U.S. Supreme Court Kuhlmann v. Wilson, 477
U.S. 436 (1986) Kuhlmann v. Wilson No. 84-1479 Argued January 14,
1986 Decided June 26, 1986 477
U.S. 436 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus After his arraignment on charges arising from a 1970 robbery and
murder in New York, respondent was confined in a cell with a
prisoner, named Benny Lee, who had previously agreed to act as a
police informant. Respondent made incriminating statements, and Lee
reported them to the police. Prior to trial in a New York court,
respondent moved to suppress the statements on the ground that they
were obtained in violation of his Sixth Amendment right to counsel.
After an evidentiary hearing, the trial court denied the motion,
finding that Lee had obeyed a police officer's instructions only to
listen to respondent for the purpose of identifying his
confederates in the robbery and murder, but not to question
respondent about the crimes. The court also found that respondent's
statements to Lee were "spontaneous" and "unsolicited." In 1972,
respondent was convicted of, and sentenced to imprisonment for,
common law murder and felonious possession of a weapon, and the
Appellate Division affirmed. In 1973, respondent sought federal
habeas corpus relief, asserting that his statements to Lee were
obtained by police investigative methods that violated his Sixth
Amendment rights. The District Court denied the writ, and the Court
of Appeals affirmed. After the 1980 decision in United States
v. Henry, 447 U. S. 264 --
which applied the "deliberately elicited" test of Massiah v.
United States, 377 U. S. 201 , to
suppress statements made to a paid jailhouse informant --
respondent unsuccessfully sought to have his conviction vacated by
the state courts on the basis of his Sixth Amendment claim. In
1982, respondent filed the instant habeas corpus petition in
Federal District Court, again asserting his Sixth Amendment claim.
The District Court denied relief, but the Court of Appeals
reversed. As an initial matter, the Court of Appeals concluded
that, under Sanders v. United States, 373 U. S.
1 , the "ends of justice" required consideration of this
petition for habeas corpus, notwithstanding the adverse
determination on the merits of respondent's Sixth Amendment claim
in the earlier federal habeas corpus proceedings. The court then
held that, under Henry, respondent was entitled to
relief. Page 477 U. S. 437 Held: The judgment is reversed, and the case is
remanded. 742 F.2d 741, reversed and remanded.

															JUSTICE POWELL delivered the opinion of the Court with respect
to Parts I, IV, and V, concluding that the Court of Appeals erred
in holding that respondent was entitled to relief under United
States v. Henry, supra, which left open the question whether
the Sixth Amendment forbids admission in evidence of an accused's
statements to a jailhouse informant who was placed in close
proximity but made no effort to stimulate conversations about the
crime charged. Pp. 477 U. S.
456 -461.

															(a) The primary concern of the Massiah and Henry line of decisions was secret interrogation by
investigatory techniques that are the equivalent of direct police
interrogation. Since the Sixth Amendment is not violated whenever
-- by luck or happenstance -- the State obtains incriminating
statements from the accused after the right to counsel has
attached, a defendant does not make out a violation of that right
simply by showing that an informant, either through prior
arrangement or voluntarily, reported his incriminating statements
to the police. Rather, the defendant must demonstrate that the
police and their informant took some action, beyond merely
listening, that was designed deliberately to elicit incriminating
remarks. Pp. 477 U. S.
456 -459.

															(b) Under the circumstances of this case, the Court of Appeals'
conclusion that respondent's right to counsel was violated because
the police "deliberately elicited" incriminating statements was
clear error in light of the provisions and intent of 28 U.S.C. §
2254(d), which requires that the state trial court's factual
findings be accorded a presumption of correctness. Pp. 477 U. S.
459 -461.

															JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE REHNQUIST,
and JUSTICE O'CONNOR, delivered an opinion with respect to Parts II
and III, concluding that the Court of Appeals erred in holding that
the "ends of justice" would be served by entertaining respondent's
present "successive" petition for habeas corpus, and that the
District Court and the Court of Appeals should have dismissed this
successive petition under 28 U.S.C. § 2244(b) on the ground that
the prior judgment denying relief on respondent's identical Sixth
Amendment claim was final. Sanders v. United States derived its "ends of justice" test directly from language of the
then-applicable statute, and left for another day the task of
defining the considerations that properly support a decision to
entertain a successive petition. Although § 2244(b) makes no
reference to the "ends of justice," that phrase still may be used
generally to describe the standard for identifying those cases
where successive review may be appropriate. However, specific
guidance should be given to the federal courts as to the kind of
proof that a state prisoner must offer to establish that the "ends
of justice" will be served by relitigation Page 477 U. S. 438 of claims previously decided against him. Balancing the State's
interests in finality of convictions and the prisoner's interest in
access to a forum compels the conclusion that the "ends of justice"
are served by successive review only where the petitioner
supplements his constitutional claim with a colorable showing of
factual innocence. The prisoner must make his evidentiary showing
even though -- as argued in this case -- the evidence of guilt may
have been unlawfully admitted. Here, the Court of Appeals conceded
that the evidence of respondent's guilt "was nearly overwhelming,"
and respondent's constitutional claim did not itself raise any
question as to his guilt or innocence. Pp. 477 U. S.
444 -455.

															POWELL, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, IV, and V, in
which BURGER, C.J., and WHITE, BLACKMUN, REHNQUIST, and O'CONNOR,
JJ., joined, and an opinion with respect to Parts II and III, in
which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined.
BURGER, C.J., filed a concurring opinion, post, p. 477 U. S. 461 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 477 U. S. 461 .
STEVENS, J., filed a dissenting opinion, post, p. 477 U. S.
476 .

															JUSTICE POWELL announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, IV, and V, and an
opinion with respect to Parts II and III in which THE CHIEF
JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join.

															This case requires us to define the circumstances under which
federal courts should entertain a state prisoner's petition for
writ of habeas corpus that raises claims rejected on a prior
petition for the same relief. I In the early morning of July 4, 1970, respondent and two
confederates robbed the Star Taxicab Garage in the Bronx, New York,
and fatally shot the night dispatcher. Shortly Page 477 U. S. 439 before, employees of the garage had observed respondent, a
former employee there, on the premises conversing with two other
men. They also witnessed respondent fleeing after the robbery,
carrying loose money in his arms. After eluding the police for four
days, respondent turned himself in. Respondent admitted that he had
been present when the crimes took place, claimed that he had
witnessed the robbery, gave the police a description of the
robbers, but denied knowing them. Respondent also denied any
involvement in the robbery or murder, claiming that he had fled
because he was afraid of being blamed for the crimes.

															After his arraignment, respondent was confined in the Bronx
House of Detention, where he was placed in a cell with a prisoner
named Benny Lee. Unknown to respondent, Lee had agreed to act as a
police informant. Respondent made incriminating statements that Lee
reported to the police. Prior to trial, respondent moved to
suppress the statements on the ground that they were obtained in
violation of his right to counsel. The trial court held an
evidentiary hearing on the suppression motion, which revealed that
the statements were made under the following circumstances.

															Before respondent arrived in the jail, Lee had entered into an
arrangement with Detective Cullen, according to which Lee agreed to
listen to respondent's conversations and report his remarks to
Cullen. Since the police had positive evidence of respondent's
participation, the purpose of placing Lee in the cell was to
determine the identities of respondent's confederates. Cullen
instructed Lee not to ask respondent any questions, but simply to
"keep his ears open" for the names of the other perpetrators.
Respondent first spoke to Lee about the crimes after he looked out
the cellblock window at the Star Taxicab Garage, where the crimes
had occurred. Respondent said, "someone's messing with me," and
began talking to Lee about the robbery, narrating the same story
that he had given the police at the time of his arrest. Lee advised
respondent that this explanation "didn't Page 477 U. S. 440 sound too good," [ Footnote
1 ] but respondent did not alter his story. Over the next few
days, however, respondent changed details of his original account.
Respondent then received a visit from his brother, who mentioned
that members of his family were upset because they believed that
respondent had murdered the dispatcher. After the visit, respondent
again described the crimes to Lee. Respondent now admitted that he
and two other men, whom he never identified, had planned and
carried out the robbery, and had murdered the dispatcher. Lee
informed Cullen of respondent's statements and furnished Cullen
with notes that he had written surreptitiously while sharing the
cell with respondent.

															After hearing the testimony of Cullen and Lee, [ Footnote 2 ] the trial court found that Cullen
had instructed Lee "to ask no questions of [respondent] about the
crime but merely to listen as to what [respondent] might say in his
presence." The court determined that Lee obeyed these instructions,
that he "at no time asked any questions with respect to the crime,"
and that he "only listened to [respondent] and made notes regarding
what [respondent] had to say." The trial court also found that
respondent's statements to Lee were "spontaneous" and
"unsolicited." Under state precedent, a defendant's volunteered
statements to a police agent were admissible in evidence because
the police were not required to prevent talkative defendants from
making incriminating statements. See People v. Kaye, 25
N.Y.2d 139, 145, 250 N.E.2d 329, 332 (1969). The trial court
accordingly denied the suppression motion. Page 477 U. S. 441 The jury convicted respondent of common law murder and felonious
possession of a weapon. On May 18, 1972, the trial court sentenced
him to a term of 20 years to life on the murder count, and to a
concurrent term of up to 7 years on the weapons count. The
Appellate Division affirmed without opinion, People v.
Wilson, 41 App.Div.2d 903, 343 N.Y.S.2d 563 (1973), and the
New York Court of Appeals denied respondent leave to appeal.

															On December 7, 1973, respondent filed a petition for federal
habeas corpus relief. Respondent argued, among other things, that
his statements to Lee were obtained pursuant to police
investigative methods that violated his constitutional rights.
After considering Massiah v. United States, 377 U.
S. 201 (1964), the District Court for the Southern
District of New York denied the writ on January 7, 1977. The record
demonstrated "no interrogation whatsoever" by Lee, and "only
spontaneous statements" from respondent. In the District Court's
view, these "fact[s] preclude[d] any Sixth Amendment
violation."

