Lane, supra, at 298. Because he has made no
such demonstration, his claim is not cognizable in a federal suit for the
writ. Pp. 8-9.

2. The misrepresentation claim raised by petitioner in his brief here is
remanded for the Court of Appeals to determine whether he in fact
raised that issue below. Pp. 9-13.

(a) In his brief, petitioner relies on two separate due process
challenges to the manner in which the prosecution introduced evidence
about the Sorrell murders: a notice-of-evidence claim alleging that the
Commonwealth failed to give adequate notice of the evidence it would
use, and a misrepresentation claim alleging that the Commonwealth
mislead him about the evidence it intended to present. For purposes
of exhausting state remedies, a habeas claim must include reference to
a specific federal constitutional guarantee, as well as a statement of the
facts entitling a petitioner to relief. Picard v. Connor, 404 U. S. 270.
A petitioner does not satisfy the exhaustion requirement by presenting
the state courts only with the facts necessary to state a claim for relief.
Nor is it enough to make a general appeal to a constitutional guarantee
as broad as due process to present the "substance" of such a claim to a
state court. Anderson v. Harless, 459 U. S. 4.  Gardner v. Florida,
430 U. S. 349--on which petitioner relies for his notice-of-evidence
claim--and In re Ruffalo, 390 U. S. 544, Raley v. Ohio, 360 U. S.
423, and Mooney v. Holohan, 294 U. S. 103--on which he relies for
his misrepresentation claim--arise in widely differing contexts. The
two claims are separate. Pp. 9-12.

(b) If petitioner never raised the misrepresentation issue in state
proceedings, federal habeas review would be barred unless he could
demonstrate cause and prejudice for his failure to raise the claim in
state proceedings. However, if it was addressed in the federal
proceedings, the Commonwealth would have been obligated to raise
procedural default as a defense or lose the right to assert the defense
thereafter. If the Court of Appeals determines that the issue was
raised, it should consider whether the Commonwealth has preserved
any defenses and proceed to consider the claim and preserved
defenses as appropriate. Pp. 12-13.

3. Petitioner's notice-of-evidence claim would require the adoption of
a new constitutional rule. Pp. 13-17.

(a) Petitioner contends that he was deprived of adequate notice when
he received only one day's notice of the additional evidence, but,
rather than seeking a continuance, he sought to have all such evidence
excluded. For him to prevail, he must establish that due process
requires that he receive more than a day's notice of the
Commonwealth's evidence. He must also show that due process
required a continuance whether or not he sought one, or that, if he
chose not to seek a continuance, exclusion was the only appropriate
remedy. Only the adoption of a new constitutional rule could establish
these propositions. A defendant has the right to notice of the charges
against which he must defend. In re Ruffalo, supra. However, he
does not have a constitutional right to notice of the evidence which the
state plans to use to prove the charges, and Brady, which addressed
only exculpatory evidence, did not create one. Weatherford v.
Bursey, 429 U. S. 545, 559. Gardner v. Florida, supra,
distinguished. Even if notice were required, exclusion of evidence is
not the sole remedy for a violation of such a right, since a continuance
could minimize prejudice. Taylor v. Illinois, 484 U. S. 400, 413.
Petitioner made no such request here, and in view of his insistence on
exclusion, the trial court might well have felt that it would have been
interfering with counsel's tactical decision to order a continuance on
its own motion. Pp. 15-17.

(b) The new rule petitioner proposes does not fall within Teague's
second exception, which is for watershed rules of criminal procedure
implicating a criminal proceeding's fundamental fairness and
accuracy. Whatever one may think of the importance of petitioner's
proposed rule, it has none of the primacy and centrality of the rule
adopted in Gideon v. Wainwright, 372 U. S. 335, or other rules
which may be thought to be within the exception. Saffle v. Parks,
494 U. S. 484, 495. P. 17.

58 F. 3d 59, vacated and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined.
STEVENS, J., filed a dissenting opinion. GINSBURG, J., filed a
dissenting opinion, in which STEVENS, SOUTER, and BREYER,
JJ., joined.



NOTICE: This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports. Readers are
requested to notify the Reporter of Decisions, Supreme 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. 95-6510


COLEMAN WAYNE GRAY, PETITIONER

v.

J. D. NETHERLAND, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT

[June 20, 1996]

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner, convicted of capital murder, complains that his right to due
process of law under the Fourteenth Amendment was violated because
he was not given adequate notice of some of the evidence the
Commonwealth intended to use against him at the penalty hearing of
his trial. We hold that this claim would necessitate a "new rule," and
that therefore it does not provide a basis on which he may seek federal
habeas relief.


Richard McClelland was the manager of a department store, Murphy's
Mart, in Portsmouth, Virginia. On May 2, 1985, at approximately
9:30 p.m., petitioner and Melvin Tucker, a friend, both under the
influence of cocaine, parked in the parking lot of the Murphy's Mart
and watched McClelland and a store security guard inside. Shortly
before midnight, McClelland and the guard came out of the store and
left in separate automobiles. With Tucker in the passenger seat,
petitioner followed McClelland, pulled in front of his car at a stop
sign, threatened him with a .32- caliber revolver, ordered him into
petitioner's car, and struck him. Petitioner and Tucker took
McClelland's wallet and threatened to harm his family if he did not
cooperate. Gray v. Commonwealth, 233 Va. 313, 340-341, 356 S.
E. 2d 157, 172, cert. denied, 484 U. S. 873 (1987).

Petitioner drove the car back to the Murphy's Mart, where he forced
McClelland at gunpoint to reopen the store. They filled three gym bags
with money, totaling between $12,000 and $13,000. Petitioner drove
McClelland and Tucker to a service station, bought gasoline for his car
and for a gas can in the car's trunk, and proceeded to a remote side
road. He took McClelland 15 to 20 feet behind the car and ordered
him to lie down. While McClelland begged petitioner not to hurt or
shoot him, petitioner assured him he would not be harmed. Having
thus assured McClelland, petitioner fired 6 pistol shots into the back
of his head in rapid succession. Id., at 341-342, 356 S. E. 2d, at
172-173.

Leaving McClelland's dead body on the side road, petitioner and
Tucker returned to the intersection where they had seized him.
Petitioner, telling Tucker he wanted to destroy McClelland's car as
evidence, doused its interior with gasoline and lit it with a match. Id.,
at 341-342, 356 S. E. 2d, at 173.

Petitioner and Tucker were later arrested and indicted in the Circuit
Court of the City of Suffolk on several counts, including capital
murder. Having evidence that petitioner had announced before the
killing that "he was going to get" McClelland for having fired his wife
from her job as a saleswoman at the Murphy's Mart, and that
petitioner had told other witnesses after the killing that he had
performed it, the prosecutor entered into a plea bargain with Tucker.
In return for being tried for first-degree murder instead of capital
murder, Tucker would testify at petitioner's trial about events leading
up to the killing and would identify petitioner as the actual "trigger
man."  Id., at 331, 356 S. E. 2d, at 167.


On Monday, December 2, 1985, petitioner's trial began. Petitioner's
counsel moved that the trial court order the prosecution to disclose the
evidence it planned to introduce in the penalty phase. The prosecutor
acknowledged that "in the event [petitioner] is found guilty we do
intend to introduce evidence of statements he has made to other people
about other crimes he has committed of which he has not been
convicted."  14 Record 8. In particular, the prosecution intended to
show that petitioner had admitted to a notorious double-murder in
Chesapeake, a city adjacent to Suffolk. Lisa Sorrell and her 3-year-
old daughter, Shanta, had been murdered five months before
McClelland was killed. The prosecutor told petitioner's counsel in
court that the only evidence he would introduce would be statements
by petitioner to Tucker or fellow inmates that he committed these
murders. Id., at 11.

