Cite as: 513 U. S. 298 (1995)
Scalia, J., dissenting
reference in Sanders to the 'ends of justice,' " 477 U. S., at 451, and concluded that "the 'ends of justice' require federal courts to entertain [successive] petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence." Id., at 454. That conclusion contains two complementary propositions. The first is that a habeas court may not reach the merits of a barred claim unless actual innocence is shown; this was the actual judgment of the opinion (one cannot say the holding, since the opinion was a mere plurality). See id., at 455 (stating that the District Court and Court of Appeals should have dismissed the successive petition because the petitioner's claim of innocence was meritless). The second is that a habeas court must hear a claim of actual innocence and reach the merits of the petition if the claim is sufficiently persuasive; this was the purest dictum. It is the Court's prerogative to adopt that dictum today, but to adopt it without analysis, as though it were binding precedent, will not do. The Kuhl-mann plurality opinion lacks formal status as authority, and, as discussed below, no holding of this Court binds us to it. A decision to follow it must be justified by reason, not simply asserted by will.
And if reasons are to be given, justification of the Kuhl-mann opinion will be found difficult indeed. The plurality's central theory is that "the permissive language of § 2244(b) gives federal courts discretion to entertain successive petitions under some circumstances," so that "[u]nless [the] 'rare instances' [in which successive petitions will be entertained] are to be identified by whim or caprice, district judges must be given guidance for determining when to exercise the limited discretion granted them by § 2244(b)." See 477 U. S., at 451. What the plurality then proceeds to do, however, is not to "guide" the discretion, but to eliminate it entirely, dividing the entire universe of successive and abusive petitions into those that must not be entertained (where there is no showing of innocence) and those that must be entertained (where
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