518 U.S. 152116 S. Ct. 2074135 L.Ed.2d 457
GRAYv.NETHERLAND, WARDENCertiorari to the United States Court of Appeals for the Fourth Circuit.
No. 95-6510.
Argued April 15, 1996
Decided June 20, 1996

Syllabus
At the start of petitioner's Virginia trial for the capital murder of  Richard McClelland, the prosecution acknowledged that, should the trial  reach the penalty phase, it would introduce petitioner's admissions to  other inmates that he had previously murdered Lisa Sorrell and her  daughter.  The day that petitioner was convicted of the McClelland  murder, the prosecution disclosed that it would introduce additional  evidence at sentencing linking petitioner to the Sorrell murders,  including  crime scene photographs and testimony from the Sorrell  investigating detective and medical examiner.  Counsel moved to exclude evidence pertaining to any felony for which petitioner had not been  charged.  Although counsel also complained that he  was not prepared for  the additional evidence, and that the defense was taken by surprise, he  did not request a continuance.  The court denied the motions to exclude,  and, after a hearing, petitioner was sentenced to death. After  exhausting his state remedies, he sought federal habeas relief,  claiming, as relevant here, that inadequate notice prevented him from  defending against the evidence introduced at the penalty phase, and that  the Commonwealth failed to disclose exculpatory evidence regarding the Sorrell murders.  The District Court initially denied relief, finding  that petitioner had no constitutional right to notice of individual  testimony that the Commonwealth planned to introduce at sentencing, and  that the claim made under Brady v. Maryland, 373 U. S. 83, was  procedurally barred under Virginia law. However, the court later  amended its judgment, concluding that petitioner was denied due process  when the Commonwealth failed to provide fair notice of what Sorrell  murder evidence would be introduced.  In reversing, the Fourth Circuit  found that granting habeas relief would give petitioner  the benefit of a  new rule of federal constitutional law, in violation of Teague v. Lane,  489 U. S. 288.  The grant of certiorari is limited to petitioner's  notice-of-evidence and Brady claims.
Held:
1.  Petitioner's Brady claim is procedurally defaulted.  He never raised  that claim in state court, and, because he knew of its grounds when he  filed his first state petition, Virginia law precludes review of the  defaulted claim in any future state habeas proceeding.  This provides an  independent and adequate state-law ground for the conviction and  sentence, and thus prevents federal habeas review of the defaulted  claim, unless petitioner can demonstrate cause and prejudice for the  default. Teague v. Lane, supra, at 298.  Because he has made no such demonstration, his claim is not cognizable in a federal suit for the  writ.  Pp. 8-9.
2.  The misrepresentation claim raised by petitioner in his brief here  is remanded for the Court of Appeals to determine whether he in fact  raised that issue below.  Pp. 9-13.
(a) In his brief, petitioner relies on two separate due process  challenges to the manner in which the prosecution introduced evidence  about the Sorrell murders: a notice-of-evidence claim alleging that the  Commonwealth failed to give adequate notice of the evidence it would  use, and a misrepresentation claim alleging that the Commonwealth  mislead him about the evidence it intended to present.  For purposes of exhausting state remedies, a habeas claim must include reference to a  specific federal constitutional guarantee, as well as a statement of the  facts entitling a petitioner to relief.  Picard v. Connor, 404 U. S.  270.  A petitioner does not satisfy the exhaustion requirement by  presenting the state courts only with the facts necessary to state a  claim for relief.  Nor is it enough to make a general appeal to a  constitutional guarantee as broad as due process to present the  "substance" of such a claim to a state court.  Anderson v. Harless, 459  U. S. 4.   Gardner v. Florida, 430 U. S. 349-on which petitioner relies  for his notice-of-evidence claim-and In re Ruffalo, 390 U. S. 544, Raley v. Ohio, 360 U. S. 423, and Mooney v. Holohan, 294 U. S. 103-on which he  relies for his misrepresentation claim-arise in widely differing  contexts.  The two claims are separate.  Pp. 9-12.
(b) If petitioner never raised the misrepresentation issue in state  proceedings, federal habeas review would be barred unless he could  demonstrate cause and prejudice for his failure  to raise the claim in  state proceedings.  However, if it was addressed in the federal  proceedings, the Commonwealth would have been obligated to raise  procedural default as a defense or lose the right to assert the defense  thereafter.  If the Court of Appeals determines that the issue was  raised, it should consider whether the Commonwealth has preserved any  defenses and proceed to consider the claim and preserved defenses as  appropriate.  Pp. 12-13.
3.  Petitioner's notice-of-evidence claim would require the adoption of  a new constitutional rule.  Pp. 13-17.
(a) Petitioner contends that he was deprived of adequate notice when he  received only one day's notice of the additional evidence, but, rather  than seeking a continuance, he sought to have all such evidence  excluded.  For him to prevail, he must establish that due process  requires that he receive more than a day's notice of the Commonwealth's  evidence.  He must also show that due process required a continuance  whether or not he sought one, or that, if he chose not to seek a  continuance, exclusion was the only appropriate remedy.  Only the  adoption of a new constitutional rule could establish these  propositions.  A defendant has the right to notice of the charges  against which he must defend.  In re Ruffalo, supra.  However, he does  not have a constitutional right to notice of the evidence which the   state plans to use to prove the charges, and Brady, which addressed only exculpatory evidence, did not create one.  Weatherford v. Bursey, 429 U.  S. 545, 559.  Gardner v. Florida,  supra, distinguished. Even if notice  were required, exclusion of evidence is not the sole remedy for a  violation of such a right, since a continuance could minimize prejudice.  Taylor v. Illinois, 484 U. S. 400, 413. Petitioner made no such request  here, and in view of his insistence on exclusion, the trial court might  well have felt that it would have been interfering with counsel's  tactical decision to order a continuance on its own motion.  Pp. 15-17.
(b) The new rule petitioner proposes does not fall within Teague's  second exception, which is for watershed rules of criminal procedure  implicating a criminal proceeding's fundamental fairness and accuracy.  Whatever one may think of the importance of petitioner's proposed rule,  it has none of the primacy and centrality of the rule adopted in Gideon  v. Wainwright, 372 U. S. 335, or other rules which may be thought to be  within the exception.  Saffle v. Parks, 494 U. S. 484, 495. P. 17.  58  F. 3d 59, vacated and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor,  Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a  dissenting opinion.  Ginsburg, J., filed a dissenting opinion, in which  Stevens, Souter, and Breyer, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in  the preliminary print of the United States Reports.  Readers are  requested to notify the Reporter of Decisions, Supreme Court of the  United States, Washington, D.C. 20543, of any typographical or other  formal errors, in order that corrections may be made before the  preliminary print goes to press.
Chief Justice Rehnquist delivered the opinion of the Court.


1
Petitioner, convicted of capital murder, complains that his right to due process of law under the Fourteenth Amendment was violated  because he was not given adequate notice of some of the evidence the  Commonwealth intended to use against him at the penalty hearing of his  trial. We hold that this claim would necessitate a "new rule," and that  therefore it does not provide a basis on which he may seek federal  habeas relief.

I.
A.

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


3
Petitioner drove the car back to the Murphy's Mart, where he forced McClelland at gunpoint to reopen the store.  They filled three  gym bags with money, totaling between $12,000 and $13,000. Petitioner  drove McClelland and Tucker to a service station, bought gasoline for  his car and for a gas can in the car's trunk, and proceeded to a remote  side road.  He took McClelland  15 to 20 feet behind the car and ordered  him to lie down.  While McClelland begged petitioner not to hurt or  shoot him, petitioner assured him he would not be harmed.  Having thus assured McClelland, petitioner fired 6 pistol shots into the back of his  head in rapid succession.  Id., at 341-342, 356 S. E. 2d, at 172-173.


