gray netherland warden argued april decided june start petitioner virginia trial capital murder richard mcclelland prosecution acknowledged trial reach penalty phase introduce petitioner admissions inmates previously murdered lisa sorrell daughter day petitioner convicted mcclelland murder prosecution disclosed introduce additional evidence sentencing linking petitioner sorrell murders including crime scene photographs testimony sorrell investigating detective medical examiner counsel moved exclude evidence pertaining felony petitioner charged although counsel also complained prepared additional evidence defense taken surprise request continuance denied motions exclude hearing petitioner sentenced death exhausting state remedies sought federal habeas relief claiming relevant inadequate notice prevented defending evidence introduced penalty phase commonwealth failed disclose exculpatory evidence regarding sorrell murders district initially denied relief finding petitioner constitutional right notice individual testimony commonwealth planned introduce sentencing claim made brady maryland procedurally barred virginia law however later amended judgment concluding petitioner denied due process commonwealth failed provide fair notice sorrell murder evidence introduced reversing fourth circuit found granting habeas relief give petitioner benefit new rule federal constitutional law violation teague lane grant certiorari limited petitioner brady claims held petitioner brady claim procedurally defaulted never raised claim state knew grounds filed first state petition virginia law precludes review defaulted claim future state habeas proceeding provides independent adequate ground conviction sentence thus prevents federal habeas review defaulted claim unless petitioner demonstrate cause prejudice default teague lane supra made demonstration claim cognizable federal suit writ pp misrepresentation claim raised petitioner brief remanded appeals determine whether fact raised issue pp brief petitioner relies two separate due process challenges manner prosecution introduced evidence sorrell murders claim alleging commonwealth failed give adequate notice evidence use misrepresentation claim alleging commonwealth mislead evidence intended present purposes exhausting state remedies habeas claim must include reference specific federal constitutional guarantee well statement facts entitling petitioner relief picard connor petitioner satisfy exhaustion requirement presenting state courts facts necessary state claim relief enough make general appeal constitutional guarantee broad due process present substance claim state anderson harless gardner florida petitioner relies ruffalo raley ohio mooney holohan relies misrepresentation widely differing contexts two claims separate pp petitioner never raised misrepresentation issue state proceedings federal habeas review barred unless demonstrate cause prejudice failure raise claim state proceedings however addressed federal proceedings commonwealth obligated raise procedural default defense lose right assert defense thereafter appeals determines issue raised consider whether commonwealth preserved defenses proceed consider claim preserved defenses appropriate pp petitioner claim require adoption new constitutional rule pp petitioner contends deprived adequate notice received one day notice additional evidence rather seeking continuance sought evidence excluded prevail must establish due process requires receive day notice commonwealth evidence must also show due process required continuance whether sought one chose seek continuance exclusion appropriate remedy adoption new constitutional rule establish propositions defendant right notice charges must defend ruffalo supra however constitutional right notice evidence state plans use prove charges brady addressed exculpatory evidence create one weatherford bursey gardner florida supra distinguished even notice required exclusion evidence sole remedy violation right since continuance minimize prejudice taylor illinois petitioner made request view insistence exclusion trial might well felt interfering counsel tactical decision order continuance motion pp new rule petitioner proposes fall within teague second exception watershed rules criminal procedure implicating criminal proceeding fundamental fairness accuracy whatever one may think importance petitioner proposed rule none primacy centrality rule adopted gideon wainwright rules may thought within exception saffle parks vacated remanded rehnquist delivered opinion scalia kennedy thomas joined stevens filed dissenting opinion ginsburg filed dissenting opinion stevens souter breyer joined notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press end syllabus coleman wayne gray petitioner netherland warden petitioner drove car back murphy mart forced mcclelland gunpoint reopen store filled three gym bags money totaling petitioner drove mcclelland tucker service station bought gasoline car gas car trunk proceeded remote side road took mcclelland feet behind car ordered lie mcclelland begged petitioner hurt shoot petitioner assured harmed thus assured mcclelland petitioner fired pistol shots back head rapid succession leaving mcclelland dead body side road petitioner tucker returned intersection seized petitioner telling tucker wanted destroy mcclelland car evidence doused interior gasoline lit match petitioner