Cite as: 523 U. S. 614 (1998)
Syllabus
became final before the new rules were announced—does not bar petitioner's claim. There is nothing new about the principle that a plea must be knowing and intelligent; and because Teague by its terms applies only to procedural rules, it is inapplicable to situations where this Court decides the meaning of a criminal statute enacted by Congress. Pp. 619-621.
(c) Nonetheless, there are significant procedural hurdles to consideration of the merits of petitioner's claim, which can be attacked on collateral review only if it was first challenged on direct review. Since petitioner appealed his sentence, but not his plea, he has procedurally defaulted the claim he presses here. To pursue the defaulted claim in habeas, he must first demonstrate either "cause and actual prejudice," e. g., Murray v. Carrier, 477 U. S. 478, 489, or that he is "actually innocent," id., at 496. His arguments that the legal basis for his claim was not reasonably available to counsel at the time of his plea and that it would have been futile to attack the plea before Bailey do not establish cause for the default. However, the District Court did not address whether petitioner was actually innocent of the charge, and the Government does not contend that he waived this claim by failing to raise it below. Thus, on remand, he may attempt to make an actual innocence showing. Actual innocence means factual innocence, not mere legal insufficiency. Accordingly, the Government is not limited to the existing record but may present any admissible evidence of petitioner's guilt. Petitioner's actual innocence showing must also extend to charges that the Government has forgone in the course of plea bargaining. However, the Government errs in maintaining that petitioner must prove actual innocence of both "using" and "carrying" a firearm in violation of § 924(c)(1). The indictment charged him only with "using" firearms, and there is no record evidence that the Government elected not to charge him with "carrying" a firearm in exchange for his guilty plea. Pp. 621-624.
97 F. 3d 284, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 625. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 629.
L. Marshall Smith, by appointment of the Court, 522 U. S. 946, argued the cause and filed briefs for petitioner.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solici-
615
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