4
Leaving McClelland's dead body on the side road, petitioner and  Tucker returned to the intersection where they had seized him.  Petitioner, telling Tucker he wanted to destroy McClelland's car as  evidence, doused its interior with gasoline  and lit it with a match.  Id., at 341-342, 356 S. E. 2d, at 173.


5
Petitioner and Tucker were later arrested and indicted in the Circuit Court of the City of Suffolk on several counts, including capital murder.  Having evidence that petitioner had announced before  the killing that "he was going to get" McClelland for having fired his  wife from her job as a saleswoman at the Murphy's Mart, and that  petitioner had told other witnesses after the killing that he had  performed it, the  prosecutor entered into a plea bargain with Tucker.  In return for being tried for first-degree murder instead of capital  murder, Tucker would testify at petitioner's trial about events leading  up to the killing and would identify petitioner as the actual "trigger man."  Id., at 331, 356 S. E. 2d, at 167.

B.

6
On Monday, December 2, 1985, petitioner's trial began. Petitioner's counsel moved that the trial court order the prosecution to  disclose the evidence it planned to introduce in the penalty phase.  The  prosecutor acknowledged that "in the event [petitioner] is found guilty  we do intend to introduce evidence of statements he has made to other  people about other crimes he has committed of which he has not been  convicted." 14 Record 8.  In particular, the prosecution intended to  show that petitioner had admitted to a notorious double-murder in Chesapeake, a city adjacent to Suffolk.  Lisa Sorrell and her 3-year-old  daughter, Shanta, had been murdered five months before McClelland was  killed.  The prosecutor told petitioner's counsel in court that the only  evidence he would introduce would be statements by petitioner to Tucker  or fellow inmates that he committed these murders.  Id., at 11.


7
On Thursday, December 5, 1985, the jury convicted petitioner on  all counts.  That evening, the prosecution informed petitioner's counsel  that the Commonwealth would introduce evidence, beyond petitioner's own  admissions, linking petitioner to the Sorrell murders.  The additional  evidence included photographs of the crime scene and testimony by the  police detective who investigated the murders and by the state medical examiner who performed autopsies on the Sorrells' bodies.  The testimony  was meant to show that the manner in which Lisa and Shanta Sorrell had  been killed resembled the manner in which McClelland was killed.  The  next morning, petitioner's counsel made two motions "to have excluded  from evidence during [the] penalty trial any evidence pertaining to any  . . . felony for which the defendant has not yet been charged."  18 id.,  at 776. Counsel argued that the additional evidence exceeded the scope  of unadjudicated-crime evidence admissible for sentencing under Virginia  law, because "[i]n essence, what [the prosecutor is] doing is trying   [the Sorrell] case in the minds of the jurors." Id., at 724 (citing  Watkins v. Commonwealth, 229 Va. 469, 331 S. E. 2d 422 (1985), cert.  denied, 475 U. S. 1099 (1986)).  Although counsel also complained that  he was not "prepared for any of this [additional evidence], other than   [that petitioner] may have made some incriminating statements," 18  Record 725, and that the "[d]efense was taken by surprise," id., at 777,  he never requested a continuance.  The trial court denied the motions to exclude.


8
During the sentencing phase, Tucker testified that, shortly after the McClelland murder, Gray pointed to a picture of Lisa Sorrell  in a newspaper and told Tucker that he had "knocked off" Sorrell.  Petitioner's counsel did not cross-examine Tucker. Officer Michael  Slezak, who had investigated the Sorrell murders, testified that he  found Lisa's body in the front seat of a partially burned automobile and  Shanta's body in the trunk.  Dr. Faruk Presswalla, the medical examiner  who had performed autopsies on the bodies, testified that Lisa was  killed by six bullets to the head, shot from a .32-caliber gun.  Gray,  supra, at 345, 356 S. E. 2d, at 175.  Petitioner's counsel did not cross-examine Dr. Presswalla, and only cross-examined Officer Slezak to  suggest that McClelland's murder may have been a "copycat" murder,  committed by a different perpetrator.  18 Record 793, 802.1


9
The jury fixed petitioner's sentence for McClelland's murder at  death. The trial court entered judgment on the verdicts for all the  charges against petitioner and sentenced him to death. The Virginia  Supreme Court affirmed, 233 Va. 313, 356 S. E. 2d 157, and we denied  certiorari, Gray v. Virginia, 484 U. S. 873 (1987).  The Suffolk Circuit  Court dismissed petitioner's state petition for a writ of habeas corpus.  The Virginia Supreme Court affirmed the dismissal, and we denied  certiorari. Gray v. Thompson, 500 U. S. 949 (1991).

C.

10
Petitioner then sought a writ of habeas corpus from the United  States District Court for the Eastern District of Virginia.  With  respect to the Sorrell murders, he argued, inter alia, that he had  "never been convicted of any of these crimes nor was he awaiting trial  for these crimes," that the Commonwealth "did not disclose its  intentions to use the Sorrell murders as evidence against [him] until  such a late date that it was impossible for [his] defense counsel  reasonably to prepare or defend against such evidence at trial," and  that Tucker "`sold' his testimony to the Commonwealth for . . . less  than a  life sentence."  1 Joint Appendix in No. 94-4009 (CA4), pp. 32-33 (hereinafter J. A.).


11
The Commonwealth moved to dismiss the petition.  To clarify its  arguments against petitioner's Sorrell murder claim, it characterized  petitioner's allegations as seven separate subclaims.  The first  subclaim asserted that petitioner was given "inadequate notice of the  evidence which the Commonwealth intended to introduce to permit him to  defend against it," and the third, relying on Brady v. Maryland, 373 U.  S. 83 (1963), asserted that "[t]he Commonwealth failed to disclose  evidence tending to prove that someone else had committed the Sorrell murders."2  Respondent's Brief in Support of Motion to Dismiss in No. 3:91CV693 (ED Va.), p. 2.  According to the State, the notice-of-evidence subclaim was meritless and could not be the basis for  relief in federal habeas corpus proceedings because it sought the  retroactive application of a new rule of constitutional law.  Id., at  18-19, 19-20. The Commonwealth alleged that the Brady subclaim had not  been presented to the state courts on direct appeal or in state habeas  corpus proceedings, and was thus procedurally barred under Virginia Code Section(s) 8.01-654(B)(2).  Respondent's Brief in Support of Motion to  Dismiss, supra, at 19.


12
Initially, the District Court dismissed the habeas petition. The court adopted the Commonwealth's characterization of petitioner's  Sorrell claim.  See 1 J. A. 193.  The court held that petitioner was not  entitled to relief on the notice-of-evidence subclaim, because he "has  no constitutional right to notice of individual items of testimony which  the Commonwealth intends to introduce at the penalty phase."  Id., at 194.  The court declined to review the Brady subclaim because it was  procedurally barred.  1 J. A. 194.


13
Later, on petitioner's motion, the District Court amended its  judgment to find within petitioner's Sorrell claim a specific due  process claim about the admissibility of the Sorrell murder evidence.  Id., at 252. (In amending this judgment, the court announced that it  remained unchanged as to the remaining claims, which it had dismissed.  Id., at 251.)  After holding an evidentiary hearing on the Sorrell  claim, the District Court ordered that petitioner be granted a writ of  habeas corpus.  The court characterized the claim as an allegation that  petitioner "was denied due process of law under  the Fourteenth Amendment  of the United States Constitution because the Commonwealth failed to provide fair notice that evidence concerning the Sorrell murders would  be introduced at his penalty phase."  App. 348.  Citing Gardner v.  Florida, 430 U. S. 349, 357-359 (1977), the court determined that there  was a constitutional defect in petitioner's penalty phase hearing:  "Petitioner was confronted and surprised by the testimony of officer  Slezak and Dr. Presswalla."  App. 349.  This defect "violated   [petitioner's] right to fair notice and rendered the  hearing clearly  unreliable," because petitioner's attorneys had  less than one day's  notice of the additional evidence to be used against their client.  Id.,  at 349-350.


