Cite as: 504 U. S. 1 (1992)
O'Connor, J., dissenting
Townsend are those in which a hearing must be held; the nearly identical listed circumstances in § 2254(d) are those in which facts found by a state court are not presumed correct. But the two are obviously intertwined. If a habeas petitioner fulfills one of the Townsend requirements he will be entitled to a hearing, and by virtue of fulfilling a Townsend requirement he will necessarily have also fulfilled one of the § 2254(d) requirements, so that at his hearing the presumption of correctness will not apply. On the other hand, if the petitioner has not fulfilled one of the Townsend requirements he will generally not have fulfilled the corresponding § 2254(d) requirement either, so he will be entitled neither to a hearing nor to an exception from the presumption of correctness. Townsend and § 2254(d) work hand in hand: Where a petitioner has a right to a hearing he must prove facts by a preponderance of the evidence, but where he has no right to a hearing he must prove facts by the higher standard of convincing evidence. Without the opportunity for a hearing, it is safe to assume that this higher standard will be unattainable for most petitioners. See L. Yackle, Postconviction Remedies 508-509 (1981).
In enacting a statute that so closely parallels Townsend, Congress established a procedural framework that relies upon Townsend's continuing validity. In general, therefore, overruling Townsend would frustrate the evident intent of Congress that the question of when a hearing is to be held should be governed by the same standards as the question of when a federal court should defer to state court factfinding. In particular, the Court's adoption of a "cause and prejudice" standard for determining whether the material facts were adequately developed in state proceedings will frustrate Congress' intent with respect to that Townsend circumstance's statutory analog, § 2254(d)(3).
For a case to fit within this Townsend circumstance but none of Townsend's other circumstances, the case will very likely be like this one, where the material facts were not
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