tucker later arrested indicted circuit city suffolk several counts including capital murder evidence petitioner announced killing going get mcclelland fired wife job saleswoman murphy mart petitioner told witnesses killing performed prosecutor entered plea bargain tucker return tried murder instead capital murder tucker testify petitioner trial events leading killing identify petitioner actual trigger man thursday december jury convicted petitioner counts evening prosecution informed petitioner counsel commonwealth introduce evidence beyond petitioner admissions linking petitioner sorrell murders additional evidence included photographs crime scene testimony police detective investigated murders state medical examiner performed autopsies sorrells bodies testimony meant show manner lisa shanta sorrell killed resembled manner mcclelland killed next morning petitioner counsel made two motions excluded evidence penalty trial evidence pertaining felony defendant yet charged counsel argued additional evidence exceeded scope evidence admissible sentencing virginia law essence prosecutor trying sorrell case minds jurors citing watkins commonwealth cert denied although counsel also complained prepared additional evidence petitioner may made incriminating statements record efense taken surprise never requested continuance trial denied motions exclude sentencing phase tucker testified shortly mcclelland murder gray pointed picture lisa sorrell newspaper told tucker knocked sorrell petitioner counsel tucker officer michael slezak investigated sorrell murders testified found lisa body front seat partially burned automobile shanta body trunk faruk presswalla medical examiner performed autopsies bodies testified lisa killed six bullets head shot gun gray supra petitioner counsel presswalla officer slezak suggest mcclelland murder may copycat murder committed different perpetrator record jury fixed petitioner sentence mcclelland murder death trial entered judgment verdicts charges petitioner sentenced death virginia affirmed denied certiorari gray virginia suffolk circuit dismissed petitioner state petition writ habeas corpus virginia affirmed dismissal denied certiorari gray thompson commonwealth moved dismiss petition clarify arguments petitioner sorrell murder claim characterized petitioner allegations seven separate subclaims first subclaim asserted petitioner given inadequate notice evidence commonwealth intended introduce permit defend third relying brady maryland asserted commonwealth failed disclose evidence tending prove someone else committed sorrell murders respondent brief support motion dismiss ed according state subclaim meritless basis relief federal habeas corpus proceedings sought retroactive application new rule constitutional law commonwealth alleged brady subclaim presented state courts direct appeal state habeas corpus proceedings thus procedurally barred virginia code section respondent brief support motion dismiss supra initially district dismissed habeas petition adopted commonwealth characterization petitioner sorrell claim see held petitioner entitled relief subclaim constitutional right notice individual items testimony commonwealth intends introduce penalty phase declined review brady subclaim procedurally barred later petitioner motion district amended judgment find within petitioner sorrell claim specific due process claim admissibility sorrell murder evidence amending judgment announced remained unchanged remaining claims dismissed holding evidentiary hearing sorrell claim district ordered petitioner granted writ habeas corpus characterized claim allegation petitioner denied due process law fourteenth amendment constitution commonwealth failed provide fair notice evidence concerning sorrell murders introduced penalty phase app citing gardner florida determined constitutional defect petitioner penalty phase hearing petitioner confronted surprised testimony officer slezak dr presswalla app defect violated petitioner right fair notice rendered hearing clearly unreliable petitioner attorneys less one day notice additional evidence used client commonwealth appealed arguing fourth circuit grant petitioner habeas relief give benefit new rule federal constitutional law violation teague lane fourth circuit reversed judgment granting writ rejected petitioner dismissal several claims remanded directions habeas corpus petition dismissed gray thompson distinguished gardner district relied petitioner unlike gardner sentenced basis secret information thus concluded petitioner claim compelled existing precedent time conviction became final thus considered federal habeas proceedings teague commonwealth scheduled petitioner execution december petitioner applied stay execution petitioned writ certiorari granted stay application december january granted certiorari limited questions whether petitioner claim stated new rule whether commonwealth violated petitioner due process rights brady withholding evidence exculpating responsibility sorrell murders see pet cert ii petitioner failure raise brady claim state implicates requirements habeas exhaustion procedural default section bars granting habeas corpus relief unless appears applicant exhausted remedies available courts state requirement refers remedies still available time federal petition engle isaac satisfied clear habeas petitioner claims procedurally barred state law castille