14
The Commonwealth appealed, arguing to the Fourth Circuit that to  grant petitioner habeas relief would give him the benefit of a new rule  of federal constitutional law, in violation of Teague v. Lane, 489 U. S.  288 (1989).  The Fourth Circuit reversed the judgment granting the writ,  rejected petitioner's cross-appeals from the dismissal of several other  claims, and remanded with directions that the habeas corpus petition be  dismissed.  Gray v. Thompson, 58 F. 3d 59, 67 (1995).  The court  distinguished Gardner, on which the District  Court had relied, because petitioner, unlike Gardner, "was not sentenced on the basis of any secret information."  58 F. 3d, at 64.  The court thus concluded that  petitioner's notice-of-evidence claim "was not compelled by existing  precedent at the time his conviction became final," and thus could not  be considered in federal habeas proceedings under Teague.  58 F. 3d, at  64.


15
The Commonwealth scheduled petitioner's execution for December  14, 1995.  Petitioner applied for a stay of execution and petitioned for  a writ of certiorari from this Court.  We granted his stay application  on December 13, 1995.  516 U. S. ___ (1995).  On January 5, 1996, we  granted certiorari, limited  to the questions whether petitioner's  notice-of-evidence claim stated a new rule and whether the Commonwealth  violated petitioner's due process rights under Brady by withholding evidence exculpating him from responsibility for the Sorrell murders.  516 U. S. ___ (1995); see Pet. for Cert. i.

II.

16
We first address petitioner's Brady claim.  The District Court  determined that "[t]his claim was not presented to the Supreme Court of  Virginia on direct appeal nor in state habeas corpus proceedings," and  that "the factual basis of this claim was available to [petitioner] at  the time he litigated his state habeas corpus petition," and dismissed  the claim on this basis. 1 J. A. 194.  Petitioner does not contest  these determinations in this Court.


17
Petitioner's failure to raise his Brady claim in state court implicates the requirements in habeas of exhaustion and procedural default.  28 U. S. C. Section(s) 2254(b) bars the granting of habeas  corpus relief "unless it appears that the applicant has exhausted the  remedies available in the courts of  the State." Because "[t]his  requirement . . . refers only to remedies still available at the time of  the federal petition," Engle v. Isaac, 456 U. S. 107, 126, n. 28 (1982),  it is satisfied "if it is clear that [the habeas petitioner's] claims   are now procedurally barred under [state] law," Castille v. Peoples, 489  U. S. 346, 351 (1989).  However, the procedural bar which gives rise to exhaustion provides an independent and adequate statelaw ground for the  conviction and sentence, and thus prevents federal habeas corpus review  of the defaulted claim, unless the petitioner can demonstrate cause and  prejudice for the default.  Teague v. Lane, supra, at 298; Isaac, supra,  at 126, n. 28, 129; Wainright v. Sykes, 433 U. S. 72, 90-91 (1977).


18
In Virginia, "[n]o writ [of habeas corpus ad subjiciendum] shall  be granted on the basis of any allegation the facts of which petitioner  had knowledge at the time of filing any previous petition."  Va. Code  Ann. Section(s) 8.01-654(B)(2) (1992). Because petitioner knew of the  grounds of his Brady claim when he filed his first petition, Section(s)  8.01-654(B)(2) precludes review of petitioner's claim in any future  state habeas proceeding. Because petitioner makes no attempt to   demonstrate cause or prejudice for his default in state habeas  proceedings, his claim is not cognizable in a federal suit for the writ.

III.
A.

19
Petitioner makes a separate due process challenge to the manner  in which the prosecution introduced evidence about the Sorrell murders.  We perceive two separate claims in this challenge.  As we will explain  in greater detail below, petitioner raises a "notice-of-evidence" claim,  which alleges that the Commonwealth deprived petitioner of due process  by failing to give him adequate notice of the evidence the Commonwealth  would introduce in the sentencing phase of his trial.  He raises a  separate "misrepresentation" claim, which alleges that the Commonwealth  violated due process by misleading petitioner about the evidence it  intended to use at sentencing.


20
In Picard v. Connor, 404 U. S. 270 (1971), we held that, for purposes of exhausting state remedies, a claim for relief in habeas  corpus must include reference to a specific federal constitutional  guarantee, as well as a statement of the facts which entitle the  petitioner to relief. We considered whether a habeas petitioner was  entitled to relief on the basis of a claim, which was not raised in the  state courts or in his federal habeas petition, that the indictment  procedure by which  he was brought to trial violated equal protection.  Id., at 271.  In announcing that "the substance of a federal habeas  corpus claim must first be presented to the state courts," id., at 278,  we rejected the contention that the petitioner satisfied the exhaustion requirement of 28 U. S. C. Section(s) 2254(b) by presenting the state  courts only with the facts necessary to state a claim for relief.  "The   [state court] dealt with the arguments [the habeas petitioner] offered;  we cannot fault that  court for failing also to consider sua sponte  whether the indictment procedure denied [the petitioner] equal  protection of the laws."  Id., at 277.


21
We have also indicated that it is not enough to make a general  appeal to a constitutional guarantee as broad as due process to present  the "substance" of such a claim to a state court.  In Anderson v.  Harless, 459 U. S. 4 (1982), the habeas petitioner was granted relief on  the ground that it violated due process for a jury instruction to  obviate the requirement that the prosecutor prove all the elements of  the crime beyond a reasonable doubt.  Id., at 7 (citing Sandstrom v.  Montana, 442 U. S. 510 (1979)).  The only manner in which the habeas  petitioner had cited federal authority was by referring to a state-court decision in which "the defendant . . . asserted a broad federal due  process right to jury instructions that properly explain state law."  459 U. S., at 7 (internal quotation marks omitted). Our review of the  record satisfied us that the  Sandstrom claim "was never presented to, or  considered by, the [state] courts," but we found it especially  significant that the "broad federal due process right" that the habeas  petition might have been read to incorporate did not include "the more particular analysis developed in cases such as Sandstrom."  Ibid.


22
The due process challenge in petitioner's brief relies on two  "particular analys[es]" of due process.  Ibid.  Relying on cases like  Gardner v. Florida, 430 U. S. 349 (1977), and Skipper v. South Carolina,  476 U. S. 1 (1986), petitioner argues that he should have been given  "`such notice of the issues involved in the [sentencing] hearing as   [would have] reasonably enable[d] him to prepare his case,'" Brief for  Petitioner 32 (quoting Schwartz, Administrative Law 283 (2d ed. 1984)),  that he was denied "a fair opportunity to be heard on determinative sentencing issues," Brief for Petitioner 33.  This right stems from the  defendant's "legitimate interest in the character of the procedure which  leads to the imposition of sentence" of death, Gardner, supra, at 358,  which justifies giving him an "opportunity to deny" potentially  determinative sentencing information, id., at 362.


23
"Yet another way in which the state may unconstitutionally . . .  deprive [a defendant] of a meaningful opportunity to address the issues,  is simply by misinforming him."  Brief for Petitioner 34.  Petitioner  cites In re Ruffalo, 390 U. S. 544 (1968), Raley v. Ohio, 360 U. S. 423   (1959), and Mooney v. Holohan, 294 U. S. 103 (1935), for this  proposition.  Ruffalo was a disbarment proceeding in which this Court  held that the disbarred attorney had not been given notice of the  charges against him by the Ohio committee which administered bar  discipline.  390 U. S., at 550. In Raley, the chairman and members of a  state investigating commission assured witnesses that the privilege  against self-incrimination was available to them, but when the witnesses were convicted for contempt the Supreme Court of Ohio held that a state  immunity statute rendered the Fifth Amendment privilege unavailable. 360  U. S., at 430-434.  And in Mooney v. Holohan, the defendant alleged that  the prosecution knowingly used perjured testimony at his trial. 294 U.  S., at 110.