															A divided panel of the Court of Appeals for the Second Circuit
affirmed. Wilson v. Henderson, 584 F.2d 1185 (1978). The
court noted that a defendant is denied his Sixth Amendment rights
when the trial court admits in evidence incriminating statements
that state agents " had deliberately elicited from him after he
had been indicted and in the absence of counsel.'" Id. at
1189, quoting Massiah v. United States, supra, at 377 U. S. 206 .
Relying in part on Brewer v. Williams, 430 U.
S. 387 (1977), the court reasoned that the "deliberately
elicited" test of Massiah requires something more than
incriminating statements uttered in the absence of counsel. On the
facts found by the state trial court, which were entitled to a
presumption of correctness under 28 U.S.C. § 2254(d), the court
held that respondent had not established a violation of his Sixth
Amendment rights. [ Footnote 3 ]
We denied a Page 477 U. S. 442 petition for a writ of certiorari. Wilson v. Henderson, 442 U.S. 945 (1979).

															Following this Court's decision in United States v.
Henry, 447 U. S. 264 (1980), which applied the Massiah test to suppress
statements made to a paid jailhouse informant, respondent decided
to relitigate his Sixth Amendment claim. On September 11, 1981, he
filed in state trial court a motion to vacate his conviction. The
judge denied the motion, on the grounds that Henry was
factually distinguishable from this case, [ Footnote 4 ] and that. under state precedent, Henry was not to be given retroactive effect, see
People v. Pepper, 53 N.Y.2d 213, 423 N.E.2d 366 (1981). The
Appellate Division denied respondent leave to appeal.

															On July 6, 1982, respondent returned to the District Court for
the Southern District of New York on a habeas petition, again
arguing that admission in evidence of his incriminating statements
to Lee violated his Sixth Amendment rights. Respondent contended
that the decision in Henry constituted a new rule of law
that should be applied retroactively to this case. The District
Court found it unnecessary to consider retroactivity, because it
decided that Henry did not undermine the Court of Appeals'
prior disposition of respondent's Sixth Amendment claim. Noting
that Henry reserved the question whether the Constitution
forbade admission in evidence of an accused's statements to an
informant who made "no effort to stimulate conversations about the
crime charged," see United States v. Henry, supra, at 447 U. S. 271 ,
n. 9, Page 477 U. S. 443 the District Court believed that this case presented that open
question, and that the question must be answered negatively. The
District Court noted that the trial court's findings were
presumptively correct, see 28 U.S.C. § 2254(d), and were
fully supported by the record. The court concluded that these
findings were "fatal" to respondent's claim under Henry, since they showed that Lee made no "affirmative effort" of any kind
"to elicit information" from respondent.

															A different, and again divided, panel of the Court of Appeals
reversed. Wilson v. Henderson, 742 F.2d 741 (1984). As an
initial matter, the court stated that, under Sanders v. United
States, 373 U. S. 1 (1963),
the "ends of justice" required consideration of this petition,
notwithstanding the fact that the prior panel had determined the
merits adversely to respondent. 742 F.2d at 743. The court then
reasoned that the circumstances under which respondent made his
incriminating statements to Lee were indistinguishable from the
facts of Henry. Finally, the court decided that Henry was fully applicable here, because it did not
announce a new constitutional rule, but merely applied settled
principles to new facts. 742 F.2d at 746-747. Therefore, the court
concluded that all of the judges who had considered and rejected
respondent's claim had erred, and remanded the case to the District
Court with instructions to order respondent's release from prison
unless the State elected to retry him. [ Footnote 5 ] Page 477 U. S. 444 We granted certiorari, 472 U.S. 1026 (1985), to consider the
Court of Appeals' decision that the "ends of justice" required
consideration of this successive habeas corpus petition and that
court's application of our decision in Henry to the facts
of this case. We now reverse. II A In concluding that it was appropriate to entertain respondent's
successive habeas corpus petition, the Court of Appeals relied upon Sanders v. United States, 373 U. S.
1 (1963), which announced guidelines for the federal
courts to follow when presented with habeas petitions or their
equivalent claimed to be "successive" or an "abuse of the writ."
[ Footnote 6 ] The narrow
question in Sanders was whether a federal prisoner's
motion under 28 U.S.C. § 2255 was properly denied without a hearing
on the ground that the motion constituted a successive application. Id. at 373 U. S. 4 -6. The
Court undertook not only to answer that question, but also to
explore the standard that should govern district courts'
consideration of successive petitions. Sanders framed the
inquiry in terms of the requirements of the "ends of justice,"
advising district courts to dismiss habeas petitions or their
equivalent raising claims determined adversely to the prisoner on a
prior petition if Page 477 U. S. 445 "the ends of justice would not be served by reaching the merits
of the subsequent application." Id. at 373 U. S. 15 , 373 U. S. 16 -17.
While making clear that the burden of proof on this issue rests on
the prisoner, id. at 373 U. S. 17 , the
Court in Sanders provided little specific guidance as to
the kind of proof that a prisoner must offer to establish that the
"ends of justice" would be served by relitigation of the claims
previously decided against him.

															The Court of Appeals' decision in this case demonstrates the
need for this Court to provide that guidance. The opinion of the
Court of Appeals sheds no light on this important threshold
question, merely declaring that the "ends of justice" required
successive federal habeas corpus review. Failure to provide clear
guidance leaves district judges "at large in disposing of
applications for a writ of habeas corpus," creating the danger that
they will engage in "the exercise not of law, but of
arbitrariness." Brown v. Allen, 344 U.
S. 443 , 344 U. S. 497 (1953) (opinion of Frankfurter, J.). This Court therefore must now
define the considerations that should govern federal courts'
disposition of successive petitions for habeas corpus. B Since 1867, when Congress first authorized the federal courts to
issue the writ on behalf of persons in state custody, [ Footnote 7 ] this Court often has been
called upon to interpret the language of the statutes defining the
scope of that jurisdiction. It may be helpful to review our cases
construing these frequently used statutes before we answer the
specific question before us today.

															Until the early years of this century, the substantive scope of
the federal habeas corpus statutes was defined by reference Page 477 U. S. 446 to the scope of the writ at common law, where the courts'
inquiry on habeas was limited exclusively "to the jurisdiction of
the sentencing tribunal." Stone v. Powell, 428 U.
S. 465 , 428 U. S. 475 (1976). See Wainwright v. Sykes, 433 U. S.
72 , 433 U. S. 78 , 433 U. S. 79 (1977); see also Oaks, Legal History in the High Court --
Habeas Corpus, 64 Mich.L.Rev. 451, 458-468 (1966). Thus, the
finality of the judgment of a committing court of competent
jurisdiction was accorded absolute respect on habeas review. See Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S.
254 -256 (1973) (POWELL, J., concurring). During this
century, the Court gradually expanded the grounds on which habeas
corpus relief was available, authorizing use of the writ to
challenge convictions where the prisoner claimed a violation of
certain constitutional rights. See Wainwright v. Sykes,
supra, at 433 U. S. 79 -80; Stone v. Powell, supra, at 428 U. S.
475 -478. The Court initially accomplished this expansion
while purporting to adhere to the inquiry into the sentencing
court's jurisdiction. Wainwright v. Sykes, 433 U.S. at 433 U. S. 79 .
Ultimately, the Court abandoned the concept of jurisdiction and
acknowledged that habeas

															"review is available for claims of 'disregard of the
constitutional rights of the accused, and where the writ is the
only effective means of preserving his rights.'" Ibid., quoting Waley v. Johnston, 316 U.
S. 101 , 316 U. S.
104 -105 (1942).

															Our decisions have not been limited to expanding the scope of
the writ. Significantly, in Stone v. Powell, we removed
from the reach of the federal habeas statutes a state prisoner's
claim that "evidence obtained in an unconstitutional search or
seizure was introduced at his trial" unless the prisoner could show
that the State had failed to provide him "an opportunity for full
and fair litigation" of his Fourth Amendment claim. 428 U.S. at 428 U. S. 494 (footnotes omitted). Although the Court previously had accepted
jurisdiction of search and seizure claims, id. at 428 U. S. 480 ,
we were persuaded that any "advance of the legitimate goal of
furthering Fourth Amendment rights" through application of the
judicially created Page 477 U. S. 447 exclusionary rule on federal habeas was "outweighed by the
acknowledged costs to other values vital to a rational system of
criminal justice." Id. at 428 U. S. 494 .
Among those costs were diversion of the attention of the
participants at a criminal trial "from the ultimate question of
guilt or innocence," and exclusion of reliable evidence that was
"often the most probative information bearing on the guilt or
innocence of the defendant." Id. at 428 U. S. 490 .
Our decision to except this category of claims from habeas corpus
review created no danger that we were denying a "safeguard against
compelling an innocent man to suffer an unconstitutional loss of
liberty." Id. at 428 U. S.
491 -492, n. 31. Rather, a convicted defendant who
pressed a search and seizure claim on collateral attack was
"usually asking society to redetermine an issue that ha[d] no
bearing on the basic justice of his incarceration." Id. at 428 U. S. 492 ,
n. 31.

															In decisions of the past two or three decades construing the
reach of the habeas statutes, whether reading those statutes
broadly or narrowly, the Court has reaffirmed that "habeas corpus
has traditionally been regarded as governed by equitable
principles." Fay v. Noia, 372 U.
S. 391 , 372 U. S. 438 (1963), citing United States ex rel. Smith v. Baldi, 344 U. S. 561 , 344 U. S. 573 (1953) (dissenting opinion). See Stone v. Powell, supra, at 428 U. S. 478 ,
n. 11. The Court uniformly has been guided by the proposition that
the writ should be available to afford relief to those "persons
whom society has grievously wronged" in light of modern concepts of
justice. Fay v. Noia, supra, at 372 U. S.
440 -441. See Stone v. Powell, supra, at 428 U. S. 492 ,
n. 31. Just as notions of justice prevailing at the inception of
habeas corpus were offended when a conviction was issued by a court
that lacked jurisdiction, so the modern conscience found
intolerable convictions obtained in violation of certain
constitutional commands. But the Court never has defined the scope
of the writ simply by reference to a perceived need to assure that
an individual accused of crime is afforded a trial free of
constitutional error. Rather, the Court has performed its Page 477 U. S. 448 statutory task through a sensitive weighing of the interests
implicated by federal habeas corpus adjudication of constitutional
claims determined adversely to the prisoner by the state courts. E.g., Engle v. Isaac, 456 U. S. 107 , 456 U. S.
126 -129 (1982); Stone v. Powell, supra, at 428 U. S.
489 -495; Fay v. Noia, supra, at 372 U. S.
426 -434. [ Footnote
8 ] III The Court in Sanders drew the phrase "ends of justice"
directly from the version of 28 U.S.C. § 2244 in effect in 1963.
The provision, which then governed petitions filed by both federal
and state prisoners, stated in relevant part that no federal
judge

															"shall be required to entertain an application for a writ of
habeas corpus to inquire into the detention of a person . . . if it
appears that the legality of such detention has been
determined"

															by a federal court

															"on a prior application for a writ of habeas corpus and the
petition presents no new ground not theretofore presented and
determined, and the judge . . . is satisfied that the ends of
justice will not be served by such inquiry. "

															28 U.S.C. § 2244 (1964 ed.) (emphasis added). Accordingly, in
describing guidelines for successive Page 477 U. S. 449 petitions, Sanderson did little more than quote the
language of the then-pertinent statute, leaving for another day the
task of giving that language substantive content.

