WILLIAMS v. TAYLOR, WARDEN

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420 OCTOBER TERM, 1999
Syllabus
WILLIAMS v. TAYLOR, WARDEN
certiorari to the united states court of appeals for
the fourth circuit
No. 99–6615. Argued February 28, 2000—Decided April 18, 2000
After 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 exami-
nation 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, how-
ever, 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 re-
quirements. 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 dili-
gent 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 un-
less there is lack of diligence, or some greater fault, attributable to the
prisoner or his counsel. The statute does not bar the evidentiary hear-
ing petitioner seeks on his juror bias and prosecutorial misconduct
claims, but bars a hearing on his Brady claim because he “failed to

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develop” that claim’s factual basis in state court and concedes his inabil-
ity 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 effec-
tive 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, contempo-
rary, common meaning, absent an indication Congress intended them to
bear some different import. E. g., Walters v. Metropolitan Ed. Enter-
prises, 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 in-
tended 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 argu-
ments for a “no-fault” reading: that treating the prisoner’s lack of dili-
gence 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 pris-
oner 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 be-
fore 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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422 WILLIAMS v. TAYLOR
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importance, yet failed to investigate in anything but a cursory manner,
this Court is not satisfied with petitioner’s explanation that, although
an investigator for his federal habeas counsel discovered the report in
Cruse’s court file, his state counsel had not seen the report when he
reviewed the same file. Because this constitutes a failure to develop
the factual basis of petitioner’s Brady claim in state court, this Court
must determine if the requirements in the balance of § 2254(e)(2) are
satisfied so that petitioner’s failure is excused. Subparagraph (B) of
§ 2254(e)(2) conditions a hearing upon a showing, by clear and convincing
evidence, that no reasonable factfinder would have found petitioner
guilty of capital murder but for the alleged constitutional error. Peti-
tioner concedes he cannot make this showing, and the case has been
presented to this Court on that premise. Accordingly, the Fourth
Circuit’s judgment barring an evidentiary hearing on this claim is af-
firmed. Pp. 437–440.
(d) However, petitioner has met the burden of showing he was dili-
gent in efforts to develop the facts supporting his juror bias and prose-
cutorial misconduct claims in state court. Those claims are based on
two questions posed by the trial judge at voir dire. First, the judge
asked prospective jurors whether any of them was related to, inter
alios, Deputy Sheriff Meinhard, who investigated the crime scene, inter-
rogated Cruse, and later became the prosecution’s first witness. Venire
member Stinnett, who had divorced Meinhard after a 17-year marriage
and four children, remained silent, thereby indicating the answer to the
question was “no.” Second, the judge asked whether any prospective
juror had ever been represented by any of the attorneys in the case,
including prosecutor Woodson. Stinnett again said nothing, although
Woodson had represented her during her divorce from Meinhard.
Later, Woodson admitted he knew Stinnett and Meinhard had been mar-
ried and divorced, but stated that he did not consider divorced people
to be “related” and that he had no recollection of having been involved
as a private attorney in the divorce. Stinnett’s silence after the first
question could suggest to the factfinder an unwillingness to be forth-
coming; this in turn could bear on her failure to disclose that Woodson
had been her attorney. Moreover, her failure to divulge material infor-
mation in response to the second question was misleading as a matter
of fact because Woodson was her counsel. Coupled with Woodson’s own
reticence, these omissions as a whole disclose the need for an evidentiary
hearing. This Court disagrees with the Fourth Circuit’s conclusion that
petitioner’s state habeas counsel should have discovered Stinnett’s rela-
tionship to Meinhard and Woodson. The trial record contains no evi-
dence which would have put a reasonable attorney on notice that Stin-
nett’s nonresponse was a deliberate omission of material information,

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Syllabus
and counsel had no reason to believe Stinnett had been married to
Meinhard or been represented by Woodson. Moreover, because state
postconviction relief was no longer available at the time the facts came
to light, it would have been futile for petitioner to return to the Virginia
courts, so that he cannot be said to have failed to develop the facts in
state court by reason of having neglected to pursue remedies available
under Virginia law. The foregoing analysis establishes cause for any
procedural default petitioner may have committed in not presenting
these claims to the Virginia courts in the first instance. Questions re-
garding the standard for determining the prejudice that petitioner must
establish to obtain relief on these claims can be addressed by the lower
courts during further proceedings. These courts should take due ac-
count of the District Court’s earlier decision to grant an evidentiary
hearing based in part on its belief that Stinnett deliberately lied on voir
dire. Pp. 440–444.
189 F. 3d 421, affirmed in part, reversed in part, and remanded.
Kennedy, J., delivered the opinion for a unanimous Court.
John H. Blume argued the cause for petitioner. With him
on the briefs were Keir M. Weyble, Barbara L. Hartung,
by appointment of the Court, 528 U. S. 1044, and James
E. Moore.
Donald R. Curry, Senior Assistant Attorney General of
Virginia, argued the cause for respondent. With him on the
brief was Mark L. Earley, Attorney General.*
*A brief of amici curiae urging affirmance was filed for the State of
California et al. by Bill Lockyer, Attorney General of California, David P.
Druliner, Chief Assistant Attorney General, John R. Gorey, Acting Senior
Assistant Attorney General, and Donald E. De Nicola, Deputy Attorney
General, and by the Attorneys General for their respective States as fol-
lows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of
Arkansas, M. Jane Brady of Delaware, Robert A. Butterworth of Florida,
Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modi-
sett of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of
Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek
of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Ne-
vada, Michael F. Easley of North Carolina, W. A. Drew Edmondson of
Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania,
Charles M. Condon of South Carolina, Mark Barnett of South Dakota,