peoples however procedural bar gives rise exhaustion provides independent adequate statelaw ground conviction sentence thus prevents federal habeas corpus review defaulted claim unless petitioner demonstrate cause prejudice default teague lane supra isaac supra wainright sykes virginia writ habeas corpus ad subjiciendum shall granted basis allegation facts petitioner knowledge time filing previous petition code ann section petitioner knew grounds brady claim filed first petition section precludes review petitioner claim future state habeas proceeding petitioner makes attempt demonstrate cause prejudice default state habeas proceedings claim cognizable federal suit writ iii picard connor held purposes exhausting state remedies claim relief habeas corpus must include reference specific federal constitutional guarantee well statement facts entitle petitioner relief considered whether habeas petitioner entitled relief basis claim raised state courts federal habeas petition indictment procedure brought trial violated equal protection announcing substance federal habeas corpus claim must first presented state courts rejected contention petitioner satisfied exhaustion requirement section presenting state courts facts necessary state claim relief state dealt arguments habeas petitioner offered fault failing also consider sua sponte whether indictment procedure denied petitioner equal protection laws also indicated enough make general appeal constitutional guarantee broad due process present substance claim state anderson harless habeas petitioner granted relief ground violated due process jury instruction obviate requirement prosecutor prove elements crime beyond reasonable doubt citing sandstrom montana manner habeas petitioner cited federal authority referring decision defendant asserted broad federal due process right jury instructions properly explain state law internal quotation marks omitted review record satisfied us sandstrom claim never presented considered state courts found especially significant broad federal due process right habeas petition might read incorporate include particular analysis developed cases sandstrom ibid due process challenge petitioner brief relies two particular analys es due process ibid relying cases like gardner florida skipper south carolina petitioner argues given notice issues involved sentencing hearing reasonably enable prepare case brief petitioner quoting schwartz administrative law ed denied fair opportunity heard determinative sentencing issues brief petitioner right stems defendant legitimate interest character procedure leads imposition sentence death gardner supra justifies giving opportunity deny potentially determinative sentencing information yet another way state may unconstitutionally deprive defendant meaningful opportunity address issues simply misinforming brief petitioner petitioner cites ruffalo raley ohio mooney holohan proposition ruffalo disbarment proceeding held disbarred attorney given notice charges ohio committee administered bar discipline raley chairman members state investigating commission assured witnesses privilege available witnesses convicted contempt ohio held state immunity statute rendered fifth amendment privilege unavailable mooney holohan defendant alleged prosecution knowingly used perjured testimony trial ambiguity whether misrepresentation claim raised addressed district appeals one hand district ordered relief primarily basis gardner lack notice supra hand district findings advert deliberate decision prosecutor mislead petitioner counsel tactical advantage see app ambiguity federal record complicates procedural default issue procedural default affirmative defense commonwealth misrepresentation claim addressed stage federal proceedings commonwealth obligated raise procedural default defense lose right assert defense thereafter see jenkins anderson see also schiro farley remand appeals determine whether petitioner fact raised briefs merits asserts fundamental complaint throughout litigation commonwealth affirmative misrepresentation regarding presentation sorrell murders deprived petitioner fair sentencing proceeding reply brief petitioner misrepresentation claim raised appeals consider whether commonwealth preserved defenses proceed consider claim preserved defenses appropriate latest petitioner knew start trial prosecutor intended introduce evidence tending show committed sorrell murders knew commonwealth call tucker stand repeat statement petitioner admitted committing murders see app record nonetheless contends deprived adequate notice witnesses police officer medical examiner investigated sorrell murders advised prosecutor call evening sentencing hearing app record petitioner attempt cure inadequacy notice requesting time respond evidence instead moved excluded evidence penalty trial evidence pertaining felony defendant yet charged facts petitioner prevail claim must establish due process requires receive day notice commonwealth evidence must also establish due process required continuance whether sought one chose seek continuance exclusion appropriate remedy inadequate notice conclude adoption new constitutional rule establish propositions defendant right notice charges must defend well established ruffalo cole arkansas defendant claim right notice evidence state plans use prove charges stands quite different footing said due process clause little