438
Opinion of the Court
port was in contravention of Brady v. Maryland, 373 U. S. 83 (1963). The report concluded Cruse "ha[d] little recollection of the [murders of the Kellers], other than vague memories, as he was intoxicated with alcohol and marijuana at the time." App. 495. The report had been prepared in September 1993, before petitioner was tried; yet it was not mentioned by petitioner until he filed his federal habeas petition and attached a copy of the report. Petitioner explained that an investigator for his federal habeas counsel discovered the report in Cruse's court file but state habeas counsel had not seen it when he had reviewed the same file. State habeas counsel averred as follows:
"Prior to filing [petitioner's] habeas corpus petition with the Virginia Supreme Court, I reviewed the Cumberland County court files of [petitioner] and of his co-defendant, Jeffrey Cruse. . . . I have reviewed the attached psychiatric evaluation of Jeffrey Cruse . . . . I have no recollection of seeing this report in Mr. Cruse's court file when I examined the file. Given the contents of the report, I am confident that I would remember it." Id., at 625-626.
The trial court was not satisfied with this explanation for the late discovery. Nor are we.
There are repeated references to a "psychiatric" or "mental health" report in a transcript of Cruse's sentencing proceeding, a copy of which petitioner's own state habeas counsel attached to the state habeas petition he filed with the Virginia Supreme Court. The transcript reveals that Cruse's attorney described the report with details that should have alerted counsel to a possible Brady claim. As Cruse's attorney said:
"The psychiatric report . . . point[s] out that [Cruse] is significantly depressed. He suffered from post traumatic stress. His symptoms include nightmares, sleeplessness, sobbing, reddening of the face, severe depres-
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