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424 WILLIAMS v. TAYLOR
Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
Petitioner Michael Wayne Williams received a capital sen-
tence for the murders of Morris Keller, Jr., and Keller’s wife,
Mary Elizabeth. Petitioner later sought a writ of habeas
corpus in federal court. Accompanying his petition was a
request for an evidentiary hearing on constitutional claims
which, he alleged, he had been unable to develop in state-
court proceedings. The question in this case is whether 28
U. S. C. § 2254(e)(2) (1994 ed., Supp. III), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, bars the evidentiary hearing peti-
tioner seeks. If petitioner “has failed to develop the factual
basis of [his] claim[s] in State court proceedings,” his case is
subject to § 2254(e)(2), and he may not receive a hearing be-
cause he concedes his inability to satisfy the statute’s further
stringent conditions for excusing the deficiency.
I
On the evening of February 27, 1993, Verena Lozano James
dropped off petitioner and his friend Jeffrey Alan Cruse near
a local store in a rural area of Cumberland County, Virginia.
The pair planned to rob the store’s employees and customers
using a .357 revolver petitioner had stolen in the course of
a quadruple murder and robbery he had committed two
months earlier. Finding the store closed, petitioner and
Cruse walked to the Kellers’ home. Petitioner was familiar
with the couple, having grown up down the road from where
they lived. He told Cruse they would have “a couple thou-
sand dollars.” App. 78. Cruse, who had been holding the
.357, handed the gun to petitioner and knocked on the door.
When Mr. Keller opened the door, petitioner pointed the gun
at him as the two intruders forced their way inside. Peti-
tioner and Cruse forced Mr. Keller to the kitchen, where
John Cornyn of Texas, Jan Graham of Utah, and Christine O. Gregoire
of Washington.

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Opinion of the Court
they discovered Mrs. Keller. Petitioner ordered the cap-
tives to remove their clothing. While petitioner kept guard
on the Kellers, Cruse searched the house for money and
other valuables. He found a .38-caliber handgun and bul-
lets. Upon Cruse’s return to the kitchen, petitioner had
Cruse tie their captives with telephone cords. The Kellers
were confined to separate closets while the intruders contin-
ued ransacking the house.
When they gathered all they wanted, petitioner and Cruse
decided to rape Mrs. Keller. With Mrs. Keller pleading with
them not to hurt her or her husband, petitioner raped her.
Cruse did the same. Petitioner then ordered the Kellers to
shower and dress and “take a walk” with him and Cruse.
Id., at 97. As they were leaving, petitioner told Mrs. Keller
he and Cruse were going to burn down the house. Mrs. Kel-
ler begged to be allowed to retrieve her marriage license,
which she did, guarded by petitioner.
As the prosecution later presented the case, details of the
murders were as follows. Petitioner, now carrying the .38,
and Cruse, carrying the .357, took the Kellers to a thicket
down a dirt road from the house. With petitioner standing
behind Mr. Keller and Cruse behind Mrs. Keller, petitioner
told Cruse, “We’ll shoot at the count of three.” Id., at 103.
At the third count, petitioner shot Mr. Keller in the head,
and Mr. Keller collapsed to the ground. Cruse did not shoot
Mrs. Keller at the same moment. Saying “he didn’t want to
leave no witnesses,” petitioner urged Cruse to shoot Mrs.
Keller. Ibid. Cruse fired one shot into her head. Despite
his wound, Mr. Keller stood up, but petitioner shot him a
second time. To ensure the Kellers were dead, petitioner
shot each of them two or three more times.
After returning to the house and loading the stolen prop-
erty into the Kellers’ jeep, petitioner and Cruse set fire to
the house and drove the jeep to Fredericksburg, Virginia,
where they sold some of the property. They threw the re-

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426 WILLIAMS v. TAYLOR
Opinion of the Court
maining property and the .357 revolver into the Rappahan-
nock River and set fire to the jeep.
Pursuing a lead from Verena James, the police interviewed
Cruse about the fire at the Kellers’ home. Petitioner had
fled to Florida. Cruse provided no useful information until
the police discovered the bodies of the victims, at which point
Cruse consulted counsel. In a plea bargain Cruse agreed to
disclose the details of the crimes in exchange for the Com-
monwealth’s promise not to seek the death penalty against
him. Cruse described the murders but made no mention of
his own act of rape. When the Commonwealth discovered
the omission, it revoked the plea agreement and charged
Cruse with capital murder.
Petitioner was arrested and charged with robbery, abduc-
tion, rape, and the capital murders of the Kellers. At trial
in January 1994, Cruse was the Commonwealth’s main wit-
ness. He recounted the murders as we have just described.
Cruse testified petitioner raped Mrs. Keller, shot Mr. Keller
at least twice, and shot Mrs. Keller several times after she
had been felled by Cruse’s bullet. He also described peti-
tioner as the mastermind of the murders. The circum-
stances of the first plea agreement between the Common-
wealth and Cruse and its revocation were disclosed to the
jury. Id., at 158–159. Testifying on his own behalf, peti-
tioner admitted he was the first to shoot Mr. Keller and it
was his idea to rob the store and set fire to the house. He
denied, however, raping or shooting Mrs. Keller, and claimed
to have shot Mr. Keller only once. Petitioner blamed Cruse
for the remaining shots and disputed some other parts of
Cruse’s testimony.
The jury convicted petitioner on all counts. After consid-
ering the aggravating and mitigating evidence presented
during the sentencing phase, the jury found the aggravating
circumstances of future dangerousness and vileness of the
crimes and recommended a death sentence. The trial court
imposed the recommended sentence. The Supreme Court