24
Gardner, Ruffalo, Raley, and Mooney arise in widely differing contexts.  Gardner forbids the use of secret testimony in the penalty  proceeding of a capital case which the defendant  has had no opportunity  to consider or rebut.  Ruffalo deals with a defendant's right to notice  of the charges against him.  Whether or not Ruffalo might have supported  petitioner's notice-of-evidence claim, see infra, at 16, it does not  support the misrepresentation claim for which petitioner cites it.  Mooney forbade the prosecution from engaging in "a deliberate deception of court and jury."  294 U. S., at 112.  Raley, though involving no  deliberate deception, held that defendants who detrimentally relied on  the assurance of a committee chairman could not be punished for having  done so.  Mooney, of course, would lend support to petitioner's claim if  it could be shown that the prosecutor deliberately misled him, not just  that he changed his mind over the course of the trial.  The two claims  are separate.

B.

25
The Commonwealth argues that the misrepresentation claim "was never argued before in any court."  Brief for Respondent 39.  If petitioner never presented this claim on direct appeal or in state habeas proceedings, federal habeas review of the claim would be barred  unless petitioner could demonstrate cause  and prejudice for his failure  to raise the claim in state proceedings.  Supra, at 8.  If the claim was  not raised or addressed in federal proceedings, below, our usual  practice would be to decline to review it.  Yee v. Escondido, 503 U. S.  519, 533 (1992).


26
There is some ambiguity as to whether the misrepresentation claim was raised or addressed in the District Court or the Court of  Appeals.  On the one hand, the District Court ordered relief primarily  on the basis of Gardner, i.e., lack of notice.  Supra, at 6-7.  On the  other hand, some of the District Court findings advert to a deliberate  decision by the prosecutor to mislead petitioner's counsel for tactical  advantage. See, e.g., App. 348, 350.  The ambiguity in the federal  record complicates the state-court procedural default issue, because  procedural default is an affirmative defense for the Commonwealth.  If  the misrepresentation claim was addressed at some stage of federal proceedings, the Commonwealth would have been obligated to raise procedural default as a defense, or lose the right to assert the defense  thereafter.  See Jenkins v. Anderson, 447 U. S. 231, 234, n. 1 (1980);  see also Schiro v. Farley, 510 U. S. 222, 227-228 (1994).


27
We remand for the Court of Appeals to determine whether petitioner in fact raised what in his briefs on the merits to this Court  he asserts has been his "fundamental complaint throughout this  litigation . . . : the Commonwealth's affirmative misrepresentation  regarding its presentation of the  Sorrell murders . . . deprived  Petitioner of a fair sentencing proceeding."  Reply Brief for Petitioner  4-5.  If the misrepresentation claim was raised, the Court of Appeals  should consider whether the Commonwealth has preserved any defenses to it and proceed to consider the claim and preserved defenses as appropriate.

C.

28
We turn to the notice-of-evidence claim, and consider whether the Court of Appeals correctly concluded that this claim sought the  retroactive application of a new rule of federal constitutional law.  We  have concluded that the writ's purpose may be fulfilled with the least  intrusion necessary on States' interest of the finality of criminal  proceedings by applying constitutional standards contemporaneous with  the habeas petitioner's conviction to review his petition.  See Teague,  489 U. S., at 309-310 (opinion of O'Connor, J.).  Thus, habeas relief is  appropriate only if "a state court considering [the petitioner's] claim  at the time his conviction became final would have felt compelled by  existing precedent to conclude that the rule [he] seeks was required by  the Constitution."  Saffle v. Parks, 494 U. S. 484, 488 (1990).


29
At the latest, petitioner knew at the start of trial that the prosecutor intended to introduce evidence tending to show that he committed the Sorrell murders.  He knew then that the Commonwealth would  call Tucker to the stand to repeat his statement that petitioner had  admitted to committing the murders.3  See App. 340; 14 Record 8-9.  He nonetheless contends that he was deprived of adequate notice of the  other witnesses,  the police officer and the medical examiner who had  investigated the Sorrell murders, whom he was advised that the  prosecutor would call only on the evening before the sentencing hearing.  App. 342; 18 Record 777.  But petitioner did not attempt to cure  this  inadequacy of notice by requesting more time to respond to  this  evidence.  He instead moved "to have excluded from evidence during this  penalty trial any evidence pertaining to any other-any felony for which the defendant has not yet been charged."4 Id., at 776.


30
On these facts, for petitioner to prevail on his notice-of-evidence claim, he must establish that due process requires  that he receive more than a day's notice of the Commonwealth's evidence.  He must also establish that due process required a continuance whether  or not he sought one, or that, if he chose not to seek a continuance,  exclusion was the only appropriate remedy for the inadequate notice.  We  conclude that only the adoption of a new constitutional rule could  establish these propositions.


31
A defendant's right to notice of the charges against which he  must defend is well established.  In re Ruffalo, 390 U. S. 544 (1968);  Cole v. Arkansas, 333 U. S. 196 (1948).  But a defendant's claim that he  has a right to notice of the evidence which the state plans to use to  prove the charges stands on quite a different footing.  We have said  that "the Due Process Clause has little to say regarding the amount of  discovery which the parties must be afforded."  Wardius v. Oregon, 412  U. S. 470, 474, (1973).  In Weatherford v. Bursey, 429 U. S. 545 (1977),  we considered the Due Process claim of a defendant who had been convicted with the aid of surprise testimony of an accomplice who was an  undercover agent.  Although the prosecutor had not intended to introduce  the agent's testimony, he changed  his mind the day of trial.  Id., at  549. To keep his cover, the  agent had told the defendant and his counsel  that he would not testify against the defendant.  Id., at 560.  We  rejected the defendant's claim, explaining that "[t]here is no general  constitutional right to discovery in a criminal case, and Brady," which addressed only exculpatory evidence, "did not create one," id., at 559.  To put it mildly, these cases do not compel a court to order the  prosecutor to disclose his evidence; their import,  in fact, is strongly  against the validity of petitioner's claim.


32
Petitioner relies principally on Gardner v. Florida, 430 U. S.  349 (1977), for the proposition that a defendant may not be sentenced to  death "on the basis of information which he had no opportunity to deny  or explain."  Id., at 362 (opinion of Stevens, J.).  In Gardner, the  trial court sentenced the defendant to death relying in part on evidence  assembled in a presentence investigation by the state parole commission;  the "investigation report contained a confidential portion which was not  disclosed to defense counsel."  Id., at 353.  Gardner literally had no  opportunity to even see the confidential information, let alone contest  it.  Petitioner in the present case, on the other hand, had the  opportunity to hear the testimony of Officer Slezak and Dr. Presswalla  in open court, and to cross-examine them.  His claim to notice is much  more akin to the one rejected in Weatherford, supra, than to the one   upheld in Gardner.


33
Even were our cases otherwise on the notice issue, we have acknowledged that exclusion of evidence is not the sole remedy for a  violation of a conceded right to notice of an alibi witness. In Taylor  v. Illinois, 484 U. S. 400 (1988), we said that in this situation "a  less drastic sanction is always available. Prejudice . . . could be  minimized by granting a continuance." Id., at 413.  Here, counsel did  not request a continuance; he argued only for exclusion.  Counsel argued  that  the evidence should be excluded not only because he was not prepared to contest the evidence, but also because it exceeded the standard in Virginia, Watkins v. Commonwealth, 229 Va. 469,  331 S. E. 2d  422 (1985), for relevance of unsolved-crime evidence to sentencing.  See  18 Record 723.  In view of petitioner's insistence on exclusion of the  evidence, the trial  court might well have felt that it would have been  interfering with a tactical decision of counsel to order a continuance  on its own motion.