															In 1966, Congress carefully reviewed the habeas corpus statutes
and amended their provisions, including § 2244. Section 2244(b),
which we construe today, governs successive petitions filed by
state prisoners. The section makes no reference to the "ends of
justice," [ Footnote 9 ] and
provides that the federal courts "need not" entertain "subsequent
applications" from state prisoners "unless the application alleges
and is predicated on a factual or other ground not adjudicated on"
the prior application

															"and unless the court . . . is satisfied that the applicant has
not on the earlier application deliberately withheld the newly
asserted ground or otherwise abused the writ. [ Footnote 10 ]"

															In construing this language, we are cognizant that Congress
adopted the section in light of the need -- often recognized by
this Court -- to weigh the interests of the individual prisoner
against the sometimes contrary interests of the State in
administering a fair and rational system of criminal laws.
[ Footnote 11 ] Page 477 U. S. 450 The legislative history demonstrates that Congress intended the
1966 amendments, including those to § 2244(b), to introduce "a
greater degree of finality of judgments in habeas corpus
proceedings." S.Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966)
(Senate Report). Congress was concerned with the "steadily
increasing" burden imposed on the federal courts by "applications
by State prisoners for writs of habeas corpus." [ Footnote 12 ] Id. at l; see H.R.Rep. No. 1892, 89th Cong., 2d Sess., 5-6 (1966)
(House Report). In many instances, the "heavy burden" created by
these applications was "unnecessary," because state prisoners

															"have been filing applications either containing allegations
identical to those asserted in a previous application that has been
denied, or predicated upon grounds obviously well known to them
when they filed the preceding application."

															Senate Report at 2; see House Report at 5. The Senate
Report explicitly states that the "purpose" of the amendments was
to "alleviate the unnecessary burden" by adding "to section 2244 .
. . provisions for a qualified application of the doctrine of res judicata. " Senate Report at 2; see House
Report at 8. The House also Page 477 U. S. 451 expressed concern that the increasing number of habeas
applications from state prisoners

															"greatly interfered with the procedures and processes of the
State courts by delaying, in many cases, the proper enforcement of
their judgments." Id. at 5.

															Based on the 1966 amendments and their legislative history,
petitioner argues that federal courts no longer must consider the
"ends of justice" before dismissing a successive petition. We
reject this argument. It is clear that Congress intended for
district courts, as the general rule, to give preclusive effect to
a judgment denying on the merits a habeas petition alleging grounds
identical in substance to those raised in the subsequent petition.
But the permissive language of § 2244(b) gives federal courts
discretion to entertain successive petitions under some
circumstances. Moreover, Rule 9(b) of the Rules Governing Section
2254 Cases in the United States District Courts, which was amended
in 1976, contains similar permissive language, providing that the
district court "may" dismiss a "second or successive petition" that
does not "allege new or different grounds for relief." Consistent
with Congress' intent in enacting § 2244(b), however, the Advisory
Committee Note to Rule 9(b), 28 U.S.C. p. 358, states that federal
courts should entertain successive petitions only in "rare
instances." [ Footnote 13 ]
Unless those "rare instances" are to be identified by whim or
caprice, district judges must be given guidance for determining
when to exercise the limited discretion granted them by § 2244(b).
Accordingly, as a means of identifying the rare case in which
federal courts should exercise their discretion to hear a
successive petition, we continue to rely on the reference in Sanders to the "ends of justice." Our task is to provide a
definition of the "ends of justice" that will accommodate Congress'
intent to give finality to federal habeas judgments with Page 477 U. S. 452 the historic function of habeas corpus to provide relief from
unjust incarceration. B We now consider the limited circumstances under which the
interests of the prisoner in relitigating constitutional claims
held meritless on a prior petition may outweigh the countervailing
interests served by according finality to the prior judgment. We
turn first to the interests of the prisoner.

															The prisoner may have a vital interest in having a second chance
to test the fundamental justice of his incarceration. Even where,
as here, the many judges who have reviewed the prisoner's claims in
several proceedings provided by the State and on his first petition
for federal habeas corpus have determined that his trial was free
from constitutional error, a prisoner retains a powerful and
legitimate interest in obtaining his release from custody if he is
innocent of the charge for which he was incarcerated. That interest
does not extend, however, to prisoners whose guilt is conceded or
plain. As Justice Harlan observed, the guilty prisoner himself
has

															"an interest in insuring that there will at some point be the
certainty that comes with an end to litigation, and that attention
will ultimately be focused not on whether a conviction was free
from error, but rather on whether the prisoner can be restored to a
useful place in the community." Sanders v. United States, 373 U.S. at 373 U. S. 24 -25
(dissenting).

															Balanced against the prisoner's interest in access to a forum to
test the basic justice of his confinement are the interests of the
State in administration of its criminal statutes. Finality serves
many of those important interests. Availability of unlimited
federal collateral review to guilty defendants frustrates the
State's legitimate interest in deterring crime, since the deterrent
force of penal laws is diminished to the extent that persons
contemplating criminal activity believe there is a possibility that
they will escape punishment Page 477 U. S. 453 through repetitive collateral attacks. [ Footnote 14 ] See Engle v. Isaac, 456
U.S. at 456 U. S.
127 -128, n. 32. Similarly, finality serves the State's
goal of rehabilitating those who commit crimes because

															"[r]ehabilitation demands that the convicted defendant realize
that 'he is justly subject to sanction, that he stands in need of
rehabilitation.'" Id. at 456 U. S. 128 ,
n. 32 (quoting Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 Harv.L.Rev. 441, 452 (1963)). See Schneckloth v. Bustamonte, 412 U.S. at 412 U. S. 262 (POWELL, J., concurring). Finality also serves the State's
legitimate punitive interests. When a prisoner is freed on a
successive petition, often many years after his crime, the State
may be unable successfully to retry him. [ Footnote 15 ] Peyton v. Rowe, 391 U. S.
54 , 391 U. S. 62 (1968). This result is unacceptable if the State must forgo
conviction of a guilty defendant through the "erosion of memory"
and "dispersion of witnesses" that occur with the passage of time
that invariably attends collateral attack. [ Footnote 16 ] Page 477 U. S. 454 Engle v. Isaac, supra, at 456 U. S.
127 -128; Friendly, Is Innocence Irrelevant? Collateral
Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 146-148
(1970).

															In the light of the historic purpose of habeas corpus and the
interests implicated by successive petitions for federal habeas
relief from a state conviction, we conclude that the "ends of
justice" require federal courts to entertain such petitions only
where the prisoner supplements his constitutional claim with a
colorable showing of factual innocence. This standard was proposed
by Judge Friendly more than a decade ago as a prerequisite for
federal habeas review generally. Friendly, supra. As Judge
Friendly persuasively argued then, a requirement that the prisoner
come forward with a colorable showing of innocence identifies those
habeas petitioners who are justified in again seeking relief from
their incarceration. We adopt this standard now to effectuate the
clear intent of Congress that successive federal habeas review
should be granted only in rare cases, but that it should be
available when the ends of justice so require. The prisoner may
make the requisite showing by establishing that, under the
probative evidence, he has a colorable claim of factual innocence.
The prisoner must make his evidentiary showing even though -- as
argued in this case -- the evidence of guilt may have been
unlawfully admitted. [ Footnote
17 ] Page 477 U. S. 455 C Applying the foregoing standard in this case, we hold that the
Court of Appeals erred in concluding that the "ends of justice"
would be served by consideration of respondent's successive
petition. The court conceded that the evidence of respondent's
guilt "was nearly overwhelming." 742 F.2d at 742. The
constitutional claim argued by respondent does not itself raise any
question as to his guilt or innocence. The District Court and the
Court of Appeals should have dismissed this successive petition
under § 2244(b) on the ground that the prior judgment denying
relief on this identical claim was final. [ Footnote 18 ] Page 477 U. S. 456 IV Even if the Court of Appeals had correctly decided to entertain
this successive habeas petition, we conclude that it erred in
holding that respondent was entitled to relief under United
States v. Henry, 447 U. S. 264 (1980). As the District Court observed, Henry left open
the question whether the Sixth Amendment forbids admission in
evidence of an accused's statements to a jailhouse informant who
was "placed in close proximity but [made] no effort to stimulate
conversations about the crime charged." Id. at 447 U. S. 271 ,
n. 9. [ Footnote 19 ] Our
review of the line of cases beginning with Massiah v. United
States, 377 U. S. 201 (1964), shows that this question must, as the District Court
properly decided, be answered negatively. A The decision in Massiah had its roots in two concurring
opinions written in Spano v. New York, 360 U.
S. 315 (1959). See Maine v. Moulton, 474 U. S. 159 , 474 U. S. 172 (1985). Following his indictment for first-degree murder, the
defendant in Spano retained a lawyer and surrendered to
the authorities. Before leaving the defendant in police custody,
counsel cautioned him not to respond to interrogation. The
prosecutor and police questioned the defendant, persisting in the
face of his repeated refusal to answer and his repeated request to
speak with his lawyer. The lengthy interrogation involved improper
police tactics, and the defendant ultimately confessed. Page 477 U. S. 457 Following a trial at which his confession was admitted in
evidence, the defendant was convicted and sentenced to death. 360
U.S. at 360 U. S.
316 -320. Agreeing with the Court that the confession was
involuntary, and thus improperly admitted in evidence under the
Fourteenth Amendment, the concurring Justices also took the
position that the defendant's right to counsel was violated by the
secret interrogation. Id. at 360 U. S. 325 (Douglas, J., concurring). As Justice Stewart observed, an indicted
person has the right to assistance of counsel throughout the
proceedings against him. Id. at 360 U. S. 327 .
The defendant was denied that right when he was subjected to an
"all-night inquisition," during which police ignored his repeated
requests for his lawyer. Ibid. The Court in Massiah adopted the reasoning of the
concurring opinions in Spano and held that, once a
defendant's Sixth Amendment right to counsel has attached, he is
denied that right when federal agents "deliberately elicit"
incriminating statements from him in the absence of his lawyer. 377
U.S. at 377 U. S. 206 .
The Court adopted this test, rather than one that turned simply on
whether the statements were obtained in an "interrogation," to
protect accused persons from