On Thursday, December 5, 1985, the jury convicted petitioner on all
counts. That evening, the prosecution informed petitioner's counsel
that the Commonwealth would introduce evidence, beyond
petitioner's own admissions, linking petitioner to the Sorrell murders.
The additional evidence included photographs of the crime scene and
testimony by the police detective who investigated the murders and by
the state medical examiner who performed autopsies on the Sorrells'
bodies. The testimony was meant to show that the manner in which
Lisa and Shanta Sorrell had been killed resembled the manner in
which McClelland was killed. The next morning, petitioner's counsel
made two motions "to have excluded from evidence during [the]
penalty trial any evidence pertaining to any . . . felony for which the
defendant has not yet been charged."  18 id., at 776. Counsel argued
that the additional evidence exceeded the scope of unadjudicated-crime
evidence admissible for sentencing under Virginia law, because "[i]n
essence, what [the prosecutor is] doing is trying [the Sorrell] case in
the minds of the jurors."  Id., at 724 (citing Watkins v.
Commonwealth, 229 Va. 469, 331 S. E. 2d 422 (1985), cert. denied,
475 U. S. 1099 (1986)). Although counsel also complained that he
was not "prepared for any of this [additional evidence], other than
[that petitioner] may have made some incriminating statements," 18
Record 725, and that the "[d]efense was taken by surprise," id., at
777, he never requested a continuance. The trial court denied the
motions to exclude.

During the sentencing phase, Tucker testified that, shortly after the
McClelland murder, Gray pointed to a picture of Lisa Sorrell in a
newspaper and told Tucker that he had "knocked off" Sorrell.
Petitioner's counsel did not cross-examine Tucker. Officer Michael
Slezak, who had investigated the Sorrell murders, testified that he
found Lisa's body in the front seat of a partially burned automobile
and Shanta's body in the trunk. Dr. Faruk Presswalla, the medical
examiner who had performed autopsies on the bodies, testified that
Lisa was killed by six bullets to the head, shot from a .32-caliber gun.
Gray, supra, at 345, 356 S. E. 2d, at 175. Petitioner's counsel did
not cross-examine Dr. Presswalla, and only cross-examined Officer
Slezak to suggest that McClelland's murder may have been a
"copycat" murder, committed by a different perpetrator. 18 Record
793, 802.1

The jury fixed petitioner's sentence for McClelland's murder at death.
The trial court entered judgment on the verdicts for all the charges
against petitioner and sentenced him to death. The Virginia Supreme
Court affirmed, 233 Va. 313, 356 S. E. 2d 157, and we denied
certiorari, Gray v. Virginia, 484 U. S. 873 (1987). The Suffolk
Circuit Court dismissed petitioner's state petition for a writ of habeas
corpus. The Virginia Supreme Court affirmed the dismissal, and we
denied certiorari. Gray v. Thompson, 500 U. S. 949 (1991).


Petitioner then sought a writ of habeas corpus from the United States
District Court for the Eastern District of Virginia. With respect to the
Sorrell murders, he argued, inter alia, that he had "never been
convicted of any of these crimes nor was he awaiting trial for these
crimes," that the Commonwealth "did not disclose its intentions to use
the Sorrell murders as evidence against [him] until such a late date that
it was impossible for [his] defense counsel reasonably to prepare or
defend against such evidence at trial," and that Tucker "`sold' his
testimony to the Commonwealth for . . . less than a life sentence."  1
Joint Appendix in No. 94-4009 (CA4), pp. 32-33 (hereinafter J. A.).

The Commonwealth moved to dismiss the petition. To clarify its
arguments against petitioner's Sorrell murder claim, it characterized
petitioner's allegations as seven separate subclaims. The first
subclaim asserted that petitioner was given "inadequate notice of the
evidence which the Commonwealth intended to introduce to permit
him to defend against it," and the third, relying on Brady v. Maryland,
373 U. S. 83 (1963), asserted that "[t]he Commonwealth failed to
disclose evidence tending to prove that someone else had committed
the Sorrell murders."2 Respondent's Brief in Support of Motion to
Dismiss in No. 3:91CV693 (ED Va.), p. 2. According to the State,
the notice-of-evidence subclaim was meritless and could not be the
basis for relief in federal habeas corpus proceedings because it sought
the retroactive application of a new rule of constitutional law. Id., at
18-19, 19-20. The Commonwealth alleged that the Brady subclaim
had not been presented to the state courts on direct appeal or in state
habeas corpus proceedings, and was thus procedurally barred under
Virginia Code Section 8.01-654(B)(2). Respondent's Brief in
Support of Motion to Dismiss, supra, at 19.

Initially, the District Court dismissed the habeas petition. The court
adopted the Commonwealth's characterization of petitioner's Sorrell
claim. See 1 J. A. 193. The court held that petitioner was not entitled
to relief on the notice-of-evidence subclaim, because he "has no
constitutional right to notice of individual items of testimony which the
Commonwealth intends to introduce at the penalty phase."  Id., at
194. The court declined to review the Brady subclaim because it was
procedurally barred. 1 J. A. 194.

Later, on petitioner's motion, the District Court amended its judgment
to find within petitioner's Sorrell claim a specific due process claim
about the admissibility of the Sorrell murder evidence. Id., at 252.
(In amending this judgment, the court announced that it remained
unchanged as to the remaining claims, which it had dismissed. Id., at
251.) After holding an evidentiary hearing on the Sorrell claim, the
District Court ordered that petitioner be granted a writ of habeas
corpus. The court characterized the claim as an allegation that
petitioner "was denied due process of law under the Fourteenth
Amendment of the United States Constitution because the
Commonwealth failed to provide fair notice that evidence concerning
the Sorrell murders would be introduced at his penalty phase."  App.
348. Citing Gardner v. Florida, 430 U. S. 349, 357-359 (1977), the
court determined that there was a constitutional defect in petitioner's
penalty phase hearing: "Petitioner was confronted and surprised by the
testimony of officer Slezak and Dr. Presswalla."  App. 349. This
defect "violated [petitioner's] right to fair notice and rendered the
hearing clearly unreliable," because petitioner's attorneys had less than
one day's notice of the additional evidence to be used against their
client. Id., at 349-350.

The Commonwealth appealed, arguing to the Fourth Circuit that to
grant petitioner habeas relief would give him the benefit of a new rule
of federal constitutional law, in violation of Teague v. Lane, 489 U.
S. 288 (1989). The Fourth Circuit reversed the judgment granting the
writ, rejected petitioner's cross-appeals from the dismissal of several
other claims, and remanded with directions that the habeas corpus
petition be dismissed. Gray v. Thompson, 58 F. 3d 59, 67 (1995).
The court distinguished Gardner, on which the District Court had
relied, because petitioner, unlike Gardner, "was not sentenced on the
basis of any secret information."  58 F. 3d, at 64. The court thus
concluded that petitioner's notice-of-evidence claim "was not
compelled by existing precedent at the time his conviction became
final," and thus could not be considered in federal habeas proceedings
under Teague. 58 F. 3d, at 64.

The Commonwealth scheduled petitioner's execution for December
14, 1995. Petitioner applied for a stay of execution and petitioned for
a writ of certiorari from this Court. We granted his stay application on
December 13, 1995. 516 U. S. ___ (1995). On January 5, 1996, we
granted certiorari, limited to the questions whether petitioner's notice-
of-evidence claim stated a new rule and whether the Commonwealth
violated petitioner's due process rights under Brady by withholding
evidence exculpating him from responsibility for the Sorrell murders.
516 U. S. ___ (1995); see Pet. for Cert. i.


