22
O'Connor, J., dissenting
developed because of attorney error. Any other reason the material facts might not have been developed, such as that they were unknown at the time or that the State denied a full and fair opportunity to develop them, will almost certainly be covered by one of Townsend's other circumstances. See Townsend, 372 U. S., at 313. We have already held that attorney error short of constitutionally ineffective assistance of counsel does not amount to "cause." See Murray v. Carrier, 477 U. S., at 488. As a result, the practical effect of the Court's ruling today will be that for a case to fall within Townsend's fifth circumstance but no other—for a petitioner to be entitled to a hearing on the ground that the material facts were not adequately developed in state court but on no other ground—the petitioner's attorney must have rendered constitutionally ineffective assistance in presenting facts to the state factfinder.
This effect is more than a little ironic. Where the state factfinding occurs at the trial itself, counsel's ineffectiveness will not just entitle the petitioner to a hearing—it will entitle the petitioner to a new trial. Where, as in this case, the state factfinding occurs at a postconviction proceeding, the petitioner has no constitutional right to the effective assistance of counsel, so counsel's poor performance can never constitute "cause" under the cause and prejudice standard. Coleman v. Thompson, 501 U. S., at 752. After today's decision, the only petitioners entitled to a hearing under Townsend's fifth circumstance are the very people who do not need one, because they will have already obtained a new trial or because they will already be entitled to a hearing under one of the other circumstances. The Court has thus rendered unusable the portion of Townsend requiring hearings where the material facts were not adequately developed in state court.
As noted above, the fact that § 2254(d)(3) uses language identical to the language we used in Townsend strongly suggests that Congress presumed the continued existence of this
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