say regarding amount discovery parties must afforded wardius oregon weatherford bursey considered due process claim defendant convicted aid surprise testimony accomplice undercover agent although prosecutor intended introduce agent testimony changed mind day trial keep cover agent told defendant counsel testify defendant rejected defendant claim explaining general constitutional right discovery criminal case brady addressed exculpatory evidence create one put mildly cases compel order prosecutor disclose evidence import fact strongly validity petitioner claim petitioner relies principally gardner florida proposition defendant may sentenced death basis information opportunity deny explain opinion stevens gardner trial sentenced defendant death relying part evidence assembled presentence investigation state parole commission investigation report contained confidential portion disclosed defense counsel gardner literally opportunity even see confidential information let alone contest petitioner present case hand opportunity hear testimony officer slezak presswalla open claim notice much akin one rejected weatherford supra one upheld gardner even cases otherwise notice issue acknowledged exclusion evidence sole remedy violation conceded right notice alibi witness taylor illinois said situation less drastic sanction always available prejudice minimized granting continuance counsel request continuance argued exclusion counsel argued evidence excluded prepared contest evidence also exceeded standard virginia watkins commonwealth relevance evidence sentencing see record view petitioner insistence exclusion evidence trial might well felt interfering tactical decision counsel order continuance motion dissent argues petitioner seeks benefit rule capital defendant must afforded meaningful opportunity explain deny evidence introduced sentencing post disagree dissent assertion petitioner moved continuance disagree characterization constitutional rule underlying claim relief compare supra post dissent glosses similarities case weatherford dictate post disposition petitioner clearly precedent cited dissent even without weatherford petitioner failure move continuance still think doctrine meaningless applied level generality sawyer smith therefore hold petitioner claim require adoption new constitutional rule observed saffle parks paradigmatic example watershed rule criminal procedure requirement counsel provided criminal trials serious offenses citing gideon wainwright whatever one may think importance petitioner proposed rule none primacy centrality rule adopted gideon rules may thought within exception parks supra rule teague therefore applies petitioner may obtain habeas relief claim iv ordered justice stevens dissenting justice ginsburg cogently explained law requires reversal judgment appeals join opinion additional observation evidence tending support proposition petitioner committed sorrell murders even sufficient support filing charges whatever limits due process places upon introduction evidence unadjudicated conduct capital cases surely exceeded given vital importance decision impose death sentence appear based reason rather caprice emotion sentencing proceeding fundamentally unfair even prosecutors given defense counsel fair notice intent offer evidence see gardner florida opinion stevens justice ginsburg justice stevens justice souter justice breyer join dissenting basic due process criminal proceedings right full fair potentially effective opportunity defend state charges petitioner gray accorded fundamental right penalty phase trial capital murder therefore conclude new rule implicated petition habeas corpus dissent decision denies gray resentencing proceeding seeks conference guilt phase began gray lawyers requested order directing prosecutor disclose evidence introduce penalty phase gray convicted defense counsel wanted know particular whether prosecutor planned introduce evidence relating murders lisa sorrell daughter shanta defense counsel informed trial basis request honor concern probably best stop middle day late afternoon start penalty trial next day good reason believe prosecutor going call people introduce statement client supposedly made another inmate murdered sorrells violent crimes throughout entire area comes going want know advance prepared argument absolute dynamite joint appendix pp hereinafter response defense counsel disclosure request prosecutor told gray lawyers introduce statements gray made inmates gray allegedly admitted killing sorrells following exchange took place defense counsel moore prosecutor ferguson moore going evidence statement ferguson statements client made moore nothing statements ferguson people correct statements made client things emphasis added evening prosecutor informed defense counsel addition gray statements planned introduce evidence relating sorrell murders evidence included testimony detective slezak police officer investigated sorrell murders regarding observations crime scene shortly bodies lisa shanta discovered graphic photographs crime scene depicting interior partially burned car lisa body front seat shanta body trunk testimony doctor presswalla state medical examiner conducted autopsies victims regarding causes deaths graphic photographs victims time autopsies including photograph depicting back lisa head shaved reveal six gunshot wounds doctor presswalla autopsy reports