We first address petitioner's Brady claim. The District Court
determined that "[t]his claim was not presented to the Supreme Court
of Virginia on direct appeal nor in state habeas corpus proceedings,"
and that "the factual basis of this claim was available to [petitioner] at
the time he litigated his state habeas corpus petition," and dismissed
the claim on this basis. 1 J. A. 194. Petitioner does not contest these
determinations in this Court.

Petitioner's failure to raise his Brady claim in state court implicates the
requirements in habeas of exhaustion and procedural default. 28 U.
S. C. Section 2254(b) bars the granting of habeas corpus relief
"unless it appears that the applicant has exhausted the remedies
available in the courts of the State."  Because "[t]his requirement . . .
refers only to remedies still available at the time of the federal
petition," Engle v. Isaac, 456 U. S. 107, 126, n. 28 (1982), it is
satisfied "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). However, the procedural bar which gives rise to
exhaustion provides an independent and adequate state-law ground for
the conviction and sentence, and thus prevents federal habeas corpus
review of the defaulted claim, unless the petitioner can demonstrate
cause and prejudice for the default. Teague v. Lane, supra, at 298;
Isaac, supra, at 126, n. 28, 129; Wainright v. Sykes, 433 U. S. 72,
90-91 (1977).

In Virginia, "[n]o writ [of habeas corpus ad subjiciendum] shall be
granted on the basis of any allegation the facts of which petitioner had
knowledge at the time of filing any previous petition."  Va. Code Ann.
Section 8.01-654(B)(2) (1992). Because petitioner knew of the
grounds of his Brady claim when he filed his first petition, Section
8.01-654(B)(2) precludes review of petitioner's claim in any future
state habeas proceeding. Because petitioner makes no attempt to
demonstrate cause or prejudice for his default in state habeas
proceedings, his claim is not cognizable in a federal suit for the writ.


Petitioner makes a separate due process challenge to the manner in
which the prosecution introduced evidence about the Sorrell murders.
We perceive two separate claims in this challenge. As we will explain
in greater detail below, petitioner raises a "notice-of-evidence" claim,
which alleges that the Commonwealth deprived petitioner of due
process by failing to give him adequate notice of the evidence the
Commonwealth would introduce in the sentencing phase of his trial.
He raises a separate "misrepresentation" claim, which alleges that the
Commonwealth violated due process by misleading petitioner about
the evidence it intended to use at sentencing.

In Picard v. Connor, 404 U. S. 270 (1971), we held that, for
purposes of exhausting state remedies, a claim for relief in habeas
corpus must include reference to a specific federal constitutional
guarantee, as well as a statement of the facts which entitle the
petitioner to relief. We considered whether a habeas petitioner was
entitled to relief on the basis of a claim, which was not raised in the
state courts or in his federal habeas petition, that the indictment
procedure by which he was brought to trial violated equal protection.
Id., at 271. In announcing that "the substance of a federal habeas
corpus claim must first be presented to the state courts," id., at 278,
we rejected the contention that the petitioner satisfied the exhaustion
requirement of 28 U. S. C. Section 2254(b) by presenting the state
courts only with the facts necessary to state a claim for relief. "The
[state court] dealt with the arguments [the habeas petitioner] offered;
we cannot fault that court for failing also to consider sua sponte
whether the indictment procedure denied [the petitioner] equal
protection of the laws."  Id., at 277.

We have also indicated that it is not enough to make a general appeal
to a constitutional guarantee as broad as due process to present the
"substance" of such a claim to a state court. In Anderson v. Harless,
459 U. S. 4 (1982), the habeas petitioner was granted relief on the
ground that it violated due process for a jury instruction to obviate the
requirement that the prosecutor prove all the elements of the crime
beyond a reasonable doubt. Id., at 7 (citing Sandstrom v. Montana,
442 U. S. 510 (1979)). The only manner in which the habeas
petitioner had cited federal authority was by referring to a state-court
decision in which "the defendant . . . asserted a broad federal due
process right to jury instructions that properly explain state law."  459
U. S., at 7 (internal quotation marks omitted). Our review of the
record satisfied us that the Sandstrom claim "was never presented to,
or considered by, the [state] courts," but we found it especially
significant that the "broad federal due process right" that the habeas
petition might have been read to incorporate did not include "the more
particular analysis developed in cases such as Sandstrom."  Ibid.

The due process challenge in petitioner's brief relies on  two
"particular analys[es]" of due process. Ibid. Relying on cases like
Gardner v. Florida, 430 U. S. 349 (1977), and Skipper v. South
Carolina, 476 U. S. 1 (1986), petitioner argues that he should have
been given "`such notice of the issues involved in the [sentencing]
hearing as [would have] reasonably enable[d] him to prepare his
case,'" Brief for Petitioner 32 (quoting Schwartz, Administrative Law
283 (2d ed. 1984)), that he was denied "a fair opportunity to be heard
on determinative sentencing issues," Brief for Petitioner 33. This
right stems from the defendant's "legitimate interest in the character of
the procedure which leads to the imposition of sentence" of death,
Gardner, supra, at 358, which justifies giving him an "opportunity to
deny" potentially determinative sentencing information, id., at 362.

"Yet another way in which the state may unconstitutionally . . .
deprive [a defendant] of a meaningful opportunity to address the
issues, is simply by misinforming him."  Brief for Petitioner 34.
Petitioner cites In re Ruffalo, 390 U. S. 544 (1968), Raley v. Ohio,
360 U. S. 423 (1959), and Mooney v. Holohan, 294 U. S. 103
(1935), for this proposition. Ruffalo was a disbarment proceeding in
which this Court held that the disbarred attorney had not been given
notice of the charges against him by the Ohio committee which
administered bar discipline. 390 U. S., at 550. In Raley, the
chairman and members of a state investigating commission assured
witnesses that the privilege against self-incrimination was available to
them, but when the witnesses were convicted for contempt the
Supreme Court of Ohio held that a state immunity statute rendered the
Fifth Amendment privilege unavailable. 360 U. S., at 430-434. And
in Mooney v. Holohan, the defendant alleged that the prosecution
knowingly used perjured testimony at his trial. 294 U. S., at 110.

Gardner, Ruffalo, Raley, and Mooney arise in widely differing
contexts. Gardner forbids the use of secret testimony in the penalty
proceeding of a capital case which the defendant has had no
opportunity to consider or rebut. Ruffalo deals with a defendant's
right to notice of the charges against him. Whether or not Ruffalo
might have supported petitioner's notice-of-evidence claim, see infra,
at 16, it does not support the misrepresentation claim for which
petitioner cites it. Mooney forbade the prosecution from engaging in
"a deliberate deception of court and jury."  294 U. S., at 112. Raley,
though involving no deliberate deception, held that defendants who
detrimentally relied on the assurance of a committee chairman could
not be punished for having done so. Mooney, of course, would lend
support to petitioner's claim if it could be shown that the prosecutor
deliberately misled him, not just that he changed his mind over the
course of the trial. The two claims are separate.


The Commonwealth argues that the misrepresentation claim "was
never argued before in any court."  Brief for Respondent 39. If
petitioner never presented this claim on direct appeal or in state habeas
proceedings, federal habeas review of the claim would be barred
unless petitioner could demonstrate cause and prejudice for his failure
to raise the claim in state proceedings. Supra, at 8. If the claim was
not raised or addressed in federal proceedings, below, our usual
practice would be to decline to review it. Yee v. Escondido, 503 U.
S. 519, 533 (1992).


