Cite as: 592 U. S. ____ (2021) 1 KAGAN, J., concurring SUPREME COURT OF THE UNITED STATES CHARLES VICTOR THOMPSON v. BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 20–5941. Decided March 22, 2021 The petition for a writ of certiorari is denied. JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, concurring in the denial of certi- orari. A provision of the Antiterrorism and Effective Death Pen- alty Act of 1996, now codified at
. §2254(e)(2), lim- its the availability of evidentiary hearings in federal habeas proceedings. “If the applicant has failed to develop the fac- tual basis of a claim in State court proceedings,” §2254(e)(2) states, then the habeas court “shall not hold an evidentiary hearing on the claim” unless it finds two conditions met.
must rely on either “a new rule of constitutional law” or “a factual predicate that could not have previously been discovered through the exercise of due diligence.”
underlying the claim must be “sufficient to establish by clear and convincing ev- idence that but for constitutional error, no reasonable fact- finder would have found the applicant guilty of the under- lying offense.”
rides on that provision’s opening clause. The restriction of evidentiary hearings never kicks in, the clause says, unless “the applicant has failed to develop the factual basis of [his] claim in State court proceedings.” Ibid.; see Williams v. Taylor,
, 430 (2000) (“By the terms of its opening clause the statute applies” only when “the prisoner has failed to develop the facts”). And this Court has held in no uncertain terms that the phrase 2 THOMPSON v. LUMPKIN KAGAN, J., concurring “failed to develop” implies a “lack of diligence”—or other- wise said, “some omission, fault, or negligence” attributable to the habeas applicant.
So if an appli- cant’s claim went “undeveloped in state court” because of something other than his own neglect—most typically, be- cause of “the prosecution[’s] conceal[ment of] the facts”— then §2254(e)(2)’s restriction of evidentiary hearings would not apply.
In that case, the habeas petitioner does not have to meet the section’s stringent demands. See
(“[O]nly a prisoner who has neglected his rights in state court need satisfy [§2254(e)(2)’s two] conditions”). Even if he cannot do so, he can obtain an evidentiary hear- ing. In this case, the Court of Appeals for the Fifth Circuit re- jected petitioner Charles Thompson’s request for an eviden- tiary hearing on two claims relating to his capital sentence. See Thompson v. Davis,
, 458 (2019). Thomp- son could not get a hearing, the court held, because he al- leged errors only in his punishment proceeding. “Even if Thompson were to prevail on th[ose] claim[s],” the court ex- plained, “his guilty verdict would remain untouched.”
Fifth Circuit, that meant Thompson could not satisfy §2254(e)(2) because its second condition de- mands that the applicant’s claims refute his guilt.* And so, the court concluded, “the district court did not have discre- tion to grant [Thompson] a hearing.”
skips a critical step. As just explained, §2254(e)(2)’s conditions never come into play if a habeas pe- titioner has pursued his claim with diligence in state court. And they therefore would not prevent an evidentiary hear- ing. Yet the Fifth Circuit decision says not a word about the question of diligence. The court did not discuss whether —————— * That issue is itself the subject of a Circuit split. Compare
, with Thompson v. Calderon,
, 924 (CA9 1998) (en banc). Cite as: 592 U. S. ____ (2021) 3 KAGAN, J., concurring Thompson “made a reasonable attempt, in light of the in- formation available at the time, to investigate and pursue [his] claims in state court.”
Williams, 529 U.S., at 435
. Nor could the court have thought his lack of diligence so clear as to somehow go without saying. Consider that the court, just a few paragraphs earlier, granted a certificate of ap- pealability (COA) on Thompson’s two claims even though they were procedurally defaulted. It did so because “jurists of reason could debate” (as the COA standard requires) whether the default resulted not from Thompson’s neglect but from the State’s concealment of
. That “debatable” question is the same one Thompson’s request for a hearing raises. If Thompson’s claims went un- developed in state court not through his own fault, but be- cause “the prosecution concealed the facts,” then §2254(e)(2) would drop out of the picture.
U.S., at 434
. So in failing to address the (concededly de- batable) diligence issue, the Fifth Circuit may have wrongly deprived Thompson of an evidentiary hearing. Still, I do not think this Court’s intervention warranted. I doubt that the Fifth Circuit meant to adopt a novel view of §2254(e)(2), in conflict with how this Court has construed the provision and how every other Court of Appeals applies it. See, e.g., Williams v. Jackson,
, 630–631 (CA7 2020) (“[F]ocusing on the innocence requirement skims over” another issue—that §2254(e)(2) “does not pro- hibit a hearing where the petitioner’s failure to develop the factual basis for his claim was beyond his control”). Indeed, several prior Fifth Circuit decisions have gotten the law right. See, e.g., Harrison v. Quarterman,
, 428 (2007) (recognizing that §2254(e)(2) “is not operative” if the petitioner was diligent). And assuming the decision below is a one-off misapplication of law, our rules counsel against granting review. See Supreme Court Rule 10 (stating cri- teria for a writ of certiorari). That course is all the more appropriate here because a later decision in Thompson’s 4 THOMPSON v. LUMPKIN KAGAN, J., concurring case raises serious questions about whether an evidentiary hearing would have led to granting him relief on the merits. See Thompson v. Davis,
, 816 (CA5 2019). So, because I doubt the Fifth Circuit will repeat its error, and because that error probably made no difference, I concur in the denial of certiorari.