see app additional evidence advanced prosecutor eve penalty phase suggested sorrell murders carried manner strikingly similar murder mcclelland gray commonwealth like lisa sorrell mcclelland shot six times head car partially burned defense counsel later explained similarities mcclelland murder sorrell murder obvious anyone sitting jury box app friday morning december trial proceedings resumed defense counsel informed thursday evening developments gray lawyers told learned first time previous evening prosecutor planned introduce evidence relating sorrell murders gray alleged statements counsel stated prepared rebut statements prepared rebut additional evidence shortness notice prepared try sorrell murder today counsel told given sufficient notice ibid gray lawyers argued case relied prosecutor watkins commonwealth distinguishable counsel explained separate murder charges outstanding defendant lawyers representing watkins first murder trial already representing respect second murders aware charges aware evidence available commonwealth second murder charge position confront evidence come penalty trial contrast situation watkins counsel pointed prepared gray may made incriminating statements trial nonetheless ruled sorrell murders evidence admissible stage trial penalty phase trial commenced prosecutor keeping representations guilt phase began called melvin tucker stand tucker gray accomplice mcclelland murder along gray initially charged capital murder plea negotiations however prosecutor agreed reduce charge tucker murder noncapital offense exchange tucker testimony gray app tucker testified guilt phase gray triggerman mcclelland murder tucker testified penalty phase shortly mcclelland robbery gray searching newspaper information crime according tucker gray stated knocked lisa sorrell pointed picture lisa sorrell newspaper gray lawyers declined tucker penalty phase testimony view tucker motive lie already adequately exposed guilt phase see testimony defense counsel moore melvin tucker extensively guilt phase jurors sitting guilt trial penalty phase told drawn pretty accurate picture melvin tucker strike deal tell anybody anything wanted hear save life need brought prosecutor called detective slezak defense counsel renewed objection outside presence jury admission evidence relating sorrell murders gray statements counsel reiterated notice taken surprise prosecutor going today emphasized said going beginning trial adhered earlier ruling evidence admissible nothing tucker testimony linking gray sorrell murders trial allowed prosecutor introduce testimony detective slezak doctor presswalla well crime scene autopsy photographs victims autopsy reports see supra defense case gray took stand admitted complicity mcclelland murder denied triggerman denied involvement sorrell murders app closing arguments prosecutor highlighted similarities sorrell mcclelland murders urged gray commission sorrell murders demonstrated future dangerous ness see jury fixed gray punishment death gray unsuccessfully argued direct appeal virginia state habeas proceedings admission additional sorrell murders evidence violated right fair trial fourteenth amendment gray filed federal habeas petition district eastern district virginia gray argued among things admission sorrell murders evidence violated fourteenth amendment rights specifically asserted commonwealth disclose intentions use sorrell murders evidence gray late date impossible gray defense counsel reasonably prepare defend evidence trial late notice gray adequately prepare defend innocence regarding sorrell murders conducting evidentiary hearing district granted gray writ habeas corpus relying primarily gardner florida held gray due process rights violated commonwealth failed provide fair notice evidence concerning sorrell murders introduced penalty phase app consequently gray became vulnerable death sentence basis information scant opportunity deny explain see recalling prosecutor monday morning affirmations introduce gray statements district noted gray lawyers clearly justifiably shocked prosecutor reported thursday evening intention introduce next day evidence sorrell murders sorrell murder evidence gray lawyers prepared challenge district recounted evidence prosecutor indicated introduce outset trial melvin tucker statement gray allegedly confessed murders prosecutor surprise move disarmed gray counsel district recognized leaving without capacity detective slezak doctor presswalla effectively result sorrell murders evidence carrie assurance reliability consequences surprise district found devastating critically prosecutor statements assurance led defense counsel forgo investigation details sorrell murders including review evidence collected chesapeake police department investigation crimes see ibid gray lawyers conducted review shown none forensic evidence collected chesapeake police directly linked gray sorrell murders moreover evidence chesapeake police obtain strongly suggested timothy sorrell husband shanta actually committed notorious murders police subsequently learned timothy sorrell apparent motive murders two weeks lisa shanta killed sorrells obtained life insurance policy designated timothy shanta beneficiaries event lisa death lisa parents later filed lawsuit stop sorrell obtaining proceeds insurance policy alleging responsible lisa death ibid addition police uncovered evidence suggesting