There is some ambiguity as to whether the misrepresentation claim
was raised or addressed in the District Court or the Court of Appeals.
On the one hand, the District Court ordered relief primarily on the
basis of Gardner, i.e., lack of notice. Supra, at 6-7. On the other
hand, some of the District Court findings advert to a deliberate
decision by the prosecutor to mislead petitioner's counsel for tactical
advantage. See, e.g., App. 348, 350. The ambiguity in the federal
record complicates the state-court procedural default issue, because
procedural default is an affirmative defense for the Commonwealth. If
the misrepresentation claim was addressed at some stage of federal
proceedings, the Commonwealth would have been obligated to raise
procedural default as a defense, or lose the right to assert the defense
thereafter. See Jenkins v. Anderson, 447 U. S. 231, 234, n. 1
(1980); see also Schiro v. Farley, 510 U. S. 222, 227-228 (1994).

We remand for the Court of Appeals to determine whether petitioner in
fact raised what in his briefs on the merits to this Court he asserts has
been his "fundamental complaint throughout this litigation . . . : the
Commonwealth's affirmative misrepresentation regarding its
presentation of the Sorrell murders . . . deprived Petitioner of a fair
sentencing proceeding."  Reply Brief for Petitioner 4-5. If the
misrepresentation claim was raised, the Court of Appeals should
consider whether the Commonwealth has preserved any defenses to it
and proceed to consider the claim and preserved defenses as
appropriate.

We turn to the notice-of-evidence claim, and consider whether the
Court of Appeals correctly concluded that this claim sought the
retroactive application of a new rule of federal constitutional law. We
have concluded that the writ's purpose may be fulfilled with the least
intrusion necessary on States' interest of the finality of criminal
proceedings by applying constitutional standards contemporaneous
with the habeas petitioner's conviction to review his petition. See
Teague, 489 U. S., at 309-310 (opinion of O'CONNOR, J.). Thus,
habeas relief is appropriate only if "a state court considering [the
petitioner's] claim at the time his conviction became final would have
felt compelled by existing precedent to conclude that the rule [he]
seeks was required by the Constitution." Saffle v. Parks, 494 U. S.
484, 488 (1990).

At the latest, petitioner knew at the start of trial that the prosecutor
intended to introduce evidence tending to show that he committed the
Sorrell murders. He knew then that the Commonwealth would call
Tucker to the stand to repeat his statement that petitioner had admitted
to committing the murders.3   See App. 340; 14 Record 8-9. He
nonetheless contends that he was deprived of adequate notice of the
other witnesses, the police officer and the medical examiner who had
investigated the Sorrell murders, whom he was advised that the
prosecutor would call only on the evening before the sentencing
hearing. App. 342; 18 Record 777. But petitioner did not attempt to
cure this inadequacy of notice by requesting more time to respond to
this evidence. He instead moved "to have excluded from evidence
during this penalty trial any evidence pertaining to any other--any
felony for which the defendant has not yet been charged."4   Id., at
776.

On these facts, for petitioner to prevail on his notice-of-evidence
claim, he must establish that due process requires that he receive more
than a day's notice of the Commonwealth's evidence. He must also
establish that due process required a continuance whether or not he
sought one, or that, if he chose not to seek a continuance, exclusion
was the only appropriate remedy for the inadequate notice. We
conclude that only the adoption of a new constitutional rule could
establish these propositions.

A defendant's right to notice of the charges against which he must
defend is well established. In re Ruffalo, 390 U. S. 544 (1968); Cole
v. Arkansas, 333 U. S. 196 (1948). But a defendant's claim that he
has a right to notice of the evidence which the state plans to use to
prove the charges stands on quite a different footing. We have said
that "the Due Process Clause has little to say regarding the amount of
discovery which the parties must be afforded."  Wardius v. Oregon,
412 U. S. 470, 474, (1973). In Weatherford v. Bursey, 429 U. S.
545 (1977), we considered the Due Process claim of a defendant who
had been convicted with the aid of surprise testimony of an accomplice
who was an undercover agent. Although the prosecutor had not
intended to introduce the agent's testimony, he changed his mind the
day of trial. Id., at 549. To keep his cover, the agent had told the
defendant and his counsel that he would not testify against the
defendant. Id., at 560. We rejected the defendant's claim, explaining
that "[t]here is no general constitutional right to discovery in a criminal
case, and Brady," which addressed only exculpatory evidence, "did
not create one," id., at 559. To put it mildly, these cases do not
compel a court to order the prosecutor to disclose his evidence; their
import, in fact, is strongly against the validity of petitioner's claim.

Petitioner relies principally on Gardner v. Florida, 430 U. S. 349
(1977), for the proposition that a defendant may not be sentenced to
death "on the basis of information which he had no opportunity to
deny or explain."  Id., at 362 (opinion of STEVENS, J.). In
Gardner, the trial court sentenced the defendant to death relying in part
on evidence assembled in a presentence investigation by the state
parole commission; the "investigation report contained a confidential
portion which was not disclosed to defense counsel."  Id., at 353.
Gardner literally had no opportunity to even see the confidential
information, let alone contest it. Petitioner in the present case, on the
other hand, had the opportunity to hear the testimony of Officer Slezak
and Dr. Presswalla in open court, and to cross-examine them. His
claim to notice is much more akin to the one rejected in Weatherford,
supra, than to the one upheld in Gardner.

Even were our cases otherwise on the notice issue, we have
acknowledged that exclusion of evidence is not the sole remedy for a
violation of a conceded right to notice of an alibi witness. In Taylor v.
Illinois, 484 U. S. 400 (1988), we said that in this situation "a less
drastic sanction is always available. Prejudice . . . could be
minimized by granting a continuance."  Id., at 413. Here, counsel did
not request a continuance; he argued only for exclusion. Counsel
argued that the evidence should be excluded not only because he was
not prepared to contest the evidence, but also because it exceeded the
standard in Virginia, Watkins v. Commonwealth, 229 Va. 469, 331
S. E. 2d 422 (1985), for relevance of unsolved-crime evidence to
sentencing. See 18 Record 723. In view of petitioner's insistence on
exclusion of the evidence, the trial court might well have felt that it
would have been interfering with a tactical decision of counsel to order
a continuance on its own motion.

The dissent argues that petitioner seeks the benefit of a well-
established rule, that "a capital defendant must be afforded a
meaningful opportunity to explain or deny the evidence introduced
against him at sentencing."  Post, at 11. Because we disagree with the
dissent's assertion that petitioner moved for a continuance, we
disagree with its characterization of the constitutional rule underlying
his claim for relief. Compare supra, at 14, and n. 4, with post, 15, n.
11. The dissent glosses over the similarities between this case and
Weatherford, which "`dictate[s],'" post, at 10, the disposition of
petitioner's claim--adversely to petitioner--more clearly than any
precedent cited by the dissent. But even without Weatherford and
petitioner's failure to move for a continuance, we would still think the
new-rule doctrine "would be meaningless if applied at this level of
generality."  Sawyer v. Smith, 497 U. S. 227, 236 (1990). We
therefore hold that petitioner's notice-of-evidence claim would require
the adoption of a new constitutional rule.


Petitioner argues that relief should be granted nonetheless, because the
new rule he proposes falls within one of Teague's two exceptions.
"The first exception permits the retroactive application of a new rule if
the rule places a class of private conduct beyond the power of the State
to proscribe."  Parks, 494 U. S., at 494 (citing Teague, 489 U. S., at
311). This exception is not at issue here. "The second exception is
for `watershed rules of criminal procedure' implicating the
fundamental fairness and accuracy of the criminal proceeding."
Parks, supra, at 495 (citing Teague, supra, at 311; Butler v.
McKellar, 494 U. S. 407, 416 (1990)). Petitioner argues that his
notice-of-evidence new rule is "mandated by long-recognized
principles of fundamental fairness critical to accuracy in capital
sentencing determinations."  Brief for Petitioner 47.