34
The dissent argues that petitioner seeks the benefit of a well-established rule, that "a capital defendant must be afforded a  meaningful opportunity to explain or deny the evidence introduced  against him at sentencing."  Post, at 11.  Because we disagree with the  dissent's assertion that petitioner moved for a continuance, we disagree  with its characterization of the constitutional rule underlying his  claim for relief.  Compare supra, at 14, and n. 4, with post, 15, n. 11.  The dissent glosses over the similarities between this case and  Weatherford, which "`dictate[s],'" post, at 10, the disposition of petitioner's claim-adversely to petitioner-more clearly than any precedent cited by the dissent.  But even without Weatherford and petitioner's failure to move for a continuance, we would still think the  new-rule doctrine "would be meaningless if applied at this level of  generality." Sawyer v. Smith, 497 U. S. 227, 236 (1990).  We therefore  hold that petitioner's notice-of-evidence claim would require the  adoption of a new constitutional rule.

D.

35
Petitioner argues that relief should be granted nonetheless, because the new rule he proposes falls within one of Teague's two exceptions. "The first exception permits the retroactive application of  a new rule if the rule places a class of private conduct beyond the  power of the State to proscribe."  Parks, 494 U. S., at 494 (citing  Teague, 489 U. S., at 311).  This exception is not at issue here.  "The  second exception is for `watershed rules of criminal procedure'  implicating the fundamental fairness and accuracy of the criminal  proceeding."  Parks, supra, at 495 (citing Teague, supra, at 311; Butler  v. McKellar, 494 U. S. 407, 416 (1990)).  Petitioner argues that his  notice-of-evidence new rule is "mandated by long-recognized principles  of fundamental fairness critical to accuracy in capital sentencing determinations." Brief for Petitioner 47.


36
We observed in Saffle v. Parks that the paradigmatic example of  a watershed rule of criminal procedure is the requirement that counsel  be provided in all criminal trials for serious offenses. 494 U. S., at  495 (citing Gideon v. Wainwright, 372 U. S. 335 (1963)).  "Whatever one  may think of the importance of [petitioner's] proposed rule, it has none  of the primacy and centrality of the rule adopted in Gideon or other  rules which may be thought to be within the exception."  Parks, supra,  at 495. The rule in Teague therefore applies, and petitioner may not obtain habeas relief on his notice-of-evidence claim.

IV.

37
We hold that petitioner's Brady claim is procedurally defaulted  and that his notice-of-evidence claim seeks retroactive application of a  new rule.  Neither claim states a ground upon which relief may be  granted in federal habeas corpus proceedings. However, we vacate the  judgment of the Court of Appeals, and remand the case for consideration  of petitioner's misrepresentation claim in proceedings consistent with  this opinion.


38

It is so ordered.



39
Justice Stevens, dissenting.


40
Justice Ginsburg has cogently explained why well-settled law requires the reversal of the judgment of the Court of Appeals.  I join  her opinion with this additional observation.  The evidence tending to  support the proposition that petitioner committed the Sorrell murders  was not even sufficient to support the filing of charges against him.  Whatever limits due process places upon the introduction of evidence of  unadjudicated conduct in capital cases, they surely were exceeded here.  Given the "vital importance" that "any decision to impose the death  sentence be, and appear to be, based on reason rather than caprice or emotion", the sentencing proceeding would have been fundamentally unfair  even if the prosecutors had given defense counsel fair notice of their  intent to offer this evidence.  See Gardner v. Florida, 430 U. S. 349,  357-358 (1977) (Opinion of Stevens, J.).


41
Justice Ginsburg, with whom Justice Stevens, Justice Souter, and  Justice Breyer join, dissenting.


42
Basic to due process in criminal proceedings is the right to a  full, fair, potentially effective opportunity to defend against the  State's charges.  Petitioner Gray was not accorded that fundamental  right at the penalty phase of his trial for capital murder.  I therefore  conclude that no "new rule" is implicated in his petition for habeas  corpus, and dissent from the Court's decision, which denies Gray the  resentencing proceeding he seeks.

I.

43
Petitioner Coleman Gray's murder trial began on Monday, December  2, 1985, in the city of Suffolk, Virginia.  He was charged with killing  Richard McClelland during the commission of a robbery, a capital  offense.  Va. Code Ann. Section(s) 18.2-31(4) (Supp. 1995).  Under  Virginia law, the trial would proceed in two stages: during the guilt  phase, the jury would determine  whether Gray was guilty of capital  murder; and during the penalty phase, the jury would decide whether Gray  should be sentenced to death or life imprisonment.  See Va. Code Ann. Section(s) 19.2-264.4(A) (1995).


44
At an in-chambers conference before the guilt phase began, Gray's lawyers requested a court order directing the prosecutor to disclose the evidence he would introduce during the penalty phase if  Gray were convicted.5  Defense counsel wanted to know, in particular,  whether the prosecutor planned to introduce evidence relating to the  murders of Lisa Sorrell and her 3-year-old daughter, Shanta.  Defense  counsel informed the trial court  of the basis for the request:


45
". . . Your Honor, this is my concern.  We will probably at the  very best stop in the middle of the day or late in the afternoon and  start the penalty trial the next day. . . . [W]e have good reason to  believe that [the prosecutor] is going to call people to introduce a  statement that our client supposedly made to another inmate that he  murdered [the Sorrells] which were very violent and well-known crimes  throughout this entire area.


46
"If that comes in we are going to want to know it in advance so  we can be prepared on our argument. . . . It's absolute dynamite."  3  Joint Appendix in No. 94-4009 (CA4), pp. 1328-1329 (hereinafter J. A.).


47
The Sorrell murders "were one of the most highly publicized crimes in the history of the Tidewater, Virginia area."  App. 341. In  December 1984, five days after they were reported missing, Lisa and  Shanta Sorrell were found dead in a partially  burned car in Chesapeake,  Virginia, a city that shares borders with Suffolk.  Lisa's body was  slumped in the front passenger seat of the car; she had been shot in the  head six times.  Shanta had been removed from her car seat and locked in  the trunk, where she died after inhaling smoke produced by the fire in  the car's passenger compartment.  Neither Gray nor anyone else has ever been charged with commission of the Sorrell murders.6


48
In response to defense counsel's disclosure request, the prosecutor told Gray's lawyers and the court that he would introduce  "statements" Gray had made to other inmates in which Gray allegedly  admitted killing the Sorrells.  The following exchange then took place  between defense counsel Moore and prosecutor Ferguson:


49
"MR. MOORE: Is it going to be evidence or just his statement?


50
"MR. FERGUSON: Statements that your client made.


51
"MR. MOORE: Nothing other than statements?


52
"MR. FERGUSON: To other people, that's correct.  Statements made  by your client that he did these things."  3 J. A. 1331 (emphasis  added).


53
After the in-chambers conference ended, the guilt phase of the  trial began.  Three days later, at 4 o'clock on Thursday afternoon,  December 5, the jury returned a verdict finding Gray guilty of the  capital murder of McClelland.  Proceedings were adjourned for the day,  with the penalty phase to begin at 9:30 the next morning.


54
That evening, the prosecutor informed defense counsel that, in  addition to Gray's statements, he planned to introduce further evidence  relating to the Sorrell murders.  That further  evidence included: (1)  the testimony of Detective Slezak, the police officer who investigated  the Sorrell murders, regarding his observations at the crime scene  shortly after the bodies of  Lisa and Shanta were discovered; (2) graphic  photographs of the  crime scene, depicting the interior of the partially  burned car, Lisa's body in the front seat, and Shanta's body in the  trunk; (3) the testimony of Doctor Presswalla, the state medical  examiner who conducted the autopsies of the victims, regarding the  causes of their deaths; (4) graphic photographs of the victims at the  time of the autopsies, including a photograph depicting the back of Lisa's head, shaved to reveal six gunshot  wounds; and (5) Doctor Presswalla's autopsy reports.  See App. 29-37, 40-47.