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Opinion of the Court
of Virginia affirmed petitioner’s convictions and sentence,
Williams v. Commonwealth, 248 Va. 528, 450 S. E. 2d 365
(1994), and we denied certiorari, Williams v. Virginia, 515
U. S. 1161 (1995). In a separate proceeding, Cruse pleaded
guilty to the capital murder of Mrs. Keller and the first-
degree murder of Mr. Keller. After the prosecution asked
the sentencing court to spare his life because of his tes-
timony against petitioner, Cruse was sentenced to life
imprisonment.
Petitioner filed a habeas petition in state court alleging, in
relevant part, that the Commonwealth failed to disclose a
second agreement it had reached with Cruse after the first
one was revoked. The new agreement, petitioner alleged,
was an informal undertaking by the prosecution to rec-
ommend a life sentence in exchange for Cruse’s testimony.
Finding no merit to petitioner’s claims, the Virginia Supreme
Court dismissed the habeas petition, and we again denied
certiorari. Williams v. Netherland, 519 U. S. 877 (1996).
Petitioner filed a habeas petition in the United States Dis-
trict Court for the Eastern District of Virginia on November
20, 1996. In addition to his claim regarding the alleged un-
disclosed agreement between the Commonwealth and Cruse,
the petition raised three claims relevant to questions now
before us. First, petitioner claimed the prosecution had vio-
lated Brady v. Maryland, 373 U. S. 83 (1963), in failing to
disclose a report of a confidential pretrial psychiatric exami-
nation of Cruse. Second, petitioner alleged his trial was
rendered unfair by the seating of a juror who at voir dire
had not revealed possible sources of bias. Finally, petitioner
alleged one of the prosecutors committed misconduct in fail-
ing to reveal his knowledge of the juror’s possible bias.
The District Court granted an evidentiary hearing on the
undisclosed agreement and the allegations of juror bias and
prosecutorial misconduct but denied a hearing on the psychi-
atric report. Before the evidentiary hearing could be held,
the Commonwealth filed an application for an emergency

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stay and a petition for a writ of mandamus and prohibition
in the Court of Appeals. The Commonwealth argued that
petitioner’s evidentiary hearing was prohibited by 28 U. S. C.
§ 2254(e)(2) (1994 ed., Supp. III). A divided panel of the
Court of Appeals granted the emergency stay and remanded
for the District Court to apply the statute to petitioner’s
request for an evidentiary hearing. 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.
The Court of Appeals affirmed. It first considered peti-
tioner’s argument that § 2254(e)(2) did not apply to his case
because he had been diligent in attempting to develop his
claims in state court. Citing its decision in Cardwell v.
Greene, 152 F. 3d 331 (CA4), cert. denied, 525 U. S. 1037
(1998), the Court of Appeals agreed with petitioner that
§ 2254(e)(2) would not apply if he had exercised diligence in
state court. The court held, however, that petitioner had
not been diligent and so had “failed to develop” in state court
the factual bases of his Brady, juror bias, and prosecutorial
misconduct claims. See 189 F. 3d 421, 426 (CA4 1999). The
Court of Appeals concluded 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. The Court of Appeals ruled in the alternative that,
even if § 2254(e)(2) did not apply, petitioner would be ineligi-
ble for an evidentiary hearing under the cause and prejudice
standard of pre-AEDPA law. See id., at 428.
Addressing petitioner’s claim of an undisclosed informal
agreement between the Commonwealth and Cruse, the
Court of Appeals rejected it on the merits under 28 U. S. C.
§ 2254(d)(1) and, as a result, did not consider whether
§ 2254(e)(2) applied. See 189 F. 3d, at 429.
On October 18, 1999, petitioner filed an application for stay
of execution and a petition for a writ of certiorari. On Octo-

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Opinion of the Court
ber 28, we stayed petitioner’s execution and granted certio-
rari to decide whether § 2254(e)(2) precludes him from receiv-
ing an evidentiary hearing on his claims. See 528 U. S. 960
(1999). We now affirm in part and reverse in part.
II
A
Petitioner filed his federal habeas petition after AEDPA’s
effective date, so the statute applies to his case. See Lindh
v. Murphy, 521 U. S. 320, 326–327 (1997). The Common-
wealth argues AEDPA bars petitioner from receiving an
evidentiary hearing on any claim whose factual basis was
not developed in state court, absent narrow circumstances
not applicable here. Petitioner did not develop, or raise, his
claims of juror bias, prosecutorial misconduct, or the prose-
cution’s alleged Brady violation regarding Cruse’s psychiat-
ric report until he filed his federal habeas petition. Peti-
tioner explains he could not have developed the claims
earlier because he was unaware, through no fault of his own,
of the underlying facts. As a consequence, petitioner con-
tends, AEDPA erects no barrier to an evidentiary hearing
in federal court.
Section 2254(e)(2), the provision which controls whether
petitioner may receive an evidentiary hearing in federal
district court on the claims that were not developed in the
Virginia courts, becomes the central point of our analysis.
It provides as follows:
“If the 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 shows that—
“(A) the claim relies on—
“(i) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that
was previously unavailable; or