We observed in Saffle v. Parks that the paradigmatic example of a
watershed rule of criminal procedure is the requirement that counsel be
provided in all criminal trials for serious offenses. 494 U. S., at 495
(citing Gideon v. Wainwright, 372 U. S. 335 (1963)). "Whatever
one may think of the importance of [petitioner's] proposed rule, it has
none of the primacy and centrality of the rule adopted in Gideon or
other rules which may be thought to be within the exception."  Parks,
supra, at 495. The rule in Teague therefore applies, and petitioner
may not obtain habeas relief on his notice-of-evidence claim.


We hold that petitioner's Brady claim is procedurally defaulted and
that his notice-of-evidence claim seeks retroactive application of a new
rule. Neither claim states a ground upon which relief may be granted
in federal habeas corpus proceedings. However, we vacate the
judgment of the Court of Appeals, and remand the case for
consideration of petitioner's misrepresentation claim in proceedings
consistent with this opinion.

It is so ordered.



SUPREME COURT OF THE UNITED STATES


No. 95-6510


COLEMAN WAYNE GRAY, PETITIONER

v.

J. D. NETHERLAND, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT

[June 20, 1996]

JUSTICE STEVENS, dissenting.

JUSTICE GINSBURG has cogently explained why well-settled law
requires the reversal of the judgment of the Court of Appeals. I join
her opinion with this additional observation. The evidence tending to
support the proposition that petitioner committed the Sorrell murders
was not even sufficient to support the filing of charges against him.
Whatever limits due process places upon the introduction of evidence
of unadjudicated conduct in capital cases, they surely were exceeded
here. Given the "vital importance" that "any decision to impose the
death sentence be, and appear to be, based on reason rather than
caprice or emotion", the sentencing proceeding would have been
fundamentally unfair even if the prosecutors had given defense
counsel fair notice of their intent to offer this evidence. See Gardner
v. Florida, 430 U. S. 349, 357-358 (1977) (Opinion of STEVENS,
J.).



SUPREME COURT OF THE UNITED STATES


No. 95-6510


COLEMAN WAYNE GRAY, PETITIONER

v.

J. D. NETHERLAND, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT

[June 20, 1996]

JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE
SOUTER, and JUSTICE BREYER join, dissenting.

Basic to due process in criminal proceedings is the right to a full, fair,
potentially effective opportunity to defend against the State's charges.
Petitioner Gray was not accorded that fundamental right at the penalty
phase of his trial for capital murder. I therefore conclude that no "new
rule" is implicated in his petition for habeas corpus, and dissent from
the Court's decision, which denies Gray the resentencing proceeding
he seeks.


Petitioner Coleman Gray's murder trial began on Monday, December
2, 1985, in the city of Suffolk, Virginia. He was charged with killing
Richard McClelland during the commission of a robbery, a capital
offense. Va. Code Ann. Section 18.2-31(4) (Supp. 1995). Under
Virginia law, the trial would proceed in two stages: during the guilt
phase, the jury would determine whether Gray was guilty of capital
murder; and during the penalty phase, the jury would decide whether
Gray should be sentenced to death or life imprisonment. See Va.
Code Ann. Section 19.2-264.4(A) (1995).

At an in-chambers conference before the guilt phase began, Gray's
lawyers requested a court order directing the prosecutor to disclose the
evidence he would introduce during the penalty phase if Gray were
convicted.1   Defense counsel wanted to know, in particular, whether
the prosecutor planned to introduce evidence relating to the murders of
Lisa Sorrell and her 3-year-old daughter, Shanta. Defense counsel
informed the trial court of the basis for the request:

". . . Your Honor, this is my concern. We will probably at the very
best stop in the middle of the day or late in the afternoon and start the
penalty trial the next day. . . . [W]e have good reason to believe that
[the prosecutor] is going to call people to introduce a statement that
our client supposedly made to another inmate that he murdered [the
Sorrells] which were very violent and well-known crimes throughout
this entire area.

"If that comes in we are going to want to know it in advance so we
can be prepared on our argument. . . . It's absolute dynamite."  3
Joint Appendix in No. 94-4009 (CA4), pp. 1328-1329 (hereinafter J.
A.).

The Sorrell murders "were one of the most highly publicized crimes in
the history of the Tidewater, Virginia area."  App. 341. In December
1984, five days after they were reported missing, Lisa and Shanta
Sorrell were found dead in a partially burned car in Chesapeake,
Virginia, a city that shares borders with Suffolk. Lisa's body was
slumped in the front passenger seat of the car; she had been shot in the
head six times. Shanta had been removed from her car seat and
locked in the trunk, where she died after inhaling smoke produced by
the fire in the car's passenger compartment. Neither Gray nor anyone
else has ever been charged with commission of the Sorrell murders.2


In response to defense counsel's disclosure request, the prosecutor
told Gray's lawyers and the court that he would introduce
"statements" Gray had made to other inmates in which Gray allegedly
admitted killing the Sorrells. The following exchange then took place
between defense counsel Moore and prosecutor Ferguson:

"MR. MOORE: Is it going to be evidence or just his statement?

"MR. FERGUSON: Statements that your client made.

"MR. MOORE: Nothing other than statements?

"MR. FERGUSON: To other people, that's correct. Statements made
by your client that he did these things." 3 J. A. 1331 (emphasis
added).

After the in-chambers conference ended, the guilt phase of the trial
began. Three days later, at 4 o'clock on Thursday afternoon,
December 5, the jury returned a verdict finding Gray guilty of the
capital murder of McClelland. Proceedings were adjourned for the
day, with the penalty phase to begin at 9:30 the next morning.

That evening, the prosecutor informed defense counsel that, in
addition to Gray's statements, he planned to introduce further
evidence relating to the Sorrell murders. That further evidence
included: (1) the testimony of Detective Slezak, the police officer who
investigated the Sorrell murders, regarding his observations at the
crime scene shortly after the bodies of Lisa and Shanta were
discovered; (2) graphic photographs of the crime scene, depicting the
interior of the partially burned car, Lisa's body in the front seat, and
Shanta's body in the trunk; (3) the testimony of Doctor Presswalla,
the state medical examiner who conducted the autopsies of the victims,
regarding the causes of their deaths; (4) graphic photographs of the
victims at the time of the autopsies, including a photograph depicting
the back of Lisa's head, shaved to reveal six gunshot wounds; and (5)
Doctor Presswalla's autopsy reports. See App. 29-37, 40-47.

This additional evidence, advanced by the prosecutor on the eve of the
penalty phase, suggested that the Sorrell murders were carried out in a
manner "strikingly similar" to the murder of McClelland. Gray v.
Commonwealth, 233 Va. 313, 347, 356 S. E. 2d 157, 176 (1987).
Like Lisa Sorrell, McClelland had been shot six times in the head; his
car, too, had been partially burned. As defense counsel later
explained, "the similarities between the McClelland murder and the
Sorrell murder would be obvious to anyone sitting in a jury box."
App. 141.

On Friday morning, December 6, before trial proceedings resumed,
defense counsel informed the court of Thursday evening's
developments. Gray's lawyers told the court they had learned for the
first time the previous evening that the prosecutor planned to introduce
evidence relating to the Sorrell murders other than Gray's alleged
statements. Counsel stated that while they were prepared to rebut the
statements, they were "not prepared to rebut [the additional evidence] .
. . because of the shortness of notice."  4 J. A. 2065. "We are not
prepared to try the Sorrell murder today," counsel told the court. "We
have not been given sufficient notice."  Ibid.

Gray's lawyers argued that the case relied on by the prosecutor,
Watkins v. Commonwealth, 229 Va. 469, 331 S. E. 2d 422 (1985),
was distinguishable. There, counsel explained, separate murder
charges were outstanding against the defendant, and "[t]he lawyers
who were representing [Watkins] in the first murder trial were already
representing him with respect to the second murders. They were
aware of all the charges, were aware of the evidence that was available
to the Commonwealth in the second murder charge and were in a
position to confront the evidence . . . that would come in [during] the
penalty trial."  4 J. A. 2065-2066. In contrast to the situation in
Watkins, counsel pointed out, "[w]e are not prepared for any of this,
other than [Gray] may have made some incriminating statements."  4
J. A. 2067. The trial court nonetheless ruled that the Sorrell murders
evidence was "admissible at this stage of the trial."  Id., at 2068.

