Thurgood Marshall

“ A petitioner who gives no explanation for omitting his claims from a previous application necessarily fails to carry his burden of justification. Similarly, in Antone v. Dugger, 465 U.S. 200, 104 S.Ct. 962, 79 L.Ed.2d 147 (1984) (per curiam ) , the Court rejected as "meritless" the petitioner's claim that the imminence of his execution prevented his counsel from identifying all of the claims that could be raised in the first petition, because the petitioner's execution had in fact been stayed during the pendency of the original habeas proceeding. ”

“ Explaining that "the 'not excusable' language [would] creat [e] a new and undefined standard that [would] g [ive] a judge too broad a discretion to dismiss a second or successive petition," Congress substituted Sanders ' "abuse of the writ" formulation. ”

“ Indeed, it was by piecing together the circumstances under which the statement had been transcribed that McCleskey's counsel was able to find Worthy, a state official who was finally willing to admit that Evans had been planted in the cell adjoining McCleskey's. [12]
The majority's analysis of this case is dangerous precisely because it treats as irrelevant the effect that the State's disinformation strategy had on counsel's assessment of the reasonableness of pursuing the Massiah claim. For the majority, all that matters is that no external obstacle barred McCleskey from finding Worthy. ”

“ Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. ”

“ A petitioner also abuses the writ under Sanders when he uses the writ to achieve some end other than expeditious relief from unlawful confinement-such as "to vex, harass, or delay." However, so long as the petitioner's previous application was based on a good-faith assessment of the claims available to him, see Price v. Johnston, supra, 334 U.S., at 289, 68 S.Ct., at 1062; Wong Doo, supra, 265 U.S., at 241, 44 S.Ct., at 525; the denial of the application does not bar the petitioner from availing himself of "new or additional information," Price v. ”