674
Opinion of the Court
fault defenses. Ibid. Under pre-AEDPA law, no inconsistency arose between Rule 15(b) and those defenses. Doubtless, that is why this Court's pre-AEDPA cases assumed Rule 15(b)'s application in habeas proceedings. See, e. g., ibid. While AEDPA forbids a finding that exhaustion has been waived absent an express waiver by the State, 28 U. S. C. § 2254(b)(3), pre-AEDPA law allowed waiver of both defenses— exhaustion and procedural default—based on the State's litigation conduct, see, e. g., Gray v. Netherland, 518 U. S. 152, 166. To obtain a certificate of appealability, a prisoner must demonstrate that reasonable jurists could disagree with the district court's resolution of his constitutional claims or that the issues presented warrant encouragement to proceed further. Miller-El v. Cockrell, 537 U. S. 322, 327. This case fits that description as to the application of Rule 15(b). Pp. 703-706.
48 Fed. Appx. 104, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Souter, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined, post, p. 706.
George H. Kendall argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Janai S. Nelson, Miriam Gohara, and Clifton L. Holmes.
Gena Bunn, Assistant Attorney General of Texas, argued the cause for respondent. With her on the brief were Greg Abbott, Attorney General, Barry R. McBee, First Assistant Attorney General, Jay Kimbrough, Deputy Attorney General, and Edward L. Marshall and Katherine D. Hayes, Assistant Attorneys General.*
Justice Ginsburg delivered the opinion of the Court.
Petitioner Delma Banks, Jr., was convicted of capital murder and sentenced to death. Prior to trial, the State advised
*Briefs of amici curiae urging reversal were filed for William G. Broad-dus et al. by William F. Sheehan; and for John J. Gibbons et al. by Peter Buscemi and Brooke Clagett. A. P. Carlton, Jr., Lynn R. Coleman, and Matthew W. S. Estes filed a brief for the American Bar Association as amicus curiae.
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