The penalty phase of the trial then commenced. The prosecutor, in
keeping with his representations before the guilt phase began, called
Melvin Tucker to the stand. Tucker was Gray's accomplice in the
McClelland murder; he, along with Gray, had initially been charged
with capital murder. After plea negotiations, however, the prosecutor
agreed to reduce the charge against Tucker to first-degree murder, a
noncapital offense, in exchange for Tucker's testimony against Gray.
App. 339, and n. 3. Tucker testified during the guilt phase that Gray
had been the "triggerman" in McClelland's murder.

Tucker testified at the penalty phase that, shortly after the McClelland
robbery, he and Gray "were searching through the newspaper for
some information" on the crime. Id., at 22. According to Tucker,
Gray stated that he had "knocked off" Lisa Sorrell, and pointed to a
picture of Lisa Sorrell in the newspaper. Id., at 22-23.3   Gray's
lawyers declined to cross-examine Tucker after his penalty phase
testimony; in their view, Tucker's motive to lie had already been
adequately exposed during the guilt phase. See id., at 157 (testimony
of defense counsel Moore) ("Melvin Tucker had been . . . extensively
. . . cross-examined during the guilt phase . . . . The same jurors who
were sitting there during the guilt trial were there during the penalty
phase and they had been told and drawn a pretty accurate picture as to
why Melvin Tucker would strike a deal and tell anybody anything they
wanted to hear. To save his life. That didn't need to be brought up
again.").

The prosecutor then called Detective Slezak. Defense counsel
renewed their objection, outside the presence of the jury, to admission
of any evidence relating to the Sorrell murders other than Gray's
statements. Counsel reiterated that they had "had no notice of this,"
and had been "taken by surprise."  Id., at 25. What the prosecutor "is
going to do today," they emphasized, "is not what he said he was
going to do at the beginning of trial."  Id., at 27. The court adhered to
its earlier ruling that the evidence was admissible.

With nothing more than Tucker's testimony linking Gray to the Sorrell
murders, the trial court then allowed the prosecutor to introduce the
testimony of Detective Slezak and Doctor Presswalla, as well as crime
scene and autopsy photographs and the victims' autopsy reports. See
supra, at 4. During the defense case, Gray took the stand, admitted
complicity in the McClelland murder but denied being the
"triggerman," and denied any involvement in the Sorrell murders.
App. 346-347. After closing arguments, in which the prosecutor
highlighted the similarities between the Sorrell and McClelland
murders, and urged that Gray's commission of the Sorrell murders
demonstrated his "future dangerous[ness]," see id., at 51-53, the jury
fixed Gray's punishment at death.

Gray unsuccessfully argued on direct appeal to the Virginia Supreme
Court and in state habeas proceedings that admission of the additional
Sorrell murders evidence violated his right to a fair trial under the
Fourteenth Amendment. Gray then filed a federal habeas petition in
the United States District Court for the Eastern District of Virginia.
Gray argued, among other things, that admission of the Sorrell
murders evidence violated his Fourteenth Amendment rights. 1 J. A.
35. Specifically, he asserted:

"The Commonwealth did not disclose its intentions to use the Sorrell
murders as evidence against Gray until such a late date that it was
impossible for Gray's defense counsel reasonably to prepare or
defend against such evidence at trial. Because of the late notice, . . .
Gray could not adequately prepare to defend his innocence regarding
the Sorrell murders."  Id., at 33.

The District Court concluded that other claims pressed by Gray in his
federal habeas petition were either procedurally barred or meritless.
The court found, however, that the Sorrell evidence claim "was
consistently raised in the State courts and is not procedurally
defaulted."  Id., at 253.

After conducting an evidentiary hearing, the District Court granted
Gray a writ of habeas corpus. Relying primarily on Gardner v.
Florida, 430 U. S. 349 (1977), the court held that Gray's due process
rights were violated "because the Commonwealth failed to provide fair
notice that evidence concerning the Sorrell murders would be
introduced at his penalty phase," App. 348; consequently, Gray
became vulnerable to a death sentence on the basis of information he
had scant opportunity to deny or explain, see id., at 349-351.
Recalling the prosecutor's Monday morning affirmations that he
would introduce only Gray's "statements," the District Court noted
that Gray's lawyers were "clearly and justifiably . . . shocked" when
the prosecutor reported, Thursday evening, his intention to introduce,
the next day, further evidence on the Sorrell murders. Id., at 350.
"The only Sorrell murder evidence which [Gray's lawyers] were
prepared to challenge," the District Court recounted, "was the
evidence [the prosecutor] indicated he would introduce at the outset of
the trial: Melvin Tucker's statement that Gray allegedly had confessed
to the murders."  Id., at 346. The prosecutor's surprise move had
disarmed Gray's counsel, the District Court recognized, leaving them
without capacity to cross-examine Detective Slezak and Doctor
Presswalla effectively, with the result that the Sorrell murders
evidence "carrie[d] no assurance of reliability."  Id., at 351.

"The consequences of this surprise," the District Court found, "could
not have been more devastating."  Id., at 350. Most critically, the
prosecutor's "statements only" assurance led defense counsel to forgo
investigation of the details of the Sorrell murders, including a review
of the evidence collected by the Chesapeake police department during
its investigation of the crimes. See ibid. Had Gray's lawyers
conducted such a review, they could have shown that none of the
forensic evidence collected by the Chesapeake police directly linked
Gray to the Sorrell murders.4   Moreover, the evidence the
Chesapeake police did obtain "strongly suggested that Timothy
Sorrell"--Lisa's husband and Shanta's father--"actually committed the
notorious murders."  Id., at 350-351.

Indeed, for a substantial period of time following the Sorrell murders,
Timothy Sorrell was the prime suspect in the case.5   Police suspicion
focused on Mr. Sorrell the night Lisa and Shanta were found dead.
When Detective Slezak and another officer informed Mr. Sorrell of the
grim discovery, his statements and demeanor made the officers
"highly suspicious."  Id., at 186.6

Police subsequently learned that Timothy Sorrell had an apparent
motive for the murders. Two weeks before Lisa and Shanta were
killed, the Sorrells obtained a life insurance policy, which designated
Timothy and Shanta as beneficiaries in the event of Lisa's death. Id.,
at 344.7 Lisa's parents later filed a lawsuit to stop Mr. Sorrell from
obtaining the proceeds of the insurance policy, alleging that he was
responsible for Lisa's death. Ibid. In addition, police uncovered
evidence suggesting that Mr. Sorrell was involved in a stolen
merchandise ring at his place of employment, the Naval Supply
Center, and that Lisa "was very angry and unhappy about her
husband's apparent criminal activities."  Id., at 345.8   Based on this
information, Detective Slezak asked the local Commonwealth's
Attorney "to determine whether it was appropriate to prosecute
Timothy Sorrell."  Ibid.9

Assessing the prejudicial potency of the Sorrell murders evidence
admitted at the penalty phase of Gray's trial, the District Court
concluded that the due process violation was not harmless. Id., at
353. The District Court therefore vacated Gray's death sentence, and
remanded the case to the state trial court for resentencing.

The Court of Appeals for the Fourth Circuit reversed. Gray v.
Thompson, 58 F. 3d 59 (1995). It held that federal habeas relief was
barred because Gray's due process claim depended on a "new rule" of
constitutional law which, under Teague v. Lane, 489 U. S. 288
(1989), could not be applied on collateral review. The Court of
Appeals accordingly remanded the case, directing the District Court to
dismiss Gray's habeas petition.