55
This additional evidence, advanced by the prosecutor on the eve  of the penalty phase, suggested that the Sorrell murders were carried  out in a manner "strikingly similar" to the murder of McClelland.  Gray  v. Commonwealth, 233 Va. 313, 347, 356 S. E. 2d 157, 176 (1987).  Like  Lisa Sorrell, McClelland had been shot six times in the head; his car,  too, had been partially burned.  As defense counsel later explained,  "the similarities between the McClelland murder and the Sorrell murder  would be obvious to anyone sitting in a jury box."  App. 141.


56
On Friday morning, December 6, before trial proceedings resumed,  defense counsel informed the court of Thursday evening's developments.  Gray's lawyers told the court they had learned for the first time the  previous evening that the prosecutor planned to introduce evidence  relating to the Sorrell murders other than Gray's alleged statements.  Counsel stated that while they were prepared to rebut the statements,  they were "not prepared to rebut [the additional evidence] . . . because  of the shortness of notice."  4 J. A. 2065.  "We are not prepared to try  the Sorrell murder today," counsel told the court.  "We have not been  given sufficient notice."  Ibid.


57
Gray's lawyers argued that the case relied on by the prosecutor,  Watkins v. Commonwealth, 229 Va. 469, 331 S. E. 2d 422 (1985), was  distinguishable.  There, counsel explained, separate murder charges were  outstanding against the defendant, and "[t]he lawyers who were  representing [Watkins] in the first murder trial were already  representing him with respect to the second murders.  They were aware of  all the charges, were aware of the evidence that was available to the  Commonwealth in the second murder charge and were in a position to  confront the evidence . . . that would come in [during] the penalty  trial." 4 J. A. 2065-2066.  In contrast to the situation in Watkins, counsel pointed out, "[w]e are not prepared for any of this, other than   [Gray] may have made some incriminating statements."  4 J. A. 2067.  The  trial court nonetheless ruled that the Sorrell murders evidence was  "admissible at this stage of the trial." Id., at 2068.


58
The penalty phase of the trial then commenced.  The prosecutor,  in keeping with his representations before the guilt phase began, called  Melvin Tucker to the stand.  Tucker was Gray's accomplice in the  McClelland murder; he, along with Gray, had initially been charged with  capital murder.  After plea negotiations, however, the prosecutor agreed  to reduce the charge against Tucker to first-degree murder, a noncapital  offense, in exchange for Tucker's testimony against Gray.  App. 339, and  n. 3.  Tucker testified during the guilt phase that Gray had been the "triggerman" in McClelland's murder.


59
Tucker testified at the penalty phase that, shortly after the  McClelland robbery, he and Gray "were searching through the newspaper  for some information" on the crime.  Id., at 22. According to Tucker,  Gray stated that he had "knocked off" Lisa Sorrell, and pointed to a  picture of Lisa Sorrell in the newspaper.  Id., at 22-23.7  Gray's  lawyers declined to cross-examine Tucker after his penalty phase  testimony; in their view, Tucker's motive to lie had already been  adequately exposed during the guilt phase.  See id., at 157 (testimony  of defense counsel Moore) ("Melvin Tucker had been . . . extensively  . . . cross-examined during the guilt phase . . . . The same jurors who were sitting there during the guilt trial were there during the penalty  phase and they had been told and drawn a pretty accurate picture as to  why Melvin Tucker would strike a deal and tell anybody anything they  wanted to hear.  To save his life.  That didn't need to be brought up  again.").


60
The prosecutor then called Detective Slezak.  Defense counsel renewed their objection, outside the presence of the jury, to admission  of any evidence relating to the Sorrell murders other than Gray's  statements. Counsel reiterated that they had "had no notice of this,"  and had been "taken by surprise."  Id., at 25. What the prosecutor "is  going to do today," they emphasized, "is not what he said he was going  to do at the beginning of trial." Id., at 27.  The court adhered to its  earlier ruling that the evidence was admissible.


61
With nothing more than Tucker's testimony linking Gray to the Sorrell murders, the trial court then allowed the prosecutor to introduce the testimony of Detective Slezak and Doctor Presswalla, as  well as crime scene and autopsy photographs and the victims' autopsy  reports.  See supra, at 4.  During the defense case, Gray took the  stand, admitted complicity in the McClelland murder but denied being the  "triggerman," and denied  any involvement in the Sorrell murders.  App.  346-347.  After closing arguments, in which the prosecutor highlighted  the similarities between the Sorrell and McClelland murders, and urged  that Gray's commission of the Sorrell murders demonstrated his "future  dangerous[ness]," see id., at 51-53, the jury fixed  Gray's punishment at  death.


62
Gray unsuccessfully argued on direct appeal to the Virginia Supreme Court and in state habeas proceedings that admission of the  additional Sorrell murders evidence violated his right to a fair trial  under the Fourteenth Amendment.  Gray then filed a federal habeas  petition in the United States District Court for the Eastern District of  Virginia.  Gray argued, among other things, that admission of the  Sorrell murders evidence violated his Fourteenth Amendment rights.  1 J.  A. 35. Specifically, he asserted:


63
"The Commonwealth did not disclose its intentions to use the Sorrell murders as evidence against Gray until such a late date that it  was impossible for Gray's defense counsel reasonably to prepare or  defend against such evidence at trial.  Because of the late notice,  . . . Gray could not adequately prepare to defend his innocence  regarding the Sorrell murders."  Id., at 33.


64
The District Court concluded that other claims pressed by Gray  in his federal habeas petition were either procedurally barred or  meritless. The court found, however, that the Sorrell evidence claim  "was consistently raised in the State courts and is not procedurally  defaulted." Id., at 253.


65
After conducting an evidentiary hearing, the District Court granted Gray a writ of habeas corpus.  Relying primarily on Gardner v.  Florida, 430 U. S. 349 (1977), the court held that Gray's due process  rights were violated "because the Commonwealth failed to provide fair  notice that evidence concerning the Sorrell murders would be introduced  at his penalty phase," App. 348; consequently, Gray became vulnerable to  a death sentence on the basis of information he had scant opportunity to  deny or explain, see id., at 349-351.  Recalling  the prosecutor's Monday morning affirmations that he would introduce only Gray's "statements,"  the District Court noted that Gray's lawyers were "clearly and  justifiably . . . shocked" when the prosecutor reported, Thursday  evening, his intention to introduce, the next day, further evidence on  the Sorrell murders.  Id., at 350.  "The only Sorrell murder evidence  which  [Gray's lawyers] were prepared to challenge," the District Court  recounted, "was the evidence [the prosecutor] indicated he would  introduce at the outset of the trial: Melvin Tucker's statement that  Gray allegedly had confessed to the murders."  Id., at 346.  The prosecutor's surprise move had disarmed Gray's counsel, the District  Court recognized, leaving them without capacity to cross-examine  Detective Slezak and Doctor Presswalla effectively, with the result that  the Sorrell murders evidence "carrie[d] no assurance of reliability."  Id., at 351.


66
"The consequences of this surprise," the District Court found,  "could not have been more devastating."  Id., at 350. Most critically,  the prosecutor's "statements only" assurance led defense counsel to  forgo investigation of the details of the Sorrell murders, including a  review of the evidence collected by the Chesapeake police department  during its investigation of the crimes.  See ibid.  Had Gray's lawyers  conducted such a review, they could have shown that none of the forensic  evidence collected by the Chesapeake police directly linked Gray to the Sorrell murders.8  Moreover, the evidence the Chesapeake police did  obtain "strongly suggested that Timothy Sorrell"-Lisa's husband and  Shanta's father-"actually committed the notorious murders."  Id., at  350-351.