sorrell involved stolen merchandise ring place employment naval supply center lisa angry unhappy husband apparent criminal activities based information detective slezak asked local commonwealth attorney determine whether appropriate prosecute timothy sorrell ibid assessing prejudicial potency sorrell murders evidence admitted penalty phase gray trial district concluded due process violation harmless district therefore vacated gray death sentence remanded case state trial resentencing appeals fourth circuit reversed gray thompson held federal habeas relief barred gray due process claim depended new rule constitutional law teague lane applied collateral review appeals accordingly remanded case directing district dismiss gray habeas petition ii gray claim encompassing fundamental due process clause contends capital defendant must afforded meaningful opportunity explain deny evidence introduced sentencing see brief petitioner reply brief petitioner district concluded gray stripped meaningful opportunity explain deny sorrell murders evidence lawyers unfairly ambushed surprised devastatingly disarmed prosecutor decision announced eve penalty trial introduce extensive evidence gray statements app gray counsel reasonably relied prosecutor unequivocal statements pledge see made outset trial based prosecutor assurances defense counsel spent resources tracking information police records sorrell murders prosecutor switch altogether unanticipated defense counsel left chance uncover investigation information defused prosecutor case short without time prepare effective defense fourth circuit recast gray claim transforming assertion broad constitutional right discovery capital cases see also restates reshapes gray claim first slices gray whole claim pieces deals discretely segment perceive ante misrepresentation claim ante supposed claim ante gray however never claimed constitutional right advance discovery commonwealth evidence brief petitioner accompanying text claim basic succumb artificial endeavors divide conquer nothing new rule capital defendants must afforded meaningful opportunity defend state penalty phase evidence affirmed century ago common justice requires man shall condemned person property without opportunity make defence baldwin hale wall see also windsor mcveigh pro forma opportunity due process demands opportunity heard meaningful time meaningful manner armstrong manzo see oliver defendant must afforded reasonable opportunity meet charges way defense explanation morgan right hearing embraces right present evidence also reasonable opportunity know claims opposing party meet absent full fair potentially effective opportunity defend state charges right hearing barren one ibid see mullane central hanover bank trust process mere gesture due process gardner florida principal decision relied district confirmed sentencing phase capital trial must satisfy requirements due process clause plurality opinion gardner presented question whether defendant denied due process trial judge sentenced death relying part presentence report including confidential portion disclosed defense counsel counsel deprivation opportunity challenge accuracy materiality undisclosed information gardner plurality reasoned left manifest risk information accepted confidence may erroneous misinterpreted basis death sentence gardner teaches information unexposed adversary testing qualify reliable see ibid gardner vacated defendant sentence concluding denied due process law death penalty imposed least part basis information opportunity deny explain urging gardner fails dictate decision gray commonwealth relies fourth circuit reasoning effect gardner case secrecy gray case surprise see therefore gray seeks extension application gardner see brief respondent teague parlance new rule brief respondent impermissible leap fourth circuit maintained equate failure disclose disclosure fact made allegedly late unfair teague straightjacket commonwealth misunderstands teague requires federal courts decide habeas petitioner constitutional claims according law prevailing time conviction became final teague plurality opinion internal quotation marks omitted teague bar federal habeas courts applying myriad factual contexts law right meaningful chance defend explain charges pressed state see wright west kennedy concurring judgment beginning point rule general application rule designed specific purpose evaluating myriad factual contexts infrequent case yields result novel forges new rule one dictated district forg new rule holding facts case gray denied meaningful opportunity challenge sorrell murders evidence ordinarily incumbent upon defense counsel receiving adequate notice triable issues pursue whatever investigation needed rebut relevant evidence state may introduce however keeping practice approved virginia highest see supra prosecutor expressly delineated scope character evidence introduce respect sorrell murders nothing statements gray allegedly made see supra gray lawyers reasonably relied prosecutor statements assurance forgoing inquiry details sorrell crimes investigation responsibly determined unnecessary cast doubt veracity inmate snitch testimony evidence prosecutor initially said offer gray lawyers undeniably caught short prosecutor startling announcement night penalty phase begin effect put sorrell murders point gray lawyers possibly conduct investigation preparation