Cite as: 540 U. S. 668 (2004)
Opinion of the Court
transcript. App. 422-423. When the transcript surfaced in response to the Magistrate Judge's 1999 disclosure order, Banks raised that newly discovered, long withheld document in his proposed findings of fact and conclusions of law and, again, in his objections to the Magistrate Judge's report. Id., at 423. The District Court concluded, however, that Banks had not properly pleaded a Brady claim predicated on the withheld Cook rehearsal transcript. App. 422. When that Brady claim came to light, the District Court reasoned, Banks should have moved to amend or supplement his 1996 federal habeas petition specifically to include the 1999 discovery as a basis for relief. App. 423. Banks urged that a Brady claim based on the September 1980 transcript had been aired by implied consent; under Federal Rule of Civil Procedure 15(b), he contended, the claim should have been treated as if raised in the pleadings. App. 433.8 Banks sought, and the District Court denied, a certificate of appealability on this question. Id., at 433, 436.
In an August 20, 2003, unpublished per curiam opinion, the Court of Appeals for the Fifth Circuit reversed the judgment of the District Court to the extent that it granted relief on the Farr Brady claim and denied a certificate of appealability on the Cook Brady claim. App. to Pet. for Cert. A2, judgt. order reported at 48 Fed. Appx. 104 (2002).9 The
8 Federal Rule of Civil Procedure 15(b) provides: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time . . . ." Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts provides that the Federal Rules of Civil Procedure apply "to the extent that they are not inconsistent with [habeas] rules."
9 The Fifth Circuit noted correctly that under Lindh v. Murphy, 521 U. S. 320, 336-337 (1997), the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, do not apply to Banks's petition. See App. to Pet. for Cert. A14-A15.
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