422
Syllabus
importance, yet failed to investigate in anything but a cursory manner, this Court is not satisfied with petitioner's explanation that, although an investigator for his federal habeas counsel discovered the report in Cruse's court file, his state counsel had not seen the report when he reviewed the same file. Because this constitutes a failure to develop the factual basis of petitioner's Brady claim in state court, this Court must determine if the requirements in the balance of § 2254(e)(2) are satisfied so that petitioner's failure is excused. Subparagraph (B) of § 2254(e)(2) conditions a hearing upon a showing, by clear and convincing evidence, that no reasonable factfinder would have found petitioner guilty of capital murder but for the alleged constitutional error. Petitioner concedes he cannot make this showing, and the case has been presented to this Court on that premise. Accordingly, the Fourth Circuit's judgment barring an evidentiary hearing on this claim is affirmed. Pp. 437-440.
(d) However, petitioner has met the burden of showing he was diligent in efforts to develop the facts supporting his juror bias and prose-cutorial misconduct claims in state court. Those claims are based on two questions posed by the trial judge at voir dire. First, the judge asked prospective jurors whether any of them was related to, inter alios, Deputy Sheriff Meinhard, who investigated the crime scene, interrogated Cruse, and later became the prosecution's first witness. Venire member Stinnett, who had divorced Meinhard after a 17-year marriage and four children, remained silent, thereby indicating the answer to the question was "no." Second, the judge asked whether any prospective juror had ever been represented by any of the attorneys in the case, including prosecutor Woodson. Stinnett again said nothing, although Woodson had represented her during her divorce from Meinhard. Later, Woodson admitted he knew Stinnett and Meinhard had been married and divorced, but stated that he did not consider divorced people to be "related" and that he had no recollection of having been involved as a private attorney in the divorce. Stinnett's silence after the first question could suggest to the factfinder an unwillingness to be forthcoming; this in turn could bear on her failure to disclose that Woodson had been her attorney. Moreover, her failure to divulge material information in response to the second question was misleading as a matter of fact because Woodson was her counsel. Coupled with Woodson's own reticence, these omissions as a whole disclose the need for an evidentiary hearing. This Court disagrees with the Fourth Circuit's conclusion that petitioner's state habeas counsel should have discovered Stinnett's relationship to Meinhard and Woodson. The trial record contains no evidence which would have put a reasonable attorney on notice that Stinnett's nonresponse was a deliberate omission of material information,
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