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“(ii) a factual predicate that could not have been pre-
viously discovered through the exercise of due dili-
gence; and
“(B) the facts underlying the claim would be sufficient
to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying
offense.”
By the terms of its opening clause the statute applies only
to prisoners who have “failed to develop the factual basis of
a claim in State court proceedings.” If the prisoner has
failed to develop the facts, an evidentiary hearing cannot be
granted unless the prisoner’s case meets the other conditions
of § 2254(e)(2). Here, petitioner concedes his case does not
comply with § 2254(e)(2)(B), see Brief for Petitioner 25, so he
may receive an evidentiary hearing only if his claims fall out-
side the opening clause.
There was no hearing in state court on any of the claims
for which petitioner now seeks an evidentiary hearing.
That, says the Commonwealth, is the end of the matter. In
its view petitioner, whether or not through his own fault or
neglect, still “failed to develop the factual basis of a claim in
State court proceedings.” Petitioner, on the other hand,
says the phrase “failed to develop” means lack of diligence in
developing the claims, a defalcation he contends did not occur
since he made adequate efforts during state-court proceed-
ings to discover and present the underlying facts. The
Court of Appeals agreed with petitioner’s interpretation of
§ 2254(e)(2) but believed petitioner had not exercised enough
diligence to avoid the statutory bar. See 189 F. 3d, at 426.
We agree with petitioner and the Court of Appeals that
“failed to develop” implies some lack of diligence; but, unlike
the Court of Appeals, we find no lack of diligence on petition-
er’s part with regard to two of his three claims.

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B
We start, as always, with the language of the statute. See
United States v. Ron Pair Enterprises, Inc., 489 U. S. 235,
241 (1989). Section 2254(e)(2) begins with a conditional
clause, “[i]f the applicant has failed to develop the factual
basis of a claim in State court proceedings,” which directs
attention to the prisoner’s efforts in state court. We ask
first whether the factual basis was indeed developed in state
court, a question susceptible, in the normal course, of a sim-
ple yes or no answer. Here the answer is no.
The Commonwealth would have the analysis begin and
end there. Under its no-fault reading of the statute, if there
is no factual development in the state court, the federal ha-
beas court may not inquire into the reasons for the default
when determining whether the opening clause of § 2254(e)(2)
applies. We do not agree with the Commonwealth’s inter-
pretation of the word “failed.”
We do not deny “fail” is sometimes used in a neutral way,
not importing fault or want of diligence. So the phrase “We
fail to understand his argument” can mean simply “We can-
not understand his argument.” This is not the sense in
which the word “failed” is used here, however.
We give the words of a statute their “ ‘ordinary, contempo-
rary, common meaning,’ ” absent an indication Congress in-
tended them to bear some different import. Walters v. Met-
ropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207 (1997)
(quoting Pioneer Investment Services Co. v. Brunswick As-
sociates Ltd. Partnership, 507 U. S. 380 (1993)). See also
Bailey v. United States, 516 U. S. 137, 141 (1995). In its cus-
tomary and preferred sense, “fail” connotes some omission,
fault, or negligence on the part of the person who has failed
to do something. See, e. g., Webster’s New International
Dictionary 910 (2d ed. 1939) (defining “fail” as “to be want-
ing; to fall short; to be or become deficient in any measure
or degree,” and “failure” as “a falling short,” “a deficiency or

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432 WILLIAMS v. TAYLOR
Opinion of the Court
lack,” and an “[o]mission to perform”); Webster’s New Inter-
national Dictionary 814 (3d ed. 1993) (“to leave some possible
or expected action unperformed or some condition un-
achieved”). See also Black’s Law Dictionary 594 (6th ed.
1990) (defining “fail” as “[f]ault, negligence, or refusal”). To
say a person has failed in a duty implies he did not take the
necessary steps to fulfill it. He is, as a consequence, at fault
and bears responsibility for the failure. In this sense, a per-
son is not at fault when his diligent efforts to perform an act
are thwarted, for example, by the conduct of another or by
happenstance. Fault lies, in those circumstances, either
with the person who interfered with the accomplishment of
the act or with no one at all. We conclude Congress used
the word “failed” in the sense just described. Had Congress
intended a no-fault standard, it would have had no difficulty
in making its intent plain. It would have had to do no more
than use, in lieu of the phrase “has failed to,” the phrase
“did not.”
Under the opening clause of § 2254(e)(2), a failure to de-
velop the factual basis of a claim is not established unless
there is lack of diligence, or some greater fault, attributable
to the prisoner or the prisoner’s counsel. In this we agree
with the Court of Appeals and with all other courts of
appeals which have addressed the issue. See, e. g., Baja v.
Ducharme, 187 F. 3d 1075, 1078–1079 (CA9 1999); Miller v.
Champion, 161 F. 3d 1249, 1253 (CA10 1998); Cardwell, 152
F. 3d, at 337; McDonald v. Johnson, 139 F. 3d 1056, 1059
(CA5 1998); Burris v. Parke, 116 F. 3d 256, 258 (CA7 1997);
Love v. Morton, 112 F. 3d 131, 136 (CA3 1997).
Our interpretation of § 2254(e)(2)’s opening clause has sup-
port in Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992), a case
decided four years before AEDPA’s enactment. In Keeney,
a prisoner with little knowledge of English sought an eviden-
tiary hearing in federal court, alleging his nolo contendere
plea to a manslaughter charge was not knowing and volun-
tary because of inaccuracies in the translation of the plea