															"'indirect and surreptitious interrogations, as well as those
conducted in the jailhouse. In this case, Massiah was more
seriously imposed upon. . . . because he did not even know that he
was under interrogation by a government agent.'" Ibid., quoting United States v. Massiah, 307
F.2d 62, 72-73 (1962) (Hays, J., dissenting in part). Thus, the
Court made clear that it was concerned with interrogation or
investigative techniques that were equivalent to interrogation, and
that it so viewed the technique in issue in Massiah. [ Footnote 20 ] Page 477 U. S. 458 In United States v. Henry, the Court applied the Massiah test to incriminating statements made to a
jailhouse informant. The Court of Appeals in that case found a
violation of Massiah because the informant had engaged the
defendant in conversations and "had developed a relationship of
trust and confidence with [the defendant] such that [the defendant]
revealed incriminating information." 447 U.S. at 447 U. S. 269 .
T his Court affirmed, holding that the Court of Appeals reasonably
concluded that the Government informant "deliberately used his
position to secure incriminating information from [the defendant]
when counsel was not present." Id. at 447 U. S. 270 .
Although the informant had not questioned the defendant, the
informant had "stimulated" conversations with the defendant in
order to "elicit" incriminating information. Id. at 447 U. S. 273 ; see id. at 447 U. S. 271 ,
n. 9. The Court emphasized that those facts, like the facts of Massiah, amounted to " indirect and surreptitious
interrogatio[n]'" of the defendant. 447 U.S. at 447 U. S.
273 . Earlier this Term, we applied the Massiah standard in a
case involving incriminating statements made under circumstances
substantially similar to the facts of Massiah itself. In Maine v. Moulton, 474 U. S. 159 (1985), the defendant made incriminating statements in a meeting
with his accomplice, who had agreed to cooperate with the police.
During that meeting, the accomplice, who wore a wire transmitter to
record the conversation, discussed with the defendant the charges
pending against him, repeatedly asked the defendant to remind him
of the details of the crime, and encouraged the defendant to
describe his plan for killing witnesses. Id. at 474 U. S.
165 -166, and n. 4. The Court concluded that these
investigatory techniques denied the defendant his right to counsel
on the pending charges. [ Footnote 21 ] Significantly, the Court emphasized that,
because of the relationship between the defendant Page 477 U. S. 459 and the informant, the informant's engaging the defendant "in
active conversation about their upcoming trial was certain to
elicit" incriminating statements from the defendant. Id. at 474 U. S. 177 ,
n. 13. Thus, the informant's participation "in this conversation
was the functional equivalent of interrogation.'" Ibid. (quoting United States v. Henry, 447 U.S.
at 447 U. S. 277 (POWELL, J., concurring)). As our recent examination of this Sixth Amendment issue in
Moulton makes clear, the primary concern of the Massiah line of decisions is secret interrogation by investigatory
techniques that are the equivalent of direct police interrogation.
Since

															"the Sixth Amendment is not violated whenever -- by luck or
happenstance -- the State obtains incriminating statements from the
accused after the right to counsel has attached,"

															474 U.S. at 474 U. S. 176 ,
citing United States v. Henry, supra, at 447 U. S. 276 (POWELL, J., concurring), a defendant does not make out a violation
of that right simply by showing that an informant, either through
prior arrangement or voluntarily, reported his incriminating
statements to the police. Rather, the defendant must demonstrate
that the police and their informant took some action, beyond merely
listening, that was designed deliberately to elicit incriminating
remarks. B It is thus apparent that the Court of Appeals erred in
concluding that respondent's right to counsel was violated under
the circumstances of this case. Its error did not stem from any
disagreement with the District Court over appropriate resolution of
the question reserved in Henry, but rather from its
implicit conclusion that this case did not present that open
question. That conclusion was based on a fundamental mistake,
namely, the Court of Appeals' failure to accord to the state trial
court's factual findings the presumption of correctness expressly
required by 28 U.S.C. § 2254(d). Patton v. Yount, 467 U. S. 1025 (1984); Sumner v. Mata, 449 U. S. 539 (1981). Page 477 U. S. 460 The state court found that Officer Cullen had instructed Lee
only to listen to respondent for the purpose of determining the
identities of the other participants in the robbery and murder. The
police already had solid evidence of respondent's participation.
[ Footnote 22 ] The court
further found that Lee followed those instructions, that he "at no
time asked any questions" of respondent concerning the pending
charges, and that he "only listened" to respondent's "spontaneous"
and "unsolicited" statements. The only remark made by Lee that has
any support in this record was his comment that respondent's
initial version of his participation in the crimes "didn't sound
too good." Without holding that any of the state court's findings
were not entitled to the presumption of correctness under §
2254(d), [ Footnote 23 ] the
Court of Appeals focused on that one remark and gave a description
of Lee's interaction with respondent that is completely at odds
with the facts found by the trial court. In the Court of Appeals'
view,

															"[s]ubtly and slowly, but surely, Lee's ongoing verbal
intercourse with [respondent] served to exacerbate [respondent's]
already troubled state of mind. [ Footnote 24 ]"

															742 F.2d at 745. After thus revising some of the trial court's
findings, and ignoring other more relevant findings, the Court of
Appeals concluded that the police "deliberately elicited"
respondent's incriminating statements. Ibid. This
conclusion conflicts with the Page 477 U. S. 461 decision of every other state and federal judge who reviewed
this record, and is clear error in light of the provisions and
intent of § 2254(d). V The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion. It is so ordered. [ Footnote 1 ]

															At the suppression hearing, Lee testified that, after hearing
respondent's initial version of his participation in the crimes, "I
think I remember telling him that the story wasn't -- it didn't
sound too good. Things didn't look too good for him." At trial, Lee
testified to a somewhat different version of his remark: "Well, I
said, look, you better come up with a better story than that,
because that one doesn't sound too cool to me, that's what I
said."

															[ Footnote 2 ]

															Respondent did not testify at the suppression hearing.

															[ Footnote 3 ]

															The Court of Appeals observed that suppression of respondent's
statements would serve "no useful purpose" because Cullen had not
engaged in "reprehensible police behavior," but rather had made a
"conscious effort" to protect respondent's "constitutional rights
[under Massiah ] while pursuing a crucial homicide
investigation." Wilson v. Henderson, 584 F.2d at 1191.

															Judge Oakes dissented, arguing that the "deliberately elicited"
test of Massiah proscribed admission in evidence of an
accused's statements obtained pursuant to the investigatory tactics
used here. Id. at 1194-1195.

															[ Footnote 4 ]

															The trial judge found that United States v. Henry was
distinguishable because the jailhouse informant in that case was
paid for reporting the defendant's statements to the police.

															[ Footnote 5 ]

															Judge Van Graafeiland, dissenting, observed that the majority
conceded that there had been no change in the law that had
"transformed conduct that we formerly held to be constitutional
into conduct that is now unconstitutional." 742 F.2d at 749. Thus,
the majority's rejection of the conclusion reached by the judges
who previously had considered respondent's claim was based on its
refusal to accept the trial court's factual determinations. Id. at 748. The dissent criticized the majority for
disregarding

															"the presumption that the State court's factual findings are
correct, 28 U.S.C. § 2254(d), without an adequate explanation as to
why the findings are not fairly supported by the record." Id. at 749. In Judge Van Graafeiland's view, "[a]
boilerplate statement that the "ends of justice" justify
reconsideration on the merits does not warrant rejection of all
that has gone on before." Ibid. (citations omitted).

															[ Footnote 6 ]

															The terms "successive petition" and "abuse of the writ" have
distinct meanings. A "successive petition" raises grounds identical
to those raised and rejected on the merits on a prior petition. See Sanders v. United States, 373 U.S. at 373 U. S. 16 -17.
Our decision today concerns the circumstances under which district
courts properly should entertain the merits of such a petition. The
concept of "abuse of the writ" is founded on the equitable nature
of habeas corpus. Thus, where a prisoner files a petition raising
grounds that were available but not relied upon in a prior
petition, or engages in other conduct that "disentitle[s] him to
the relief he seeks," the federal court may dismiss the subsequent
petition on the ground that the prisoner has abused the writ. Id. at 373 U. S.
17 -19.

															[ Footnote 7 ]

															The Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81, the first
grant of jurisdiction to the federal courts, included authority to
issue the writ of habeas corpus ad subjiciendum on behalf
of federal prisoners. In 1867, Congress authorized the federal
courts to grant habeas relief to persons in the custody of the
States. Act of Feb. 6, 1867, ch. 28, §§ 1, 14 Stat. 385. See
Stone v. Powell, 428 U. S. 465 , 428 U. S.
474 -475 (1976).

