20
O'Connor, J., dissenting
comes to determining whether a hearing is to be held to resolve a claim that is already properly before a federal court, the federalism concerns underlying our procedural default cases are diminished somewhat. By this point, our concern is less with encroaching on the territory of the state courts than it is with managing the territory of the federal courts in a manner that will best implement their responsibility to consider habeas petitions. Our adoption of a cause and prejudice standard to resolve the first concern should not cause us reflexively to adopt the same standard to resolve the second. Federalism, comity, and finality are all advanced by declining to permit relitigation of claims in federal court in certain circumstances; these interests are less significantly advanced, once relitigation properly occurs, by permitting district courts to resolve claims based on an incomplete record.
III
The Court's decision today cannot be reconciled with subsection (d) of 28 U. S. C. § 2254, which Congress enacted only three years after we decided Townsend. Subsection (d) provides that state court factfinding "shall be presumed to be correct, unless the applicant shall establish" one of eight listed circumstances. Most of these circumstances are taken word for word from Townsend, including the one at issue here; § 2254(d)(3) renders the presumption of correctness inapplicable where "the material facts were not adequately developed at the State court hearing." The effect of the presumption is to augment the habeas petitioner's burden of proof. Where state factfinding is presumed correct, the petitioner must establish the state court's error "by convincing evidence"; where state factfinding is not presumed correct, the petitioner must prove the facts necessary to support his claim by only a preponderance of the evidence. Sumner v. Mata, 449 U. S. 539, 551 (1981).
Section 2254(d) is not, in the strict sense, a codification of our holding in Townsend. The listed circumstances in
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