necessary counter prosecutor newly announced evidence thus penalty trial defense counsel reduced nearly role spectators lacking proof later uncovered strongly suggested timothy sorrell gray actual killer app gray lawyers mount feeble detective slezak counsel simply inquired detective whether crimes prompt copycat crimes see gray lawyers questions doctor presswalla medical examiner testified sorrell autopsies sum record shows beyond genuine debate gray afforded meaningful opportunity defend additional sorrell murders evidence fatal infection present gardner infects case well defense counsel effectively deprived opportunity challenge accuracy materiality information relied imposing death sentence gardner unexposed adversary testing sorrell murders evidence carrie assurance reliability app debate adversaries valued system justice contribution function trials gardner precluded prosecutor shift trial tolerance hold otherwise simply ignore actualities powell alabama reasons stated conclude district decision vacating gray death sentence rest new rule constitutional law therefore reverse judgment appeals respectfully dissent decision footnotes prosecutor introduced testimony evidence petitioner future dangerousness prosecutor also introduced evidence petitioner criminal record included felony convictions least crimes violence including armed robbery malicious wounding petitioner record revealed locked restaurant employees food freezer robbing restaurant threatened lives two persons mcclelland gray commonwealth cert denied five subclaims relevant review petitioner object later start penalty phase admission sorrell murder evidence counsel conceded prepared refute evidence consisted testimony tucker petitioner fellow inmates petitioner admitted killing sorrells see record district described petitioners counsel made plea additional time prepare app appeals found plea insufficient legal effect defense felt unprepared undertake effective one think formal motion continuance forthcoming none ever made counsel moved evidence excluded gray thompson agree appeals request made pursuant peterson commonwealth instructed virginia law preferred practice capital trials make known defendant trial evidence adduced penalty stage found guilty gray convicted killing sorrells virginia law bar admission evidence relating crimes penalty phase trial one virginia two aggravating circumstances requires jury determine whether probability defendant commit criminal acts violence constitute continuing serious threat society code ann section virginia held evidence prior unadjudicated criminal conduct may used penalty phase prove defendant propensity commit criminal acts violence future watkins commonwealth district suggested one respect version events implausible mcclelland murder occurred may six months sorrells killed newspaper may containing photograph lisa sorrell ever introduced evidence see app district noted regard investigator engaged gray federal habeas counsel run driving test indicating coleman gray performed sorrell murders wife dinner hour prosecutor speculated police designated sorrell sole suspect evidence sent crime labs analysis asked describe sorrell demeanor made suspicious slezak testified know describe say expect find situation like seemed defensive contrast police never established gray supposed motive killing sorrells lisa found jewelry necklace gold earrings undisturbed well cash postal money order suggesting robbery perpetrator motive despite defense counsel pretrial request exculpatory evidence pursuant brady maryland prosecutor never disclosed evidence incriminating timothy sorrell gray presented brady claim federal habeas petition district noted claim raised state therefore held procedurally barred gray trial local prosecutor reportedly stated affidavit sorrell longer suspect see news report cf gault notice parents night juvenile delinquency hearing constitutionally inadequate due process requires notice given sufficiently advance scheduled proceedings reasonable opportunity prepare afforded powell alabama defense counsel appointed morning trial satisfy constitutional requirement counsel lacked opportunity investigate case observed decide otherwise simply ignore actualities attaches weight failure gray lawyers ask explicitly deferral penalty phase see ante uncontested defense counsel made formal motion continuance district described episode counsel plea ded additional time prepare app earlier noted see supra counsel explicit dilemma confronting defense prepared try sorrell murder today suggestion plea insufficient legal effect ante puzzling neither fourth circuit commonwealth cited virginia authority proposition cf smith estelle state points us rule texas law saying moving continuance way object surprise aff grounds given potency evidence question difficult comprehend speculation defense counsel tactical reasons may wanted exclusion time compare ante tr oral arg counsel petitioner urged trial judge asked please stop happening violates client right fair trial existence right turn whether counsel next says please exclude evidence opposed please give time weatherford bursey featured see ante hardly controls case state witness prosecutor misled defense counsel furthermore weatherford involve penalty phase capital trial stage reliability concerns vital finally defendant weatherford object trial surprise witness later show prejudiced surprise