Cite as: 527 U. S. 263 (1999)
Opinion of the Court
tutional error on the basis of mere suspicion that some prose-cutorial misstep may have occurred.
Respondent's position on the "cause" issue is particularly weak in this case because the state habeas proceedings confirmed petitioner's justification for his failure to raise a Brady claim. As already noted, when he alleged that trial counsel had been incompetent because they had not advanced such a claim, the warden responded by pointing out that there was no need for counsel to do so because they "were voluntarily given full disclosure of everything known to the government." 31 Given that representation, petitioner had no basis for believing the Commonwealth had failed to comply with Brady at trial.32
Respondent also argues that our decisions in Gray v. Netherland, 518 U. S. 152 (1996), and McCleskey v. Zant, 499 U. S. 467 (1991), preclude the conclusion that the cause for petitioner's default was adequate. In both of those cases, however, the petitioner was previously aware of the factual basis for his claim but failed to raise it earlier. See Gray, 518 U. S., at 161; McCleskey, 499 U. S., at 498-499. In the context of a Brady claim, a defendant cannot conduct the "rea-31 This statement is quoted in full at n. 14, supra. Respondent argues that this representation is not dispositive because it was made in his motion to dismiss and therefore cannot excuse the failure to include a Brady claim in the petitioner's original state habeas pleading. We find the timing of the statement irrelevant, since the warden's response merely summarizes the Commonwealth's "open file" policy, instituted by the prosecution at the inception of the case.
32 Furthermore, in its opposition to petitioner's motion during state habeas review for funds for an investigator, the Commonwealth argued: "Strickler's Petition contains 139 separate habeas claims. By requesting appointment of an investigator 'to procure the necessary factual basis to support certain of Petitioner's claims' (Motion, p. 1), Petitioner is implicitly conceding that he is not aware of factual support for the claims he has already made. Respondent agrees." App. 242.
In light of these assertions, we fail to see how the Commonwealth believes petitioner could have shown "good cause" sufficient to get discovery on a Brady claim in state habeas.
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