															[ Footnote 8 ]

															Contrary to the suggestion of JUSTICE BRENNAN's dissent, our
cases deciding that federal habeas review ordinarily does not
extend to procedurally defaulted claims plainly concern the
"general scope of the writ." Post at 477 U. S. 464 .
The point of those decisions is that, on balancing the competing
interests implicated by affording federal collateral relief to
persons in state custody, federal courts should not exercise habeas
corpus jurisdiction over a certain category of constitutional
claims, whether or not those claims are meritorious. Whether one
characterizes those decisions as carving out an "exception" to
federal habeas jurisdiction, as the dissent apparently prefers to
do, post at 477 U. S. 465 ,
n. 3, or as concerning the scope of that jurisdiction, the result
is the same, and was reached under a framework of analysis that
weighed the pertinent interests. Similarly, in Fay v.
Noia, JUSTICE BRENNAN's opinion for the Court expressly made a
"practical appraisal of the state interest" in a system of
procedural forfeitures, weighing that interest against the other
interests implicated by federal collateral review of procedurally
defaulted claims. 372 U.S. at 477 U. S. 433 .
Of course, that the Court in Noia adopted an expansive
reading of the scope of the writ does not undercut the fact that it
did so by balancing competing interests.

															[ Footnote 9 ]

															In § 2244(a), which now governs successive petitions filed by
federal prisoners, Congress preserved virtually intact the language
of former § 2244, including the reference to the "ends of
justice."

															[ Footnote 10 ]

															Title 28 U.S.C. § 2244(b) provides:

															"When after an evidentiary hearing on the merits of a material
factual issue, or after a hearing on the merits of an issue of law,
a person in custody pursuant to the judgment of a State court has
been denied by a court of the United States or a justice or judge
of the United States release from custody or other remedy on an
application for a writ of habeas corpus, a subsequent application
for a writ of habeas corpus in behalf of such person need not be
entertained by a court of the United States or a justice or judge
of the United States unless the application alleges and is
predicated on a factual or other ground not adjudicated on the
hearing of the earlier application for the writ, and unless the
court, justice, or judge is satisfied that the applicant has not on
the earlier application deliberately withheld the newly asserted
ground or otherwise abused the writ."

															[ Footnote 11 ]

															Sensitivity to the interests implicated by federal habeas corpus
review is implicit in the statutory command that the federal courts
"shall . . . dispose of the matter as law and justice require." 28
U.S.C. § 2243 (emphasis added).

															[ Footnote 12 ]

															The Senate Report incorporates a letter from Senior Circuit
Judge Orie L. Phillips to Senator Joseph D. Tydings that
states:

															"The need for this legislation . . . is demonstrated by the fact
that the number of applications for writs of habeas corpus in
Federal courts by State court prisoners increased from 134 in 1941
to 814 in 1957. In fiscal 1963, 1,692 applications for the writ
were filed by State court prisoners; in fiscal 1964, 3,248 such
applications were filed; in fiscal 1965, 4,845 such applications
were filed; and in the first 9 months of fiscal 1966, 3,773 such
applications were filed, yet less than 5 percent of such
applications were decided by the Federal district courts in favor
of the applicant for the writ. More than 95 percent were held to be
without merit."

															Senate Report at 4, 5-6.

															Since 1966, the burden imposed by applications for federal
habeas corpus filed by state prisoners has continued to increase.
In 1966, a total of 5,339 such applications was filed. In 1985,
8,534 applications were filed. Annual Report of the Director of the
Administrative Office of the U.S. Courts (1985).

															[ Footnote 13 ]

															The Advisory Committee Note relies on the "ends of justice"
inquiry described in Sanders to identify the unusual case
where a successive petition should be heard.

															[ Footnote 14 ]

															"Deterrence depends upon the expectation that 'one violating the
law will swiftly and certainly become subject to punishment, just
punishment.'" Engle v. Isaac, 456 U. S. 107 , 456 U. S.
127 -128, n. 32 (1982), quoting Bator, Finality in
Criminal Law and Federal Habeas Corpus for State Prisoners, 76
Harv.L.Rev. 441, 452 (1963).

															[ Footnote 15 ]

															Where the prisoner secures his release on a successive petition,
the delay between the crime and retrial following issuance of the
writ often will be substantial. The delay in this case is
illustrative. Respondent committed the robbery and murder in 1970,
and was convicted in 1972. Direct appeal was completed in 1973. The
intervening years have been largely consumed by federal habeas
corpus review, with the past four years devoted to relitigation of
respondent's claim that admission in evidence of his statements to
Lee violated the Sixth Amendment.

															[ Footnote 16 ]

															Finality serves other goals important to our system of criminal
justice and to federalism. Unlimited availability of federal
collateral attack burdens our criminal justice system as successive
petitions divert the "time of judges, prosecutors, and lawyers"
from the important task of trying criminal cases. Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38
U.Chi.L.Rev. 142, 148-149 (1970). See Engle v. Isaac,
supra, at 456 U. S. 127 .
Federal habeas review creates friction between our state and
federal courts, as state judges -- however able and thorough --
know that their judgments may be set aside by a single federal
judge, years after it was entered and affirmed on direct appeal. See 456 U.S. at 456 U. S. 128 .
Moreover, under our federal system, the States "possess primary
authority for defining and enforcing the criminal law," and

															"hold the initial responsibility for vindicating constitutional
rights. Federal intrusions into state criminal trials frustrate
both the States' sovereign power to punish offenders and their good
faith attempts to honor constitutional rights." Ibid., citing Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S.
263 -265 (1983) (POWELL, J., concurring). Despite those
costs, Congress has continued to afford federal habeas relief in
appropriate cases,

															"recognizing the need in a free society for an additional
safeguard against compelling an innocent [person] to suffer an
unconstitutional loss of liberty." Stone v. Powell, 428 U.S. at 428 U. S.
491 -492, n. 31.

															[ Footnote 17 ]

															As Judge Friendly explained, a prisoner does not make a
colorable showing of innocence

															"by showing that he might not, or even would not have been
convicted in the absence of evidence claimed to have been
unconstitutionally obtained."

															Friendly, supra, at 160. Rather, the prisoner must

															"show a fair probability that, in light of all the evidence,
including that alleged to have been illegally admitted (but with
due regard to any unreliability of it) and evidence tenably claimed
to have been wrongly excluded or to have become available only
after the trial, the trier of the facts would have entertained a
reasonable doubt of his guilt." Ibid. (footnote omitted). Thus, the question whether
the prisoner can make the requisite showing must be determined by
reference to all probative evidence of guilt or innocence.

															[ Footnote 18 ]

															JUSTICE BRENNAN's dissenting opinion mischaracterizes our
opinion in several respects. The dissent states that the
plurality

															" implies that federal habeas review is not available as
a matter of right to a prisoner who alleges in his first federal petition a properly preserved [constitutional claim]." Post at 477 U. S. 462 (emphasis added). This case involves, and our opinion describes, only the standard applicable to successive petitions for federal habeas corpus relief. Thus, the first six
pages of the dissent have little, if any, relevance to this case.
There, JUSTICE BRENNAN merely reiterates at length his views as to
the general scope of federal habeas corpus jurisdiction, with no
explanation of how those views apply when a district judge is
required to consider a habeas corpus petition presenting an issue
decided on the merits in a previous federal habeas proceeding.

															The dissent further mistakenly asserts that we reject Sanders' holding that the question whether successive
review is proper should be decided under a " sound discretion'
standard." Post at 477 U. S. 462 .
As we have stated, the permissive language of § 2244(b), of course,
gives the federal courts discretion to decide whether to entertain
a successive petition, and, since Sanders, those courts
have relied on the phrase "ends of justice" as a general standard
for identifying cases in which successive review may be
appropriate. What Sanders left open -- and the dissent
today ignores -- is the critical question of what considerations
should inform a court's decision that successive review of an issue
previously decided will serve the "ends of justice." While the
dissent today purports to provide some substance to the Sanders standard by requiring a "good justification" for
relitigation of a claim previously decided, its standard provides
no real guidance to federal courts confronted with successive
claims for habeas corpus relief. As to the need for a standard, see supra at 477 U. S.
445 . [ Footnote 19 ]

															In Maine v. Moulton, 474 U. S. 159 (1986), we again reserved this question, declining to reach the
situation where the informant acts simply as a " listening
post'" without "participat[ing] in active conversation and
prompt[ing] particular replies." Id. at 474 U. S. 177 ,
n. 13. [ Footnote 20 ]

															The defendant in Massiah made the incriminating
statements in a conversation with one of his confederates, who had
secretly agreed to permit Government agents to listen to the
conversation over a radio transmitter. The agents instructed the
confederate to "engage Massiah in conversation relating to the
alleged crimes." United States v. Massiah, 307 F.2d at 72
(Hays, J., dissenting in part).

															[ Footnote 21 ]

															The Court observed, however, that where the defendant makes
"[i]ncriminating statements pertaining to other crimes, as to which
the Sixth Amendment right has not yet attached," those statements
"are, of course, admissible at a trial of those offenses." 474 U.S.
at 474 U. S. 180 ,
n. 16.

															[ Footnote 22 ]

															Eyewitnesses had identified respondent as the man they saw
fleeing from the garage with an armful of money.

															[ Footnote 23 ]

															The majority did not respond to Judge Van Graafeiland's
criticism that the court could not

															"dispense with the presumption that the State court's factual
findings are correct without an adequate explanation as to why the
findings are not fairly supported by the record."

															742 F.2d at 749 (citations omitted).

															[ Footnote 24 ]

															Curiously, the Court of Appeals expressed concern that
respondent was placed in a cell that overlooked the scene of his
crimes. Id. at 745. For all the record shows, however,
that fact was sheer coincidence. Nor do we perceive any reason to
require police to isolate one charged with crime so that he cannot
view the scene, whatever it may be, from his cell window.

															CHIEF JUSTICE BURGER, concurring.

															I agree fully with the Court's opinion and judgment. This case
is clearly distinguishable from United States v. Henry, 447 U. S. 264 (1980). There is a vast difference between placing an "ear" in the
suspect's cell and placing a voice in the cell to encourage
conversation for the "ear" to record.

															Furthermore, the abuse of the Great Writ needs to be curbed so
as to limit, if not put a stop to, the "sporting contest" theory of
criminal justice so widely practiced today.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.

