166
Opinion of the Court
Commonwealth. If the misrepresentation claim was addressed at some stage of federal proceedings, the Commonwealth would have been obligated to raise procedural default as a defense, or lose the right to assert the defense thereafter. See Jenkins v. Anderson, 447 U. S. 231, 234, n. 1 (1980); see also Schiro v. Farley, 510 U. S. 222, 227-228 (1994).
We remand for the Court of Appeals to determine whether petitioner in fact raised what in his briefs on the merits to this Court he asserts has been his "fundamental complaint throughout this litigation . . . : the Commonwealth's affirmative misrepresentation regarding its presentation of the Sorrell murders . . . deprived Petitioner of a fair sentencing proceeding." Reply Brief for Petitioner 4-5. If the misrepresentation claim was raised, the Court of Appeals should consider whether the Commonwealth has preserved any defenses to it and proceed to consider the claim and preserved defenses as appropriate.
C
We turn to the notice-of-evidence claim, and consider whether the Court of Appeals correctly concluded that this claim sought the retroactive application of a new rule of federal constitutional law. We have concluded that the writ's purpose may be fulfilled with the least intrusion necessary on States' interest of the finality of criminal proceedings by applying constitutional standards contemporaneous with the habeas petitioner's conviction to review his petition. See Teague, 489 U. S., at 309-310 (opinion of O'Connor, J.). Thus, habeas relief is appropriate only if "a state court considering [the petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Saffle v. Parks, 494 U. S. 484, 488 (1990).
At the latest, petitioner knew at the start of trial that the prosecutor intended to introduce evidence tending to show that he committed the Sorrell murders. He knew then that the Commonwealth would call Tucker to the stand to
Page: Index Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: October 4, 2007