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proceedings. The prisoner had not developed the facts of
his claim in state collateral proceedings, an omission caused
by the negligence of his state postconviction counsel. See
id., at 4, 8–9. The Court characterized this as the “prison-
er’s failure to develop material facts in state court.” Id.,
at 8. We required the prisoner to demonstrate cause and
prejudice excusing the default before he could receive a
hearing on his claim, ibid., unless the prisoner could “show
that a fundamental miscarriage of justice would result from
failure to hold a federal evidentiary hearing,” id., at 12.
Section 2254(e)(2)’s initial inquiry into whether “the appli-
cant has failed to develop the factual basis of a claim in State
court proceedings” echoes Keeney’s language regarding “the
state prisoner’s failure to develop material facts in state
court.” In Keeney, the Court borrowed the cause and prej-
udice standard applied to procedurally defaulted claims, see
Wainwright v. Sykes, 433 U. S. 72, 87–88 (1977), deciding
there was no reason “to distinguish between failing to prop-
erly assert a federal claim in state court and failing in state
court to properly develop such a claim.” Keeney, supra, at
8. As is evident from the similarity between the Court’s
phrasing in Keeney and the opening clause of § 2254(e)(2),
Congress intended to preserve at least one aspect of
Keeney’s holding: prisoners who are at fault for the defi-
ciency in the state-court record must satisfy a heightened
standard to obtain an evidentiary hearing. To be sure, in
requiring that prisoners who have not been diligent satisfy
§ 2254(e)(2)’s provisions rather than show cause and preju-
dice, and in eliminating a freestanding “miscarriage of jus-
tice” exception, Congress raised the bar Keeney imposed on
prisoners who were not diligent in state-court proceedings.
Contrary to the Commonwealth’s position, however, there is
no basis in the text of § 2254(e)(2) to believe Congress used
“fail” in a different sense than the Court did in Keeney or
otherwise intended the statute’s further, more stringent re-
quirements to control the availability of an evidentiary hear-

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ing in a broader class of cases than were covered by Keeney’s
cause and prejudice standard.
In sum, the opening clause of § 2254(e)(2) codifies Keeney’s
threshold standard of diligence, so that prisoners who would
have had to satisfy Keeney’s test for excusing the deficiency
in the state-court record prior to AEDPA are now controlled
by § 2254(e)(2). When the words of the Court are used in a
later statute governing the same subject matter, it is re-
spectful of Congress and of the Court’s own processes to give
the words the same meaning in the absence of specific direc-
tion to the contrary. See Lorillard v. Pons, 434 U. S. 575,
581 (1978) (“[W]here . . . Congress adopts a new law incorpo-
rating sections of a prior law, Congress normally can be pre-
sumed to have had knowledge of the interpretation given to
the incorporated law, at least insofar as it affects the new
statute”). See also Cottage Savings Assn. v. Commissioner,
499 U. S. 554, 562 (1991).
Interpreting § 2254(e)(2) so that “failed” requires lack of
diligence or some other fault avoids putting it in needless
tension with § 2254(d). A prisoner who developed his claim
in state court and can prove the state court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su-
preme Court of the United States,” is not barred from ob-
taining relief by § 2254(d)(1). See Williams v. Taylor, ante,
at 412–413 (majority opinion). If the opening clause of
§ 2254(e)(2) covers a request for an evidentiary hearing on a
claim which was pursued with diligence but remained unde-
veloped in state court because, for instance, the prosecution
concealed the facts, a prisoner lacking clear and convincing
evidence of innocence could be barred from a hearing on
the claim even if he could satisfy § 2254(d). See 28 U. S. C.
§ 2254(e)(2)(B). The “failed to develop” clause does not bear
this harsh reading, which would attribute to Congress a pur-
pose or design to bar evidentiary hearings for diligent pris-
oners with meritorious claims just because the prosecution’s

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conduct went undetected in state court. We see no indica-
tion that Congress by this language intended to remove the
distinction between a prisoner who is at fault and one who
is not.
The Commonwealth argues a reading of “failed to de-
velop” premised on fault empties § 2254(e)(2)(A)(ii) of its
meaning. To treat the prisoner’s lack of diligence in state
court as a prerequisite for application of § 2254(e)(2), the
Commonwealth contends, renders a nullity of the statute’s
own diligence provision requiring the prisoner to show “a
factual predicate [of his claim] could not have been pre-
viously discovered through the exercise of due diligence.”
§ 2254(e)(2)(A)(ii). We disagree.
The Commonwealth misconceives the inquiry mandated
by the opening clause of § 2254(e)(2). The question is not
whether the facts could have been discovered but instead
whether the prisoner was diligent in his efforts. The pur-
pose of the fault component of “failed” is to ensure the pris-
oner undertakes his own diligent search for evidence. Dili-
gence for purposes of the opening clause depends upon
whether the prisoner made a reasonable attempt, in light of
the information available at the time, to investigate and pur-
sue claims in state court; it does not depend, as the Common-
wealth would have it, upon whether those efforts could have
been successful. Though lack of diligence will not bar an
evidentiary hearing if efforts to discover the facts would
have been in vain, see § 2254(e)(2)(A)(ii), and there is a con-
vincing claim of innocence, see § 2254(e)(2)(B), only a prisoner
who has neglected his rights in state court need satisfy these
conditions. The statute’s later reference to diligence per-
tains to cases in which the facts could not have been dis-
covered, whether there was diligence or not. In this impor-
tant respect § 2254(e)(2)(A)(ii) bears a close resemblance to
(e)(2)(A)(i), which applies to a new rule that was not available
at the time of the earlier proceedings. Cf. Gutierrez v. Ada,
528 U. S. 250, 255 (2000) (“[W]ords and people are known by