A case announces a "new rule" under Teague "if the result was not
dictated by precedent existing at the time the defendant's conviction
became final."  Id., at 301 (plurality opinion). Gray's conviction
became final in 1987, when we denied certiorari to review the Virginia
Supreme Court's decision on direct appeal. See Gray v. Virginia, 484
U. S. 873 (1987). As explained below, precedent decided well before
1987 "dictates" the conclusion that Gray was not accorded due
process at the penalty phase of his trial.

Gray's claim is encompassing, but it is fundamental. Under the Due
Process Clause, he contends, a capital defendant must be afforded a
meaningful opportunity to explain or deny the evidence introduced
against him at sentencing. See Brief for Petitioner 45; Reply Brief for
Petitioner 5. The District Court concluded that Gray was stripped of
any meaningful opportunity to explain or deny the Sorrell murders
evidence, for his lawyers were unfairly "ambushed"--clearly surprised
and devastatingly disarmed by the prosecutor's decision, announced
on the eve of the penalty trial, to introduce extensive evidence other
than Gray's statements. App. 349-351. Gray's counsel reasonably
relied on the prosecutor's unequivocal "statements only" pledge, see
id., at 342, made at the outset of trial; based on the prosecutor's
assurances, defense counsel spent no resources tracking down
information in police records on the Sorrell murders. The
prosecutor's switch, altogether unanticipated by defense counsel, left
them with no chance to uncover, through their own investigation,
information that could have defused the prosecutor's case, in short,
without time to prepare an effective defense. Id., at 351.

The Fourth Circuit recast Gray's claim, transforming it into an
assertion of a broad constitutional right to discovery in capital cases.
See 58 F. 3d, at 64-65. This Court also restates and reshapes Gray's
claim. The Court first slices Gray's whole claim into pieces; it then
deals discretely with each segment it "perceive[s]," ante, at 9: a
"misrepresentation" claim, ante, at 12-13; and a supposed "notice-of-
evidence" claim, ante, at 13-17. Gray, himself, however, has "never
claimed a constitutional right to advance discovery of the
Commonwealth's evidence."  Brief for Petitioner 46, n. 37, and
accompanying text. His own claim is more basic and should not
succumb to artificial endeavors to divide and conquer it.

There is nothing "new" in a rule that capital defendants must be
afforded a meaningful opportunity to defend against the State's
penalty phase evidence. As this Court affirmed more than a century
ago: "Common justice requires that no man shall be condemned in his
person or property without . . . an opportunity to make his defence."
Baldwin v. Hale, 1 Wall. 223, 233 (1864). See also Windsor v.
McVeigh, 93 U. S. 274, 277 (1876). A pro forma opportunity will
not do.10   Due process demands an opportunity to be heard "at a
meaningful time and in a meaningful manner."  Armstrong v. Manzo,
380 U. S. 545, 552 (1965); see In re Oliver, 333 U. S. 257, 275
(1948) (defendant must be afforded "a reasonable opportunity to meet
[the charges against him] by way of defense or explanation"); Morgan
v. United States, 304 U. S. 1, 18 (1938) ("The right to a hearing
embraces not only the right to present evidence but also a reasonable
opportunity to know the claims of the opposing party and to meet
them."). Absent a full, fair, potentially effective opportunity to defend
against the State's charges, the right to a hearing would be "but a
barren one."  Ibid.; see Mullane v. Central Hanover Bank & Trust
Co., 339 U. S. 306, 315 (1950) ("process which is a mere gesture is
not due process").

In Gardner v. Florida, 430 U. S. 349 (1977), the principal decision
relied on by the District Court, we confirmed that the sentencing phase
of a capital trial "must satisfy the requirements of the Due Process
Clause." Id., at 358 (plurality opinion). Gardner presented the
question whether a defendant was denied due process when the trial
judge sentenced him to death relying in part on a presentence report,
including a confidential portion not disclosed to defense counsel.
Counsel's deprivation of an "opportunity . . . to challenge the
accuracy or materiality" of the undisclosed information, id., at 356,
the Gardner plurality reasoned, left a manifest risk that "some of the
information accepted in confidence may [have been] erroneous, or . . .
misinterpreted," id., at 359. As a basis for a death sentence, Gardner
teaches, information unexposed to adversary testing does not qualify
as reliable. See ibid. The Gardner Court vacated the defendant's
sentence, concluding that he "was denied due process of law when the
death [penalty] was imposed, at least in part, on the basis of
information which he had no opportunity to deny or explain."  Id., at
362.

Urging that Gardner fails to "dictate" a decision for Gray here, the
Commonwealth relies on the Fourth Circuit's reasoning to this effect:
Gardner was a case about "secrecy"; Gray's case is about "surprise."
See 58 F. 3d, at 65. Therefore, Gray seeks an extension, not an
application, of Gardner, see Brief for Respondent 30, in Teague
parlance, a "new rule," Brief for Respondent 31. It would be an
impermissible "leap," the Fourth Circuit maintained, to equate to a
failure to disclose, a disclosure in fact made, "but allegedly so late as
to be unfair."  58 F. 3d, at 65.

Teague is not the straightjacket the Commonwealth misunderstands it
to be. Teague requires federal courts to decide a habeas petitioner's
constitutional claims according to the "law prevailing at the time [his]
conviction became final."  Teague, 489 U. S., at 306 (plurality
opinion) (internal quotation marks omitted). But Teague does not bar
federal habeas courts from applying, in "a myriad of factual contexts,"
law that is settled--here, the right to a meaningful chance to defend
against or explain charges pressed by the State. See Wright v. West,
505 U. S. 277, 309 (1992) (KENNEDY, J., concurring in judgment)
("Where the beginning point is a rule of this general application, a rule
designed for the specific purpose of evaluating a myriad of factual
contexts, it will be the infrequent case that yields a result so novel that
it forges a new rule, one not dictated by precedent.").

The District Court did not "forg[e] a new rule," ibid., by holding, on
the facts of this case, that Gray was denied a meaningful opportunity
to challenge the Sorrell murders evidence. Ordinarily, it is incumbent
upon defense counsel, after receiving adequate notice of the triable
issues, to pursue whatever investigation is needed to rebut relevant
evidence the State may introduce. Here, however, in keeping with the
practice approved by Virginia's highest court, see supra, at 1-2, and
n. 1, the prosecutor expressly delineated the scope and character of the
evidence he would introduce with respect to the Sorrell murders:
nothing other than statements Gray himself allegedly made, see supra,
at 3. Gray's lawyers reasonably relied on the prosecutor's
"statements only" assurance by forgoing inquiry into the details of the
Sorrell crimes. Resource-consuming investigation, they responsibly
determined, was unnecessary to cast doubt on the veracity of inmate
"snitch" testimony, the only evidence the prosecutor initially said he
would offer.