															Because I believe that the Court of Appeals correctly concluded
that the "ends of justice" would be served by plenary consideration
of respondent's second federal habeas petition, and that United
States v. Henry, 447 U. S. 264 (1980), directly controls the merits of this case, I dissent. I In Sanders v. United States, 373 U. S.
1 , 373 U. S. 15 (1963), we held that a federal court may refuse to entertain a
successive petition for habeas relief or its equivalent under 28
U.S.C. § 2255 where "the ends of justice would not be served by
reaching the merits of the subsequent application." The decision
whether to hear a successive petition, we stated, was committed "to
the sound discretion of the federal trial judges." Id. at 373 U. S. 18 . We
declined to define precisely "the Page 477 U. S. 462 ends of justice," observing that the phrase "cannot be too
finely particularized." Id. at 373 U. S. 17 .

															Today four Members of the Court argue that we should reject Sanders' "sound discretion" standard, and contend that the
ends of justice are served by reconsideration of issues raised in
previous federal habeas petitions only where the prisoner can make
a colorable showing of factual innocence. [ Footnote 2/1 ] Ante at 477 U. S. 454 ,
and n. 17. In support of this standard for consideration of
successive petitions, the plurality advances a revisionist theory
of this Court's habeas corpus jurisprudence. The plurality implies
that federal habeas review is not available as a matter of right to
a prisoner who alleges in his first federal petition a properly
preserved claim that his conviction was obtained in violation of
constitutional commands. Rather, the plurality suggests that a
prisoner is entitled to habeas relief only if his interest in
freedom from unconstitutional incarceration outweighs the State's
interests in the administration of its criminal laws. Ante at 477 U. S.
452 -453, and nn. 14-16. The plurality further intimates
that federal review of state court convictions under 28 U.S.C. §
2254 is predicated solely on the need to prevent the incarceration
of an innocent person, stating that,

															"[d]espite [the substantial] costs [federal habeas review
imposes upon the States], Congress has continued to afford federal
habeas relief in appropriate cases, 'recognizing the need in a free
society for an additional safeguard against compelling an innocent
[person] to suffer an unconstitutional loss of liberty.'" Ante at 477 U. S. 454 ,
n. 16 (quoting Stone v. Powell, 428 U.
S. 465 , 491 U. S.
491 -492, n. 31 (1976)). Having thus implied that factual
innocence is central to our habeas jurisprudence generally, the
plurality declares that it is fundamental to the proper
interpretation of "the ends of justice." Neither the plurality's
standard for Page 477 U. S. 463 consideration of successive petitions nor its theory of habeas
corpus is supported by statutory language, legislative history, or
our precedents. [ Footnote 2/2 ] Page 477 U. S. 464 At least since the middle of this century, when we decided Waley v. Johnston, 316 U. S. 101 (1942), and Brown v. Allen, 344 U.
S. 443 (1953), it has been clear that "habeas lies to
inquire into every constitutional defect in any criminal trial," Mackey v. United States, 401 U. S. 667 , 401 U. S.
685 -686 (1971) (opinion of Harlan, J.), that has not
been procedurally defaulted, with the narrow exception of Fourth
Amendment exclusionary rule claims. Stone v. Powell,
supra. As we stated just two Terms ago, there is

															"no doubt that, in enacting § 2254, Congress sought to"

															"interpose the federal courts between the States and the people,
as guardians of the people's federal rights -- to protect the
people from unconstitutional action." Reed v. Ross, 468 U. S. 1 , 468 U. S. 10 (1984) (quoting Mitchum v. Foster, 407 U.
S. 225 , 407 U. S. 242 (1972)).

															Contrary to the plurality's assertions, the Court has never
delineated the general scope of the writ by weighing the competing
interests of the prisoner and the State. Our cases addressing the
propriety of federal collateral review of constitutional error made
at trial or on appeal have balanced these interests solely with
respect to claims that were procedurally defaulted in state court. See, e.g., Wainwright v. Sykes, 433 U. S.
72 (1977), Engle v. Isaac, 456 U.
S. 107 (1982); Murray v. Carrier, post p. 477 U. S. 478 .
Recognizing that

															"the State's interest in the integrity of its rules and
proceedings and the finality of its judgments . . . would be
undermined if the federal courts were too free to ignore procedural
forfeitures in state court," Reed v. Ross, supra, at 468 U. S. 10 , we
held in Wainwright v. Sykes, supra, that a state prisoner
generally must show cause and actual prejudice in order to obtain
federal habeas corpus relief of a procedurally defaulted claim. See also Engle v. Isaac, supra. But even as we established
the cause-and-prejudice standard in Wainwright v. Sykes,
supra, we emphasized that the "rule" of Brown v. Allen,
supra, "that the federal habeas petitioner who claims he is detained
pursuant to a final judgment of a state court in violation of the
United States Constitution is entitled to have the Page 477 U. S. 465 federal habeas court make its own independent determination of
his federal claim . . . is in no way changed,"

															by our adoption of special rules for procedurally defaulted
claims. Wainwright v. Sykes, supra, at 433 U. S. 87 .
[ Footnote 2/3 ]

															Furthermore, Stone v. Powell, supra, on which the
plurality heavily relies, did not establish a new regime for
federal habeas corpus under which the prisoner's interests are
weighed against the State's interests, and under which he usually
forfeits habeas review unless he can make out a colorable showing
of factual innocence or unless the constitutional right he seeks to
protect generally furthers the accuracy of factfinding at trial.
Indeed, in Stone v. Powell, the Court expressly stated
that its "decision . . . [was] not concerned with the
scope of the habeas corpus statute as authority for litigating
constitutional claims generally." Id. at 428 U. S. 495 ,
n. 37 (emphasis in original). Rather, the Court simply

															"reaffirm[ed] that the exclusionary rule is a judicially created
remedy, rather than a personal constitutional right, . . . and . .
. emphasiz[ed] the minimal utility of the [exclusionary] rule"

															in the context of federal collateral proceedings. Ibid. Subsequent cases have uniformly construed Stone v. Powell as creating a special rule only for Fourth Amendment exclusionary
rule claims, and have repeatedly refused to extend its limitations
on federal habeas review to any other context. Kimmelman v.
Morrison, ante p. 477 U. S. 365 (declining to extend Stone v. Powell to Sixth Amendment
right to effective assistance of counsel claims where the principal
allegation and manifestation of inadequate representation is
counsel's Page 477 U. S. 466 failure to litigate adequately a Fourth Amendment claim); Rose v. Mitchell, 443 U. S. 545 (1979) (declining to extend Stone v. Powell to claims of
racial discrimination in the selection of grand jury foremen); Jackson v. Virginia, 443 U. S. 307 (1979) (declining to extend Stone v. Powell to claims by
state prisoners that the evidence in support of their convictions
was not sufficient to permit a rational trier of fact to find guilt
beyond a reasonable doubt, as required under In re
Winship, 397 U. S. 358 (1970)).

															Despite the plurality's intimations, we simply have never held
that federal habeas review of properly presented, nondefaulted
constitutional claims is limited either to constitutional
protections that advance the accuracy of the factfinding process at
trial or is available solely to prisoners who can make out a
colorable showing of factual innocence. On the contrary, we have
stated expressly that, on habeas review,

															"what we have to deal with is not the petitioners' innocence or
guilt, but solely the question whether their constitutional rights
have been preserved." Moore v. Dempsey, 261 U. S. 86 , 261 U. S. 87 -88
(1923) (Holmes, J.). Congress has vested habeas jurisdiction in the
federal courts over all cases in which the petitioner claims he has
been detained "in violation of the Constitution or laws . . . of
the United States," 28 U.S.C. § 2241(c)(3), and, "[t]he
constitutional rights of criminal defendants are granted to the
innocent and the guilty alike." Kimmelman v. Morrison,
ante at 477 U. S. 380 .
Thus:

															"Even if punishment of the 'guilty' were society's highest value
. . . in a constitution that [some] Members of this Court would
prefer, that is not the ordering of priorities under the
Constitution forged by the Framers. . . . Particular constitutional
rights that do not affect the fairness of factfinding procedures
cannot for that reason be denied at the trial itself. What possible
justification then can there be for denying vindication of such
rights on federal habeas when state courts do deny those rights Page 477 U. S. 467 at trial?" Stone v. Powell, 428 U.S. at 428 U. S.
523 -525 (BRENNAN, J., dissenting).

															The habeas statute itself certainly does not provide any
justification, either for limiting the scope of habeas review
generally or for narrowly defining the ends of justice to make
habeas relief available on a successive petition only to prisoners
who can make a colorable showing of factual innocence.

															With respect to the general scope of federal habeas review, §
2241, which grants federal courts the statutory authority to issue
writs of habeas corpus, makes no mention of guilt and innocence or
of the need to balance the interests of the State and the prisoner.
In pertinent part, it states simply that

															"[t]he writ of habeas corpus shall not extend to a prisoner
unless . . . [h]e is in custody in violation of the Constitution or
laws or treaties of the United States."

															28 U.S.C. § 2241(c)(3). Nor does anything in the legislative
history of the habeas statute support the view that Congress
intended to limit habeas review in the manner proposed by the
Court. For more than 30 years, our construction of the habeas
statute to permit federal collateral review of virtually all
nondefaulted constitutional claims -- with the narrow exception,
over dissent, of Fourth Amendment claims -- without reference to
actual guilt or innocence or to the competing interests of the
State and the prisoner, has been unmistakably clear. See Brown
v. Allen, 344 U. S. 443 (1953). Several times during this period, Congress has had the
Court's interpretation expressly brought to its attention through
bills proposing drastic revision of federal habeas jurisdiction. See L. Yackle, Postconviction Remedies § 19, pp. 91-92
(1981) (describing relevant bills introduced in past several
Congresses). Each of those times, Congress steadfastly refused to
make any significant changes in this Court's construction of that
jurisdiction. Id. § 19, at 92 ("[S]ince 1948, the only
amendments to the [habeas] statutes that the Congress has approved
have . . . simply tracked contemporaneous Supreme Court decisions")
(footnote omitted). The fact that Page 477 U. S. 468 Congress has been made aware of our longstanding construction,
and has chosen to leave it undisturbed, "lends powerful support to
[its] continued viability." Square D Co. v. Niagara Frontier
Tariff Bureau, Inc., 476 U. S. 409 , 476 U. S. 419 (1986).