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their companions”). Cf. also United States v. Locke, ante, at
105. In these two parallel provisions Congress has given
prisoners who fall within § 2254(e)(2)’s opening clause an op-
portunity to obtain an evidentiary hearing where the legal
or factual basis of the claims did not exist at the time of
state-court proceedings.
We are not persuaded by the Commonwealth’s further ar-
gument that anything less than a no-fault understanding of
the opening clause is contrary to AEDPA’s purpose to fur-
ther the principles of comity, finality, and federalism. There
is no doubt Congress intended AEDPA to advance these doc-
trines. Federal habeas corpus principles must inform and
shape the historic and still vital relation of mutual respect
and common purpose existing between the States and the
federal courts. In keeping this delicate balance we have
been careful to limit the scope of federal intrusion into state
criminal adjudications and to safeguard the States’ interest
in the integrity of their criminal and collateral proceedings.
See, e. g., Coleman v. Thompson, 501 U. S. 722, 726 (1991)
(“This is a case about federalism. It concerns the respect
that federal courts owe the States and the States’ procedural
rules when reviewing the claims of state prisoners in federal
habeas corpus”); McCleskey v. Zant, 499 U. S. 467, 493 (1991)
(“[T]he doctrines of procedural default and abuse of the writ
are both designed to lessen the injury to a State that results
through reexamination of a state conviction on a ground that
the State did not have the opportunity to address at a prior,
appropriate time; and both doctrines seek to vindicate the
State’s interest in the finality of its criminal judgments”).
It is consistent with these principles to give effect to Con-
gress’ intent to avoid unneeded evidentiary hearings in fed-
eral habeas corpus, while recognizing the statute does not
equate prisoners who exercise diligence in pursuing their
claims with those who do not. Principles of exhaustion are
premised upon recognition by Congress and the Court that
state judiciaries have the duty and competence to vindicate

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rights secured by the Constitution in state criminal proceed-
ings. Diligence will require in the usual case that the pris-
oner, at a minimum, seek an evidentiary hearing in state
court in the manner prescribed by state law. “Comity . . .
dictates that when a prisoner alleges that his continued con-
finement for a state court conviction violates federal law, the
state courts should have the first opportunity to review this
claim and provide any necessary relief.” O’Sullivan v.
Boerckel, 526 U. S. 838, 844 (1999). For state courts to have
their rightful opportunity to adjudicate federal rights, the
prisoner must be diligent in developing the record and pre-
senting, if possible, all claims of constitutional error. If the
prisoner fails to do so, himself or herself contributing to the
absence of a full and fair adjudication in state court,
§ 2254(e)(2) prohibits an evidentiary hearing to develop the
relevant claims in federal court, unless the statute’s other
stringent requirements are met. Federal courts sitting in
habeas are not an alternative forum for trying facts and is-
sues which a prisoner made insufficient effort to pursue in
state proceedings. Yet comity is not served by saying a
prisoner “has failed to develop the factual basis of a claim”
where he was unable to develop his claim in state court de-
spite diligent effort. In that circumstance, an evidentiary
hearing is not barred by § 2254(e)(2).
III
Now we apply the statutory test. If there has been no
lack of diligence at the relevant stages in the state proceed-
ings, the prisoner has not “failed to develop” the facts under
§ 2254(e)(2)’s opening clause, and he will be excused from
showing compliance with the balance of the subsection’s re-
quirements. We find lack of diligence as to one of the three
claims but not as to the other two.
A
Petitioner did not exercise the diligence required to pre-
serve the claim that nondisclosure of Cruse’s psychiatric re-

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port was in contravention of Brady v. Maryland, 373 U. S.
83 (1963). The report concluded Cruse “ha[d] little recollec-
tion of the [murders of the Kellers], other than vague memo-
ries, as he was intoxicated with alcohol and marijuana at the
time.” App. 495. The report had been prepared in Sep-
tember 1993, before petitioner was tried; yet it was not men-
tioned by petitioner until he filed his federal habeas petition
and attached a copy of the report. Petitioner explained that
an investigator for his federal habeas counsel discovered the
report in Cruse’s court file but state habeas counsel had not
seen it when he had reviewed the same file. State habeas
counsel averred as follows:
“Prior to filing [petitioner’s] habeas corpus petition
with the Virginia Supreme Court, I reviewed the Cum-
berland County court files of [petitioner] and of his co-
defendant, Jeffrey Cruse. . . . I have reviewed the
attached psychiatric evaluation of Jeffrey Cruse . . . . I
have no recollection of seeing this report in Mr. Cruse’s
court file when I examined the file. Given the contents
of the report, I am confident that I would remember it.”
Id., at 625–626.
The trial court was not satisfied with this explanation for the
late discovery. Nor are we.
There are repeated references to a “psychiatric” or “men-
tal health” report in a transcript of Cruse’s sentencing
proceeding, a copy of which petitioner’s own state habeas
counsel attached to the state habeas petition he filed with
the Virginia Supreme Court. The transcript reveals that
Cruse’s attorney described the report with details that
should have alerted counsel to a possible Brady claim. As
Cruse’s attorney said:
“The psychiatric report . . . point[s] out that [Cruse] is
significantly depressed. He suffered from post trau-
matic stress. His symptoms include nightmares, sleep-
lessness, sobbing, reddening of the face, severe depres-