67
Indeed, for a substantial period of time following the Sorrell  murders, Timothy Sorrell was the prime suspect in the case.9  Police  suspicion focused on Mr. Sorrell the night Lisa and Shanta were found  dead.  When Detective Slezak and another officer informed Mr. Sorrell of  the grim discovery, his statements and demeanor made the officers  "highly suspicious." Id., at 186.10


68
Police subsequently learned that Timothy Sorrell had an apparent  motive for the murders.  Two weeks before Lisa and Shanta were killed,  the Sorrells obtained a life insurance policy, which designated Timothy  and Shanta as beneficiaries in the event of Lisa's death.  Id., at  344.11  Lisa's parents later filed a lawsuit to stop Mr. Sorrell from  obtaining the proceeds of the insurance policy, alleging that he was  responsible for Lisa's death.  Ibid.  In addition, police uncovered  evidence suggesting that Mr. Sorrell was involved in a stolen  merchandise ring at his place of employment, the Naval Supply Center,  and that Lisa "was very angry and unhappy about her husband's apparent criminal activities."  Id., at 345.12  Based on this information, Detective Slezak asked the local Commonwealth's Attorney "to determine  whether it was appropriate to prosecute Timothy Sorrell."  Ibid.13


69
Assessing the prejudicial potency of the Sorrell murders evidence admitted at the penalty phase of Gray's trial, the District  Court concluded that the due process violation was not harmless.  Id.,  at 353. The District Court therefore vacated Gray's death sentence, and  remanded the case to the state trial court for resentencing.


70
The Court of Appeals for the Fourth Circuit reversed.  Gray v.  Thompson, 58 F. 3d 59 (1995).  It held that federal habeas relief was  barred because Gray's due process claim depended on a "new rule" of  constitutional law which, under Teague v. Lane, 489 U. S. 288 (1989),  could not be applied on collateral review.  The Court of Appeals  accordingly remanded the case, directing the District Court to dismiss  Gray's habeas petition.

II.

71
A case announces a "new rule" under Teague "if the result was not dictated by precedent existing at the time the defendant's conviction became final."  Id., at 301 (plurality opinion). Gray's  conviction became final in 1987, when we denied certiorari to review the  Virginia Supreme Court's decision on direct appeal. See Gray v.  Virginia, 484 U. S. 873  (1987).  As explained below, precedent decided  well before 1987  "dictates" the conclusion that Gray was not accorded  due process at the penalty phase of his trial.


72
Gray's claim is encompassing, but it is fundamental.  Under the  Due Process Clause, he contends, a capital defendant must be afforded a  meaningful opportunity to explain or deny the evidence introduced  against him at sentencing.  See Brief for Petitioner 45; Reply Brief for  Petitioner 5.  The District Court concluded that Gray was stripped of  any meaningful opportunity to explain or deny the Sorrell murders  evidence, for his lawyers were unfairly "ambushed"-clearly surprised and  devastatingly disarmed by the prosecutor's decision, announced on the  eve of the penalty trial, to introduce extensive evidence other than  Gray's statements.  App. 349-351.  Gray's counsel reasonably relied on the prosecutor's unequivocal "statements only" pledge, see id., at 342,  made at the outset of trial; based on the prosecutor's assurances,  defense counsel spent no resources tracking down information in police  records on the Sorrell murders.  The prosecutor's switch, altogether  unanticipated by defense counsel, left them with no chance to uncover,  through their own investigation, information that could have defused the prosecutor's case, in short, without time to prepare an effective defense.  Id., at 351.


73
The Fourth Circuit recast Gray's claim, transforming it into an  assertion of a broad constitutional right to discovery in capital cases.  See 58 F. 3d, at 64-65.  This Court also restates and reshapes Gray's  claim.  The Court first slices Gray's whole claim into pieces; it then  deals discretely with each segment it "perceive[s]," ante, at 9: a  "misrepresentation" claim, ante, at 12-13; and a supposed  "notice-of-evidence" claim, ante, at 13-17. Gray, himself, however, has  "never claimed a constitutional right to advance discovery of the  Commonwealth's evidence."  Brief for Petitioner 46, n. 37, and  accompanying text.  His own  claim is more basic and should not succumb  to artificial endeavors to divide and conquer it.


74
There is nothing "new" in a rule that capital defendants must be  afforded a meaningful opportunity to defend against the State's penalty  phase evidence.  As this Court affirmed more than a century ago: "Common  justice requires that no man shall be condemned in his person or  property without . . . an opportunity to make his defence."  Baldwin v.  Hale, 1 Wall. 223, 233 (1864). See also Windsor v. McVeigh, 93 U. S.  274, 277 (1876).  A pro forma opportunity will not do.14  Due process  demands an opportunity to be heard "at a meaningful time and in a  meaningful manner."  Armstrong v. Manzo, 380 U. S. 545, 552 (1965); see  In re Oliver, 333 U. S. 257, 275 (1948) (defendant must be afforded "a  reasonable opportunity to meet [the charges  against him] by way of  defense or explanation"); Morgan v. United States, 304 U. S. 1, 18   (1938) ("The right to a hearing  embraces not only the right to present  evidence but also a reasonable opportunity to know the claims of the  opposing party  and to meet them."). Absent a full, fair, potentially  effective opportunity to defend against the State's charges, the right  to  a hearing would be "but a barren one."  Ibid.; see Mullane v. Central  Hanover Bank & Trust Co., 339 U. S. 306, 315 (1950) ("process which is a  mere gesture is not due process").


75
In Gardner v. Florida, 430 U. S. 349 (1977), the principal decision relied on by the District Court, we confirmed that the sentencing phase of a capital trial "must satisfy the requirements of  the Due Process Clause."  Id., at 358 (plurality opinion). Gardner  presented the question whether a defendant was denied due process when  the trial judge sentenced him to death relying in part on a presentence  report, including a confidential portion not disclosed to defense  counsel. Counsel's deprivation of an "opportunity . . . to challenge the  accuracy or materiality" of the undisclosed information, id., at 356,  the Gardner plurality reasoned, left a manifest risk that "some of the  information accepted in confidence may [have been] erroneous, or . . . misinterpreted," id., at 359.  As a basis for a death sentence, Gardner  teaches, information unexposed to  adversary testing does not qualify as  reliable. See ibid.  The Gardner Court vacated the defendant's sentence,  concluding that  he "was denied due process of law when the death   [penalty] was  imposed, at least in part, on the basis of information  which he  had no opportunity to deny or explain."  Id., at 362.


76
Urging that Gardner fails to "dictate" a decision for Gray here,  the Commonwealth relies on the Fourth Circuit's reasoning to this  effect: Gardner was a case about "secrecy"; Gray's case is about  "surprise." See 58 F. 3d, at 65.  Therefore, Gray seeks an extension,  not an application, of Gardner, see Brief for Respondent 30, in Teague  parlance, a "new rule," Brief for Respondent 31.  It would be an  impermissible "leap," the Fourth Circuit maintained, to equate to a  failure to disclose, a disclosure in fact made, "but allegedly so late  as to be unfair." 58 F. 3d, at 65.


77
Teague is not the straightjacket the Commonwealth misunderstands  it to be.  Teague requires federal courts to decide a habeas  petitioner's constitutional claims according to the "law prevailing at  the time [his] conviction became final." Teague, 489 U. S., at 306   (plurality opinion) (internal quotation marks omitted).  But Teague does  not bar federal habeas courts from applying, in "a myriad of factual  contexts,"  law that is settled-here, the right to a meaningful chance to  defend against or explain charges pressed by the State.  See Wright v. West, 505 U. S. 277, 309 (1992) (Kennedy, J., concurring in judgment)  ("Where the beginning point is a rule of this general application, a  rule designed for the specific purpose of evaluating a myriad of factual  contexts, it will be the infrequent case that yields a result so novel  that it forges a new rule, one not dictated by precedent.").


78
The District Court did not "forg[e] a new rule," ibid., by holding, on the facts of this case, that Gray was denied a meaningful  opportunity to challenge the Sorrell murders evidence. Ordinarily, it  is incumbent upon defense counsel, after receiving adequate notice of  the triable issues, to pursue whatever investigation is needed to rebut  relevant evidence the  State may introduce.  Here, however, in keeping  with the practice approved by Virginia's highest court, see supra, at  1-2, and n. 1, the prosecutor expressly delineated the scope and  character of the evidence he would introduce with respect to the  Sorrell  murders: nothing other than statements Gray himself allegedly made, see supra, at 3. Gray's lawyers reasonably relied on the prosecutor's "statements only" assurance by forgoing inquiry into the details of the  Sorrell crimes. Resource-consuming investigation, they responsibly  determined, was unnecessary to cast doubt on the veracity of inmate  "snitch" testimony, the only evidence the prosecutor initially said he  would offer.