															With regard to the specific question whether factual innocence
is a precondition for review of a successive habeas petition,
neither § 2244(b) -- which governs applications for writs of habeas
corpus to state courts that are filed subsequent to the disposition
of a prior federal habeas petition, its legislative history, nor
the Rules Governing Section 2254 Cases in the United States
District Courts (hereafter Rules Governing Section 2254), support
the plurality's position. Section 2244(b), as amended in 1966,
states in relevant part that a subsequent petition

															" need not be entertained . . . unless the application
alleges and is predicated on a factual or other ground not
adjudicated on the hearing of the earlier application for the writ,
and unless the court . . . is satisfied that the applicant has not
on the earlier application deliberately withheld the newly asserted
ground or otherwise abused the writ."

															(Emphasis added.) By its very terms, then, § 2244(b) merely
informs district courts that they need not consider successive
petitions; that is, the statute gives district courts the discretion not to hear such petitions. Similarly, Rule
9(b) of the Rules Governing Section 2254, which were adopted in
1976, states that a

															"second or successive petition may be dismissed if the
judge finds that it fails to allege new or different grounds for
relief and the prior determination was on the merits or, if new and
different grounds are alleged, the judge finds that the failure of
the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ."

															(Emphasis added.)

															Congress clearly intended that courts continue to determine
which successive petitions they may choose not to hear by reference
to the Sanders ends-of-justice standard. First, nothing in
the House or Senate Reports accompanying the bill that amended §
2244 in 1966 suggests that Congress Page 477 U. S. 469 wished to abandon the Sanders standard. See H.R.Rep. No. 1892, 89th Cong., 2d Sess. (1966); S.Rep. No. 1797,
89th Cong., 2d Sess. (1966). Second, the legislative history of the
Rules Governing Section 2254 demonstrates that, in adopting Rule
9(b), Congress expressly endorsed the existing case law governing
subsequent petitions, and cited Sanders. [ Footnote 2/4 ] H.R.Rep. No. 94-1471, pp. 5-6 (1976).
Third, the Advisory Committee's Notes relating to Rule 9(b) state
that Sanders provides the relevant standards for
subsequent petitions, and indicate that the district courts have
the discretion to refuse to entertain vexatious and meritless
subsequent petitions:

															"In Sanders v. United States, 373 U. S. 1 (1963), the court, in dealing with the problem of successive
applications, stated:"

															" Controlling weight may be given to denial of a prior
application for federal habeas corpus or § 2255 relief only if (1)
the same ground presented in the subsequent application was
determined adversely to the applicant on the prior application, (2)
the prior determination was on the merits, and (3) the ends of
justice would not be served by reaching the merits of the
subsequent application."

															"[Emphasis added]."

															" * * * *" " Sanders, [28] U.S.C. § 2244, and [Rule 9(b)] make it
clear that the court has the discretion to entertain a successive
application."

															" * * * *" "Subdivision (b) is consistent with the important and well
established purpose of habeas corpus. It does not Page 477 U. S. 470 eliminate a remedy to which the petitioner is rightfully
entitled. However, in Sanders, the court pointed out:"

															" Nothing in the traditions of habeas corpus requires the
federal courts to tolerate needless piecemeal litigation, or to
entertain collateral proceedings whose only purpose is to vex,
harass, or delay."

															"373 U.S. at 373 U. S. 18 ."

															". . . In rare instances, the court may feel a need to entertain
a petition alleging grounds that have already been decided on the
merits. Sanders, 373 U.S. at 373 U. S.
1 , 373 U. S. 16 . However, abusive
use of the writ should be discouraged, and instances of abuse are
frequent enough to require a means of dealing with them. For
example, a successive application, already decided on the merits,
may be submitted in the hope of getting before a different judge in
multijudge courts. . . . This subdivision is aimed at screening out
the abusive petitions . . . so that the more meritorious petitions
can get quicker and fuller consideration."

															28 U.S.C., p. 358.

															The Advisory Committee gave no indication that the problem Rule
9(b), or § 2244(b), seeks to correct is that of a guilty prisoner
seeking repeated federal review of the same constitutional claim.
Rather, it is apparent that the Rule attempts to remedy only the
problem posed by vexatious and meritless subsequent petitions. The
Committee explicitly contemplated, though, that nonabusive,
"meritorious [subsequent] petitions" would receive "ful[l]
consideration." Ibid. When we review habeas cases, our task is "to give fair effect to
the habeas corpus jurisdiction enacted by Congress." Brown v.
Allen, 344 U.S. at 344 U. S. 500 (opinion of Frankfurter, J.). With respect to successive habeas
petitions, giving "fair effect" to the intent of Congress is to
construe "the ends of justice" as Sanders did -- to mean
that it is within the sound discretion of the court to refuse
to hear abusive, meritless petitions and to hear petitions in which the prisoner advances a potentially meritorious
claim and provides a good justification Page 477 U. S. 471 for returning to court a second time with the same claim.
[ Footnote 2/5 ]

															In the instant case, respondent alleged a potentially
meritorious Sixth Amendment claim. He also advanced a complete
justification for returning to federal court a second time with
this claim. Between his first and second federal habeas petitions,
this Court decided United States v. Henry, 447 U.
S. 264 (1980), a case in which the facts were
substantially similar to the facts of respondent's case [ Footnote 2/6 ] and in which we elaborated on
the Sixth Amendment's prohibition against government interference
with an accused's right to counsel, a prohibition that we had
previously recognized in Massiah v. United States, 377 U. S. 201 (1964), and Brewer v. Williams, 430 U.
S. 387 (1977). The intervention of Henry,
supra, clarified the appropriate analysis for Sixth Amendment
claims like respondent's; thus, the Court of Appeals did not abuse
its discretion by granting reconsideration of respondent's
constitutional claim under the dispositive legal standard.
[ Footnote 2/7 ] Page 477 U. S. 472 II The Court holds that the Court of Appeals erred with respect to
the merits of respondent's habeas petition. According to the Court,
the Court of Appeals failed to accord § 2254(d)'s presumption of
correctness to the state trial court's findings that respondent's
cellmate, Lee, "at no time asked any questions" of respondent
concerning the pending charges, and that Lee only listened to
respondent's "spontaneous" and "unsolicited" statements, App.
62-63. As a result, the Court concludes, the Court of Appeals
failed to recognize that this case presents the question, reserved
in Henry, supra, whether the Sixth Amendment forbids the
admission into evidence of an accused's statements to a jailhouse
informant who was "placed in close proximity, but [made] no effort
to stimulate conversations about the crime charged." Id. at 447 U. S. 271 ,
n. 9. I disagree with the Court's characterization of the Court of
Appeals' treatment of the state court's findings and, consequently,
I disagree with the Court that the instant case presents the
"listening post" question.

															The state trial court simply found that Lee did not ask
respondent any direct questions about the crime for which
respondent was incarcerated. App. 62-63. The trial court considered
the significance of this fact only under state precedents, which
the court interpreted to require affirmative "interrogation" by the
informant as a prerequisite to a constitutional violation. Id. at 63. The court did not indicate whether it referred
to a Fifth Amendment or to a Sixth Amendment violation in
identifying "interrogation" as a precondition to a violation; it
merely stated that

															"the utterances made by [respondent] to Lee were unsolicited,
and voluntarily Page 477 U. S. 473 made and did not violate the defendant's Constitutional
rights." Ibid. The Court of Appeals did not disregard the state court's finding
that Lee asked respondent no direct questions regarding the crime.
Rather, the Court of Appeals expressly accepted that finding, Wilson v. Henderson, 742 F.2d 741, 745 (CA2 1984) ("[e]ven
accepting that Lee did not ask Wilson any direct questions . . ."),
but concluded that, as a matter of law, the deliberate elicitation
standard of Henry, supra, and Massiah, supra, encompasses other, more subtle forms of stimulating incriminating
admissions than overt questioning. The court suggested that the
police deliberately placed respondent in a cell that overlooked the
scene of the crime, hoping that the view would trigger an
inculpatory comment to respondent's cellmate. [ Footnote 2/8 ] The court also observed that, while
Lee asked respondent no questions, Lee nonetheless stimulated
conversation concerning respondents' role in the Star Taxicab
Garage robbery and murder by remarking that respondent's
exculpatory story did not " sound too good,'" and that he had
better come up with a better one. 742 F.2d at 745. Thus, the Court
of Appeals concluded that respondent's case did not present the
situation reserved in Henry, where an accused makes an
incriminating remark within the hearing of a jailhouse informant,
who "makes no effort to stimulate conversations about the crime
charged." 447 U.S. at 447 U. S. 271 ,
n. 9. Instead, the court determined this case to be virtually
indistinguishable from Henry. The Sixth Amendment guarantees an accused, at least after the
initiation of formal charges, the right to rely on counsel as the
"medium" between himself and the State. Maine v. Moulton, 474 U. S. 159 , 474 U. S. 176 (1985). Accordingly, the Sixth Amendment "imposes on the State an
affirmative obligation to respect and preserve the accused's choice
to Page 477 U. S. 474 seek [the assistance of counsel]," id. at 474 U. S. 171 ,
and therefore

															"[t]he determination whether particular action by state agents
violates the accused's right to . . . counsel must be made in light
of this obligation." Id. at 474 U. S. 176 .
To be sure, the Sixth Amendment is not violated whenever, "by luck
or happenstance," the State obtains incriminating statements from
the accused after the right to counsel has attached. It is
violated, however, when

															"the State obtains incriminating statements by knowingly
circumventing the accused's right to have counsel present in a
confrontation between the accused and a state agent." Ibid. (footnote omitted). As we explained in Henry, where the accused has not waived his right to
counsel, the government knowingly circumvents the defendant's right
to counsel where it "deliberately elicit[s]" inculpatory
admissions, 447 U.S. at 447 U. S. 270 ,
that is,

															"intentionally creat[es] a situation likely to induce [the
accused] to make incriminating statements without the assistance of
counsel." Id. at 447 U. S.
274 .