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sion, flash backs . . . . [T]he psychological report states
he is overwhelmed by feelings of guilt and shame in his
actions. He is numb. He is trying to suppress his feel-
ings, but when he has feelings, there is only pain and
sadness.” App. 424.
The description accords with the contents of the psychiatric
report, which diagnosed Cruse as suffering from post-
traumatic stress disorder:
“[Cruse] has recurrent nightmares and visualizes the
face of the woman that he killed. When attempting to
describe this nightmare, he breaks openly into tears and
his face reddens. . . . He continues to feel worthless as a
person . . . . He has no hope for his future and has
been thinking of suicide constantly. . . . He does describe
inability to sleep, often tossing and turning, waking up,
and feeling fatigued during the day. . . . He described
neurovegetative symptoms of major depression and
post-traumatic nightmares, recurrent in nature, of the
[murders].” Id., at 495–499.
The transcript put petitioner’s state habeas counsel on notice
of the report’s existence and possible materiality. The sole
indication that counsel made some effort to investigate the
report is an October 30, 1995, letter to the prosecutor in
which counsel requested “[a]ll reports of physical and mental
examinations, scientific tests, or experiments conducted in
connection with the investigation of the offense, including
but not limited to: . . . [a]ll psychological test or polygraph
examinations performed upon any prosecution witness and
all documents referring or relating to such tests . . . .” Id.,
at 346–347. After the prosecution declined the requests ab-
sent a court order, id., at 353, it appears counsel made no
further efforts to find the specific report mentioned by
Cruse’s attorney. Given knowledge of the report’s existence
and potential importance, a diligent attorney would have
done more. Counsel’s failure to investigate these references

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440 WILLIAMS v. TAYLOR
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in anything but a cursory manner triggers the opening clause
of § 2254(e)(2).
As we hold there was a failure to develop the factual basis
of this Brady claim in state court, we must determine if the
requirements in the balance of § 2254(e)(2) are satisfied so
that petitioner’s failure is excused. Subparagraph (B) of
§ 2254(e)(2) conditions a hearing upon a showing, by clear and
convincing evidence, that no reasonable factfinder would
have found petitioner guilty of capital murder but for the
alleged constitutional error. Petitioner concedes he cannot
make this showing, see Brief for Petitioner 25, and the case
has been presented to us on that premise. For these rea-
sons, we affirm the Court of Appeals’ judgment barring an
evidentiary hearing on this claim.
B
We conclude petitioner has met the burden of showing he
was diligent in efforts to develop the facts supporting his
juror bias and prosecutorial misconduct claims in collateral
proceedings before the Virginia Supreme Court.
Petitioner’s claims are based on two of the questions posed
to the jurors by the trial judge at voir dire. First, the judge
asked prospective jurors, “Are any of you related to the fol-
lowing people who may be called as witnesses?” Then he
read the jurors a list of names, one of which was “Deputy
Sheriff Claude Meinhard.” Bonnie Stinnett, who would
later become the jury foreperson, had divorced Meinhard in
1979, after a 17-year marriage with four children. Stinnett
remained silent, indicating the answer was “no.” Meinhard,
as the officer who investigated the crime scene and interro-
gated Cruse, would later become the prosecution’s lead-off
witness at trial.
After reading the names of the attorneys involved in the
case, including one of the prosecutors, Robert Woodson, Jr.,
the judge asked, “Have you or any member of your immedi-
ate family ever been represented by any of the aforemen-

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tioned attorneys?” Stinnett again said nothing, despite the
fact Woodson had represented her during her divorce from
Meinhard. App. 483, 485.
In an affidavit she provided in the federal habeas proceed-
ings, Stinnett claimed “[she] did not respond to the judge’s
[first] question because [she] did not consider [herself] ‘re-
lated’ to Claude Meinhard in 1994 [at voir dire] . . . . Once
our marriage ended in 1979, I was no longer related to him.”
Id., at 627. As for Woodson’s earlier representation of her,
Stinnett explained as follows:
“When Claude and I divorced in 1979, the divorce was
uncontested and Mr. Woodson drew up the papers so
that the divorce could be completed. Since neither
Claude nor I was contesting anything, I didn’t think Mr.
Woodson ‘represented’ either one of us.” Id., at 628.
Woodson provided an affidavit in which he admitted “[he]
was aware that Juror Bonnie Stinnett was the ex-wife of
then Deputy Sheriff Claude Meinhard and [he] was aware
that they had been divorced for some time.” Id., at 629.
Woodson stated, however, “[t]o [his] mind, people who are
related only by marriage are no longer ‘related’ once the
marriage ends in divorce.” Ibid. Woodson also “had no
recollection of having been involved as a private attorney in
the divorce proceedings between Claude Meinhard and Bon-
nie Stinnett.” Id., at 629–630. He explained that “[w]hat-
ever [his] involvement was in the 1979 divorce, by the time
of trial in 1994 [he] had completely forgotten about it.” Id.,
at 630.
Even if Stinnett had been correct in her technical or literal
interpretation of the question relating to Meinhard, her si-
lence after the first question was asked could suggest to the
finder of fact an unwillingness to be forthcoming; this in turn
could bear on the veracity of her explanation for not disclos-
ing that Woodson had been her attorney. Stinnett’s failure
to divulge material information in response to the second