79
Gray's lawyers were undeniably caught short by the prosecutor's  startling announcement, the night before the penalty phase was to begin,  that he would in effect put on a "mini-trial" of the Sorrell murders. At  that point, Gray's lawyers could not possibly conduct the investigation  and preparation necessary to counter the prosecutor's newly announced  evidence.  Thus, at the penalty trial, defense counsel were reduced  nearly to the role of spectators.  Lacking proof, later  uncovered, that  "strongly suggested" Timothy Sorrell, not Gray, was the actual killer,  App. 350-351, Gray's lawyers could mount  only a feeble cross-examination  of Detective Slezak; counsel simply inquired of the detective whether  highly-publicized crimes could prompt "copycat" crimes, see id., at  37-40.  Gray's lawyers had no questions at all for Doctor Presswalla,  the medical examiner who testified about the Sorrell autopsies.  Id., at  47.15


80
In sum, the record shows, beyond genuine debate, that Gray was  not afforded a "meaningful" opportunity to defend against the additional  Sorrell murders evidence.  The fatal infection present in Gardner  infects this case as well: defense counsel were effectively deprived of  an opportunity to challenge the "accuracy or materiality" of information  relied on in imposing the death sentence.  Gardner, 430 U. S., at 356.  Unexposed to adversary testing, the Sorrell murders evidence "carrie[d]  no assurance of reliability."  App. 351.  The "debate between  adversaries," valued in our system of justice for its contribution "to  the truth-seeking function of trials," Gardner, 430 U. S., at 360, was precluded here by the prosecutor's eve-of-sentencing shift, and the  trial court's tolerance of it.  To  hold otherwise "would simply be to  ignore actualities."  Powell  v. Alabama, 287 U. S. 45, 58 (1932).16


81
For the reasons stated, I conclude that the District Court's decision vacating Gray's death sentence did not rest on a "new rule" of  constitutional law.  I would therefore reverse the judgment of the Court  of Appeals, and respectfully dissent from this Court's decision.



1
 The prosecutor introduced this testimony as evidence of petitioner's future dangerousness.  The prosecutor also introduced into  evidence petitioner's criminal record, which included 13 felony  convictions, at least 9 of which were for crimes of violence, including  armed robbery and malicious wounding. Petitioner's record revealed that  he had locked a restaurant's employees in a food freezer while robbing  the restaurant, and threatened the lives of two persons other than  McClelland.  Gray v. Commonwealth, 233 Va. 313, 353, 356 S. E. 2d 157,  179, cert. denied, 484 U. S. 873 (1987).
The other five subclaims are not relevant to our review.


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


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


5
 This request was made pursuant to Peterson v. Commonwealth,  225 Va. 289, 302 S. E. 2d 520 (1983), which instructed that, under Virginia law, the "preferred practice" in capital trials "is to make  known to [the defendant] before trial the evidence that is to be adduced  at the penalty stage if he is found guilty."  Id., at 298, 302 S. E. 2d,  at 526.


6
 That Gray had not been convicted of killing the Sorrells  would not, under Virginia law, bar admission of evidence relating to those crimes during the penalty phase of his trial.  One of Virginia's  two aggravating circumstances requires the jury to determine whether  "there is a probability that the defendant would commit criminal acts of  violence that would constitute a continuing serious threat to society."  Va. Code Ann. Section(s) 19.2-264.2 (1995).  The Virginia Supreme Court  has held that "evidence of prior unadjudicated criminal conduct . . .  may be used in the penalty phase to prove the defendant's propensity to commit criminal acts of violence in the future."  Watkins v. Commonwealth, 229 Va. 469, 488, 331 S. E. 2d 422, 436 (1985).


7
 As the District Court suggested, in one respect this  version of events is implausible.  The McClelland murder occurred in May 1985, some six months after the Sorrells had been killed.  No newspaper  from May 1985 containing a photograph of Lisa Sorrell was ever  introduced into evidence.  See App. 343.


8
 The District Court noted, in this regard, that an  investigator engaged by Gray's federal habeas counsel had run a driving  test indicating that "Coleman Gray could not have performed the Sorrell murders on his wife's dinner hour, as the prosecutor speculated." Id.,  at 345, n. 5.


9
 Police designated Mr. Sorrell as the sole suspect on  evidence they sent to crime labs for analysis.  Id., at 344.


10
 Asked to describe what about Mr. Sorrell's demeanor made  him suspicious, Slezak testified: "I don't know how to describe it other  than to say that it was not what you would expect to find in a situation  like that.  He just seemed defensive."  Id., at 186.


11
 By contrast, police never established Gray's supposed  motive for killing the Sorrells.  Lisa was found with her jewelry (a necklace and gold earrings) undisturbed, as well as cash and a postal  money order for $280.00, id., at 316, suggesting that robbery was not  the perpetrator's motive, id., at 317.


12
 Despite defense counsel's pretrial request for all  exculpatory evidence pursuant to Brady v. Maryland, 373 U. S. 83 (1963),  the prosecutor never disclosed the evidence incriminating Timothy Sorrell. Gray presented a Brady claim in his federal habeas petition,  but the District Court noted that the claim had not been raised in state  court, and therefore held it procedurally barred.  1 J. A. 194.


13
 After Gray's trial, the local prosecutor reportedly stated  in an affidavit that Mr. Sorrell was no longer a suspect.  See 2 id., at  927 (news report in The Virginian-Pilot, Jan. 7, 1986, p. D1).


14
 Cf. In re Gault, 387 U. S. 1, 33 (1967) (notice to parents  the night before a juvenile delinquency hearing was constitutionally inadequate; due process requires that notice "be given sufficiently in  advance of scheduled court proceedings so that reasonable opportunity to  prepare will be afforded"); Powell v. Alabama, 287 U. S. 45, 58 (1932)  (defense counsel appointed the morning of trial could not satisfy the  constitutional requirement because counsel lacked opportunity to  investigate the case; Court observed that "[t]o decide otherwise, would  simply be to ignore actualities").


15
 The Court attaches weight to the failure of Gray's lawyers  to ask explicitly for deferral of the penalty phase.  See ante, at 14,  16.  It is uncontested that defense counsel made no formal motion for a  continuance.  But as the District Court described the morning-of-trial  episode, counsel "plea[ded] for additional time to prepare."  App. 343.  And as earlier noted, see supra, at 4-5, counsel was explicit about the  dilemma confronting the defense: "We are not prepared to try the Sorrell  murder today." 4 J. A. 2065.  The Court's suggestion that "this plea   [was] insufficient to have legal effect in court," ante, at 14, n. 4, is puzzling.  Neither the Court, the Fourth Circuit, nor the Commonwealth  has cited any Virginia authority for this proposition.  Cf. Smith v.  Estelle, 602 F. 2d 694, 701, n. 8 (CA5 1979) ("the state points us to no  rule of Texas law saying that moving for a continuance is the only way  to object to surprise"), aff'd on other grounds, 451 U. S. 454 (1981).  Given the potency of the evidence in question, it is difficult to  comprehend the Court's speculation that defense counsel, for "tactical"  reasons, may have wanted only exclusion and not more time.  Compare  ante, at 16, with Tr. of Oral Arg. 11 (Counsel for Petitioner urged that if a trial judge is asked, "please stop this from happening . . ., it  violates my [client's] right to a fair trial," the existence of that  right should not turn on whether counsel next says, "please exclude this  evidence, as opposed to please give me more time").


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