															In Henry, we found that the Federal Government had
"deliberately elicited" incriminating statements from Henry based on the following circumstances. The jailhouse
informant, Nichols, had apparently followed instructions to obtain
information without directly questioning Henry, and without
initiating conversations concerning the charges pending against
Henry. We rejected the Government's argument that, because Henry
initiated the discussion of his crime, no Sixth Amendment violation
had occurred. We pointed out that, under Massiah v. United
States, 377 U. S. 201 (1964), it is irrelevant whether the informant asks pointed
questions about the crime or "merely engage[s] in general
conversation about it." 447 U.S. at 447 U. S.
271 -272, and n. 10. Nichols, we noted,

															"was not a passive listener; . . . he had 'some conversations
with Mr. Henry' while he was in jail and Henry's incriminatory
statements were 'the product of this conversation.'" Id. at 447 U. S.
271 . Page 477 U. S. 475 In deciding that Nichols' role in these conversations amounted
to deliberate elicitation, we also found three other factors
important. First, Nichols was to be paid for any information he
produced, and thus had an incentive to extract inculpatory
admissions from Henry. Id. at 447 U. S. 270 .
Second, Henry was not aware that Nichols was acting as an
informant. Ibid. "Conversation stimulated in such
circumstances," we observed, "may elicit information that an
accused would not intentionally reveal to persons known to be
Government agents." Id. at 447 U. S. 273 .
Third, Henry was in custody at the time he spoke with Nichols. This
last fact is significant, we stated, because

															"custody imposes pressures on the accused [and] confinement may
bring into play subtle influences that will make him particularly
susceptible to the ploys of undercover Government agents." Id. at 447 U. S. 274 .
We concluded that, by

															"intentionally creating a situation likely to induce Henry to
make incriminating statements without the assistance of counsel,
the Government violated Henry's Sixth Amendment right to
counsel." Ibid. (footnote omitted).

															In the instant case, as in Henry, the accused was
incarcerated, and therefore was "susceptible to the ploys of
undercover Government agents." Ibid. Like Nichols, Lee was
a secret informant, usually received consideration for the services
he rendered the police, and therefore had an incentive to produce
the information which he knew the police hoped to obtain. Just as
Nichols had done, Lee obeyed instructions not to question
respondent and to report to the police any statements made by the
respondent in Lee's presence about the crime in question. App. 62.
And, like Nichols, Lee encouraged respondent to talk about his
crime by conversing with him on the subject over the course of
several days and by telling respondent that his exculpatory story
would not convince anyone without more work. However, unlike the
situation in Henry, a disturbing visit from respondent's
brother, rather than a conversation with the informant, seems to
have been the immediate catalyst for respondent's Page 477 U. S. 476 confession to Lee. Ante at 477 U. S. 440 ; Wilson v. Henderson, 82 Civ. 4397 (SDNY, Mar. 30, 1983),
App. to Pet. for Cert. 25a-26a. While it might appear from this
sequence of events that Lee's comment regarding respondent's story
and his general willingness to converse with respondent about the
crime were not the immediate causes of respondent's admission, I
think that the deliberate elicitation standard requires
consideration of the entire course of government behavior.

															The State intentionally created a situation in which it was
foreseeable that respondent would make incriminating statements
without the assistance of counsel, Henry, 447 U.S. at 447 U. S. 274 -- it assigned respondent to a cell overlooking the scene of the
crime and designated a secret informant to be respondent's
cellmate. The informant, while avoiding direct questions,
nonetheless developed a relationship of cellmate camaraderie with
respondent and encouraged him to talk about his crime. While the coup de grace was delivered by respondent's brother, the
groundwork for respondent's confession was laid by the State.
Clearly the State's actions had a sufficient nexus with
respondent's admission of guilt to constitute deliberate
elicitation within the meaning of Henry. I would affirm
the judgment of the Court of Appeals.

															[ Footnote 2/1 ]

															While a majority of the Court today rejects, either implicitly
or explicitly, this argument, I believe it appropriate to explain
why the plurality's view is incorrect.

															[ Footnote 2/2 ]

															The plurality asserts, ante at 477 U. S.
455 -456, n. 18, that it addresses only the standard
applicable to successive habeas petitions, and that I
mischaracterize its opinion by suggesting that the dictum,
contained in Part II-B of the plurality's opinion, regarding the
purpose and the scope of the Great Writ has any significance. While
the plurality correctly states that what would have been the
holding of Part III of its opinion, had that Part commanded a
Court, would have directly governed only successive petitions,
methinks my Brothers and Sister protest too much about their
general discussion of the writ. In order to mask the fact that it
fashions its factual innocence standard from whole cloth, the
plurality attempts to justify that standard by reference to the
plurality's view of "the historic purpose of habeas corpus." Ante at 477 U. S. 454 ; see also ante at 477 U. S.
448 -452. Consequently, in order to comment upon the
plurality's standard for successive petitions, I find it necessary
first to address the plurality's treatment of the general scope and
purposes of the Great Writ. Thus, the "first six pages of the
dissent" has as much "relevance" to this case as does Part II-B of
the plurality's opinion. Ante at 477 U. S.
455 -456, n. 18.

															The plurality further chastises me for failing to propose a
precise definition of the "ends of justice" standard of Sanders
v. United States, 373 U. S. 1 , 373 U. S. 15 (1963), and for adhering to Sanders by leaving the
decision whether to hear successive petitions to the "sound
discretion of the federal trial judges." Id. at 373 U. S. 18 . The
plurality argues that Sanders left open

															"the critical question of what considerations should inform a
court's decision that successive review of an issue previously
decided will serve the 'ends of justice.'" Ante at 477 U. S.
455 -456, n. 18. Sanders did leave that question
open, but in a different sense than the plurality suggests. In Sanders, we acknowledged that the meaning of the phrase
" the ends of justice' . . . cannot be too finely
particularized," 373 U.S. at 373 U. S. 17 ,
and, in recognition of this fact, we left it to the "sound
discretion" of federal trial judges to make case-by-case
determinations of what the ends of justice require. The plurality,
while purporting merely to elucidate Sanders' "sound
discretion" standard, would replace discretion with a single legal
standard -- actual innocence. And, while the plurality asserts that
there is a need for a more refined standard, it offers no evidence
that, over the 23 years since Sanders was decided, federal
trial courts have had difficulty applying the "sound discretion"
standard, or have so abused their discretion with respect to
successive petitions that revision of our longstanding
interpretation of § 2244(b) is warranted. [ Footnote 2/3 ]

															In other words, we have recognized an exception to the exercise
of federal jurisdiction in the unusual cases where respect for the
procedures of state courts make this appropriate; such an exception
is similar to abstention rules. See, e.g., Younger v.
Harris 401 U. S. 37 (1971); Burford v. Sun Oil Co., 319 U.
S. 315 (1943). However, like other judicially created
exceptions to federal jurisdiction conferred by Congress, it is a
narrow exception to the "virtually unflagging obligation" to
exercise that jurisdiction. Colorado River Water Conservation
Dist. v. United States, 424 U. S. 800 , 817
(1976).

															[ Footnote 2/4 ]

															While the discussion in the House Report regarding Rule 9(b)
focuses on that portion of the Rule that governs abuse of the writ,
rather than petitions that repeatedly allege the same claims, it is
clear that the Committee intended Rule 9(b) to conform in its
entirety to existing case law, particularly to Sanders v.
United States. See H.R.Rep. No. 94-1471, pp. 5-6
(1976).

															[ Footnote 2/5 ]

															I agree with the plurality that actual innocence constitutes a
sufficient justification for returning to court a second time with
the same claim. I do not agree, though, that a prisoner's inability
to make a showing of actual innocence negates an otherwise good
justification, such as respondent's.

															[ Footnote 2/6 ]

															The facts of this case demonstrate the arbitrariness of the
Court's rule. The initial federal habeas petitions filed by
respondent and by Henry presented virtually identical claims.
Because our decision in United States v. Henry may have
altered the law of the Circuit in which respondent's prior petition
failed, it is only just that respondent's claim be reviewed under
the proper constitutional standards.

															[ Footnote 2/7 ]

															The plurality's factual-innocence standard also presents some
significant institutional problems. First, this standard requires
the federal courts to function in much the same capacity as the
state trier of fact -- the federal courts must make a rough
decision on the question of guilt or innocence. This requirement
diverts the federal courts from the central purpose of habeas
review -- the evaluation of claims that convictions were obtained
in violation of the Constitution. Second, it is unclear what
relevance the plurality's standard would have in a case in which a
prisoner alleges constitutional error in the sentencing phase of a
capital case. Guilt or innocence is irrelevant in that context;
rather, there is only a decision made by representatives of the
community whether the prisoner shall live or die. Presumably, then,
the plurality's test would not be applicable to such claims.

															[ Footnote 2/8 ]

															The Court of Appeals noted that "[a]s soon as Wilson arrived and
viewed the garage, he became upset and stated that someone's
messing with me.'" 742 F.2d at 745. JUSTICE STEVENS, dissenting.

															When a district court is confronted with the question whether
the "ends of justice" would be served by entertaining a state
prisoner's petition for habeas corpus raising a claim that has been
rejected on a prior federal petition for the same relief, one of
the facts that may properly be considered is whether the petitioner
has advanced a "colorable claim of innocence." But I agree with
JUSTICE BRENNAN that this is not an essential element of every just
disposition of a successive petition. More specifically, I believe
that the District Court did not abuse its discretion in
entertaining the petition in this case, although I would also
conclude that this is one of those close cases in which the
District Court could have properly decided that a second review of
the same contention was Page 477 U. S. 477 not required, despite the intervening decision in United
States v. Henry, 447 U. S. 264 (1980).

															On the merits, I agree with the analysis in Part II of JUSTICE
BRENNAN's dissent. Accordingly, I also would affirm the judgment of
the Court of Appeals.

Summary: The Supreme Court reversed a Court of Appeals decision that granted habeas corpus relief to respondent Wilson, who argued that his Sixth Amendment right to counsel was violated when his incriminating statements to a jailhouse informant were used against him in a New York court. The Court held that the Court of Appeals erred in applying the "deliberately elicited" test from Massiah v. United States to this case, as the informant had not stimulated conversations with Wilson or sought to elicit incriminating information. The Court also addressed the procedural question of successive habeas petitions, with Justice Powell concluding that "actual innocence" is not required for a court to consider a successive petition, but is a sufficient justification. The Court remanded the case for further proceedings.