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question was misleading as a matter of fact because, under
any interpretation, Woodson had acted as counsel to her and
Meinhard in their divorce. Coupled with Woodson’s own
reticence, these omissions as a whole disclose the need for an
evidentiary hearing. It may be that petitioner could estab-
lish that Stinnett was not impartial, see Smith v. Phillips,
455 U. S. 209, 217, 219–221 (1982), or that Woodson’s silence
so infected the trial as to deny due process, see Donnelly v.
DeChristoforo, 416 U. S. 637, 647–648 (1974).
In ordering an evidentiary hearing on the juror bias and
prosecutorial misconduct claims, the District Court con-
cluded the factual basis of the claims was not reasonably
available to petitioner’s counsel during state habeas proceed-
ings. After the Court of Appeals vacated this judgment,
the District Court dismissed the petition and the Court of
Appeals affirmed under the theory that state habeas counsel
should have discovered Stinnett’s relationship to Meinhard
and Woodson. See 189 F. 3d, at 428.
We disagree with the Court of Appeals on this point. The
trial record contains no evidence which would have put a
reasonable attorney on notice that Stinnett’s nonresponse
was a deliberate omission of material information. State
habeas counsel did attempt to investigate petitioner’s jury,
though prompted by concerns about a different juror. App.
388–389. Counsel filed a motion for expert services with
the Virginia Supreme Court, alleging “irregularities, impro-
prieties and omissions exist[ed] with respect to the empanel-
ing [sic] of the jury.” Id., at 358. Based on these suspi-
cions, counsel requested funding for an investigator “to
examine all circumstances relating to the empanelment of
the jury and the jury’s consideration of the case.” Ibid.
The Commonwealth opposed the motion, and the Virginia
Supreme Court denied it and dismissed the habeas petition,
depriving petitioner of a further opportunity to investigate.
The Virginia Supreme Court’s denial of the motion is under-
standable in light of petitioner’s vague allegations, but the

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vagueness was not the fault of petitioner. Counsel had no
reason to believe Stinnett had been married to Meinhard or
been represented by Woodson. The underdevelopment of
these matters was attributable to Stinnett and Woodson, if
anyone. We do not suggest the State has an obligation to
pay for investigation of as yet undeveloped claims; but if the
prisoner has made a reasonable effort to discover the claims
to commence or continue state proceedings, § 2254(e)(2) will
not bar him from developing them in federal court.
The Court of Appeals held state habeas counsel was not
diligent because petitioner’s investigator on federal habeas
discovered the relationships upon interviewing two jurors
who referred in passing to Stinnett as “Bonnie Meinhard.”
See Brief for Petitioner 35. The investigator later con-
firmed Stinnett’s prior marriage to Meinhard by checking
Cumberland County’s public records. See 189 F. 3d, at 426
(“The documents supporting [petitioner’s] Sixth Amendment
claims have been a matter of public record since Stinnett’s
divorce became final in 1979. Indeed, because [petitioner’s]
federal habeas counsel located those documents, there is lit-
tle reason to think that his state habeas counsel could not
have done so as well”). We should be surprised, to say the
least, if a district court familiar with the standards of trial
practice were to hold that in all cases diligent counsel must
check public records containing personal information per-
taining to each and every juror. Because of Stinnett and
Woodson’s silence, there was no basis for an investigation
into Stinnett’s marriage history. Section 2254(e)(2) does not
apply to petitioner’s related claims of juror bias and prosecu-
torial misconduct.
We further note the Commonwealth has not argued that
petitioner could have sought relief in state court once he dis-
covered the factual bases of these claims some time between
appointment of federal habeas counsel on July 2, 1996, and
the filing of his federal habeas petition on November 20,
1996. As an indigent, petitioner had 120 days following ap-

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444 WILLIAMS v. TAYLOR
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pointment of state habeas counsel to file a petition with the
Virginia Supreme Court. Va. Code Ann. § 8.01–654.1 (1999).
State habeas counsel was appointed on August 10, 1995,
about a year before petitioner’s investigator on federal ha-
beas uncovered the information regarding Stinnett and
Woodson. As state postconviction relief was no longer
available at the time the facts came to light, it would have
been futile for petitioner to return to the Virginia courts.
In these circumstances, though the state courts did not have
an opportunity to consider the new claims, petitioner cannot
be said to have failed to develop them in state court by rea-
son of having neglected to pursue remedies available under
Virginia law.
Our analysis should suffice to establish cause for any pro-
cedural default petitioner may have committed in not pre-
senting these claims to the Virginia courts in the first in-
stance. Questions regarding the standard for determining
the prejudice that petitioner must establish to obtain relief
on these claims can be addressed by the Court of Appeals or
the District Court in the course of further proceedings.
These courts, in light of cases such as Smith, supra, at 215
(“[T]he remedy for allegations of juror partiality is a hearing
in which the defendant has the opportunity to prove actual
bias”), will take due account of the District Court’s earlier
decision to grant an evidentiary hearing based in part on
its belief that “Juror Stinnett deliberately failed to tell the
truth on voir dire.” Williams v. Netherland, Civ. Action
No. 3:96CV529 (ED Va., Apr. 13, 1998), App. 529, 557.
IV
Petitioner alleges the Commonwealth failed to disclose an
informal plea agreement with Cruse. The Court of Appeals
rejected this claim on the merits under § 2254(d)(1), so it is
unnecessary to reach the question whether § 2254(e)(2) would
permit a hearing on the claim.

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The judgment of the Court of Appeals is affirmed in part
and reversed in part, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.