Cite as: 540 U. S. 668 (2004)
Opinion of the Court
nity to present evidence bearing on th[e] claim's resolution." Withrow, 507 U. S., at 696. Nor do we find convincing the Fifth Circuit's view that applying Rule 15(b) in habeas proceedings would undermine the State's exhaustion and procedural default defenses. Ibid. Under pre-AEDPA law, there was no inconsistency between Rule 15(b) and those defenses. That is doubtless why this Court's pre-AEDPA cases assumed Rule 15(b)'s application in habeas proceedings. See ibid.; Harris, 394 U. S., at 294, n. 5.20 We note in
this regard that, while AEDPA forbids a finding that exhaustion has been waived unless the State expressly waives the requirement, 28 U. S. C. § 2254(b)(3), under pre-AEDPA law, exhaustion and procedural default defenses could be waived based on the State's litigation conduct. See Gray v. Netherland, 518 U. S. 152, 166 (1996) (failure to raise procedural default in federal habeas court means the defense is lost); Granberry v. Greer, 481 U. S. 129, 135 (1987) ("if a full trial has been held in the district court and it is evident that a miscarriage of justice has occurred, it may . . . be appropriate for the court of appeals to hold that the nonexhaustion defense has been waived").
To obtain a certificate of appealability, a prisoner must "demonstrat[e] that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U. S. 322, 327 (2003). At least as to the application of Rule 15(b), this case surely fits that description. A certificate of appealability, therefore, should have issued.
* * *
For the reasons stated, the judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the
20 Banks's case provides no occasion to consider Rule 15(b)'s application under the AEDPA regime.
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