Gray's lawyers were undeniably caught short by the prosecutor's
startling announcement, the night before the penalty phase was to
begin, that he would in effect put on a "mini-trial" of the Sorrell
murders. At that point, Gray's lawyers could not possibly conduct
the investigation and preparation necessary to counter the prosecutor's
newly announced evidence. Thus, at the penalty trial, defense counsel
were reduced nearly to the role of spectators. Lacking proof, later
uncovered, that "strongly suggested" Timothy Sorrell, not Gray, was
the actual killer, App. 350-351, Gray's lawyers could mount only a
feeble cross-examination of Detective Slezak; counsel simply inquired
of the detective whether highly-publicized crimes could prompt
"copycat" crimes, see id., at 37-40. Gray's lawyers had no questions
at all for Doctor Presswalla, the medical examiner who testified about
the Sorrell autopsies. Id., at 47.11

In sum, the record shows, beyond genuine debate, that Gray was not
afforded a "meaningful" opportunity to defend against the additional
Sorrell murders evidence. The fatal infection present in Gardner
infects this case as well: defense counsel were effectively deprived of
an opportunity to challenge the "accuracy or materiality" of
information relied on in imposing the death sentence. Gardner, 430
U. S., at 356. Unexposed to adversary testing, the Sorrell murders
evidence "carrie[d] no assurance of reliability." App. 351. The
"debate between adversaries," valued in our system of justice for its
contribution "to the truth-seeking function of trials," Gardner, 430 U.
S., at 360, was precluded here by the prosecutor's eve-of-sentencing
shift, and the trial court's tolerance of it. To hold otherwise "would
simply be to ignore actualities."  Powell v. Alabama, 287 U. S. 45,
58 (1932).12

*    *    *

For the reasons stated, I conclude that the District Court's decision
vacating Gray's death sentence did not rest on a "new rule" of
constitutional law. I would therefore reverse the judgment of the
Court of Appeals, and respectfully dissent from this Court's decision.


ENDNOTES FOR OPINION

1 The prosecutor introduced this testimony as evidence of petitioner's
future dangerousness. The prosecutor also introduced into evidence
petitioner's criminal record, which included 13 felony convictions, at
least 9 of which were for crimes of violence, including armed robbery
and malicious wounding. Petitioner's record revealed that he had
locked a restaurant's  employees in a food freezer while robbing the
restaurant, and threatened the lives of two persons other than
McClelland. Gray v. Commonwealth, 233 Va. 313, 353, 356 S. E.
2d 157, 179, cert. denied, 484 U. S. 873 (1987).

2 The other five subclaims are not relevant to our review.

3 When petitioner did object later, at the start of the penalty phase, to
the admission of all the Sorrell murder evidence, counsel conceded
that he would have been prepared to refute such evidence if it had
consisted only of testimony by Tucker or petitioner's fellow inmates
that petitioner had admitted to killing the Sorrells. See 18 Record 722,
780.

4 The District Court described petitioners' counsel as having made a
"plea for additional time to prepare."  App. 343. The Court of
Appeals found this plea insufficient to have legal effect in court: "If the
defense felt unprepared to undertake effective cross-examination, one
would think a formal motion for continuance would have been
forthcoming, but none was ever made; counsel moved only that the
evidence be excluded."  Gray v. Thompson, 58 F. 3d 59, 64 (CA4
1995). We agree with the Court of Appeals.


ENDNOTES FOR JUSTICE GINSBURG DISSENT

1 This request was made pursuant to Peterson v. Commonwealth, 225
Va. 289, 302 S. E. 2d 520 (1983), which instructed that, under
Virginia law, the "preferred practice" in capital trials "is to make
known to [the defendant] before trial the evidence that is to be adduced
at the penalty stage if he is found guilty."  Id., at 298, 302 S. E. 2d, at
526.

2 That Gray had not been convicted of killing the Sorrells would not,
under Virginia law, bar admission of evidence relating to those crimes
during the penalty phase of his trial. One of Virginia's two
aggravating circumstances requires the jury to determine whether
"there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing serious threat to society."
Va. Code Ann. Section 19.2-264.2 (1995). The Virginia Supreme
Court has held that "evidence of prior unadjudicated criminal conduct .
. . may be used in the penalty phase to prove the defendant's
propensity to commit criminal acts of violence in the future."  Watkins
v. Commonwealth, 229 Va. 469, 488, 331 S. E. 2d 422, 436 (1985).

3 As the District Court suggested, in one respect this version of events
is implausible. The McClelland murder occurred in May 1985, some
six months after the Sorrells had been killed. No newspaper from
May 1985 containing a photograph of Lisa Sorrell was ever
introduced into evidence. See App. 343.

4 The District Court noted, in this regard, that an investigator engaged
by Gray's federal habeas counsel had run a driving test indicating that
"Coleman Gray could not have performed the Sorrell murders on his
wife's dinner hour, as the prosecutor speculated."  Id., at 345, n. 5.

5 Police designated Mr. Sorrell as the sole suspect on evidence they
sent to crime labs for analysis. Id., at 344.

6 Asked to describe what about Mr. Sorrell's demeanor made him
suspicious, Slezak testified: "I don't know how to describe it other
than to say that it was not what you would expect to find in a situation
like that. He just seemed defensive."  Id., at 186.

7 By contrast, police never established Gray's supposed motive for
killing the Sorrells. Lisa was found with her jewelry (a necklace and
gold earrings) undisturbed, as well as cash and a postal money order
for $280.00, id., at 316, suggesting that robbery was not the
perpetrator's motive, id., at 317.

8 Despite defense counsel's pretrial request for all exculpatory
evidence pursuant to Brady v. Maryland, 373 U. S. 83 (1963), the
prosecutor never disclosed the evidence incriminating Timothy
Sorrell. Gray presented a Brady claim in his federal habeas petition,
but the District Court noted that the claim had not been raised in state
court, and therefore held it procedurally barred. 1 J. A. 194.

9 After Gray's trial, the local prosecutor reportedly stated in an
affidavit that Mr. Sorrell was no longer a suspect. See 2 id., at 927
(news report in The Virginian-Pilot, Jan. 7, 1986, p. D1).

10 Cf. In re Gault, 387 U. S. 1, 33 (1967) (notice to parents the night
before a juvenile delinquency hearing was constitutionally inadequate;
due process requires that notice "be given sufficiently in advance of
scheduled court proceedings so that reasonable opportunity to prepare
will be afforded"); Powell v. Alabama, 287 U. S. 45, 58 (1932)
(defense counsel appointed the morning of trial could not satisfy the
constitutional requirement because counsel lacked opportunity to
investigate the case; Court observed that "[t]o decide otherwise, would
simply be to ignore actualities").

11 The Court attaches weight to the failure of Gray's lawyers to ask
explicitly for deferral of the penalty phase. See ante, at 14, 16. It is
uncontested that defense counsel made no formal motion for a
continuance. But as the District Court described the morning-of-trial
episode, counsel "plea[ded] for additional time to prepare."  App.
343. And as earlier noted, see supra, at 4-5, counsel was explicit
about the dilemma confronting the defense: "We are not prepared to
try the Sorrell murder today."  4 J. A. 2065. The Court's suggestion
that "this plea [was] insufficient to have legal effect in court," ante, at
14, n. 4, is puzzling. Neither the Court, the Fourth Circuit, nor the
Commonwealth has cited any Virginia authority for this proposition.
Cf. Smith v. Estelle, 602 F. 2d 694, 701, n. 8 (CA5 1979) ("the state
points us to no rule of Texas law saying that moving for a continuance
is the only way to object to surprise"), aff'd on other grounds, 451 U.
S. 454 (1981). Given the potency of the evidence in question, it is
difficult to comprehend the Court's speculation that defense counsel,
for "tactical" reasons, may have wanted only exclusion and not more
time. Compare ante, at 16, with Tr. of Oral Arg. 11 (Counsel for
Petitioner urged that if a trial judge is asked, "please stop this from
happening . . . , it violates my [client's] right to a fair trial," the
existence of that right should not turn on whether counsel next says,
"please exclude this evidence, as opposed to please give me more
time").

12 Weatherford v. Bursey, 429 U. S. 545 (1977), featured by the
Court, see ante, at 15, 16-17, hardly controls this case. There, the
State's witness, and not the prosecutor, misled defense counsel. 429
U. S., at 560. Furthermore, Weatherford did not involve the penalty
phase of a capital trial, a stage at which reliability concerns are most
vital. Finally, the defendant in Weatherford did not object at trial to
the surprise witness, and did not later show how he was prejudiced by
the surprise. Id., at 561.