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Petitioner seeks to qualify for an exception to 28 U. S. C. §2244(b)(2), the rule against raising new claims in a second habeas petition. The exception in subdivision (A), the "new rule" exception, has three elements: (1) "the claim relies on a new rule of constitutional law"; (2) that rule has been "made retroactive to cases on collateral review by the Supreme Court"; and (3) the claim "was previously unavailable . . . ."
Petitioner, whose first federal petition was litigated from 1988 to 1991, contends that Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam), disapproved in part in Estelle v. McGuire, 502 U. S. 62, 72, n. 4 (1991), qualifies for this exception. The circuits have uniformly held that the first element is satisfied, i.e., Cage is a "new rule," and the state does not dispute that element. In parts II and III, infra, we discuss why the second element is not satisfied. In this part, we explain why the third element is also missing.
The question of the third element of the statute is "fairly included" in the question presented, within the meaning of this Court's Rule 14.1(a). Congress has enacted a coherent exception to the abuse-of-the-writ bar, and the elements deal with the change in the law over time. The elements operate in conjunction to leave only a very small window. See infra, at 6. To address only the "new rule" and "retroactive" elements and ignore an obvious deficiency in the "previously unavailable" element would not be applying the statute Congress enacted; it would be applying a distorted version Congress did not enact. This issue "is a 'predicate to an intelligent resolution' of the question presented, and therefore 'fairly included therein.' " Ohio v. Robinette, 519 U. S. 33, 38 (1996).
Like many provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this section builds upon and strengthens habeas limits from preexisting case law. See Slack v. McDaniel, 529 U. S. 473, 486-487 (2000) (pre-AEDPA law used to construe "second or successive" language of statute). McCleskey v. Zant, 499 U. S. 467, 470 (1991) addressed the standard for "a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus." McCleskey adopted the "cause and prejudice" standard from the procedural default line of cases. See id., at 493.
One type of "cause" asserted in default cases is that the defaulted argument was so novel at the time of prior proceedings that it was not available. See Engle v. Isaac, 456 U. S. 107, 134 (1982) ("available"); Reed v. Ross, 468 U. S. 1, 16 (1984) ("not reasonably available"); Smith v. Murray, 477 U. S. 527, 537 (1986) ("whether at the time of the default the claim was 'available' at all"). The statute's phrase "previously unavailable" is an obvious reference to this line of cases. Cf. Williams v. Taylor, 529 U. S. 420, 433-434 (2000) (words "failed to develop" in §2254(e)(2) echos case law, have the same meaning as in the case law). The window of this exception was small from the start, and the "new rule" doctrine of Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion), narrowed it to the eye of a needle. Any claim that is so "novel" as to be "unavailable" for Engle/Reed is necessarily "new" for Teague. See Breard v. Greene, 523 U. S. 371, 376-377 (1998) (per curiam); Selvage v. Collins, 975 F. 2d 131, 136 (CA5 1992); Gacy v. Welborn, 994 F. 2d 305, 310-311 (CA7 1993). Novelty as cause is now the path to habeas relief only if the claim qualifies for one of the two narrow Teague exceptions. The statute recognizes this with its twin requirements of retroactivity and previous unavailability.
Engle v. Isaac, supra, and Reed v. Ross, supra, bracket the novelty question. Both cases involved claims grounded in the requirement of proof beyond a reasonable doubt, as does the present case, and one found cause while the other did not.
The defendants in Engle v. Isaac were tried in three unrelated cases in 1975. See 456 U. S., at 112-115. All three cases involved self-defense, the juries were instructed that the defendants had the burden of proof, and none of the defendants objected at trial. See ibid. The Court rejected the claim of novelty as cause. In re Winship, 397 U. S. 358 (1970) had "laid the basis" years before. See Engle, 456 U. S., at 131. Other defendants were making the claim, id., at 131-132, and hence these defendants did not "lack[ ] the tools to construct their constitutional claim." Id., at 133. A contrary precedent does not excuse a default on the ground of "futility." Courts do sometimes reconsider their precedents. See id., at 130; Bousley v. United States, 523 U. S. 614, 623 (1998).
In Reed v. Ross, 468 U. S., at 3, the habeas petitioner sought the benefit of Mullaney v. Wilbur, 421 U. S. 684 (1975) on the burden of proving malice. Mullaney was an application of the principle of Winship. See Reed, supra, at 3. The issue had not surfaced in the courts of the state until years after Ross's appeal. See id., at 18. Only one federal appellate decision supported claims of this type, and that case was readily distinguishable. See id., at 18-19. Most importantly for the present case, Reed distinguished Engle on the ground that Ross's default was pre-Winship rather than post-Winship, not on the ground it was pre-Mullaney. See id., at 19. The case that establishes the general principle on which a claim is based provides the tools to construct it. Specific claims based on the general principle are not "novel" for Engle/Reed, although they are "new" for Teague until they are crystalized into a specific rule. Cf. Sawyer v. Smith, 497 U. S. 227, 236 (1990) (discussing level of generality). Smith v. Murray, 477 U. S., at 537, confirms that a claim is "available" if it has been "percolating." There is no requirement that it has actually been accepted by any court. See also Bousley, 523 U. S., at 622-623, and n. 2.
Applying these precedents to the present case is straightforward. First, we look at availability at the time of the "default." See Engle, 456 U. S., at 131. In successive petition cases, that is the time of the first federal petition. See McCleskey, 499 U. S., at 497. We need not consider whether the relevant time is the filing of that petition or its final disposition, see In re Hill, 113 F. 3d 181, 183 (CA11 1997), because the answer is the same even giving petitioner the benefit of the earlier date.
Claims of the Cage type had not merely been "percolating" at the time Tyler filed his first federal petition. Two cases had been decided by the highest court of his own state, one of them accepting the claim. In State v. Taylor, 410 So. 2d 224, 225, n. 2 (La. 1982), the instruction was nearly identical to that in the present case. Although the court rejected the claim, it did note that the instruction had problems. See id., at 225. Under the "percolating" standard of Engle, Smith, and Bousley, Taylor alone is sufficient to find that the claim was available in 1982, six years before Tyler's first federal petition.
State v. McDaniel, 410 So. 2d 754, 755 (La. 1982), decided a month later, involved a modified instruction. It said "great uncertainty" instead of "grave uncertainty" and "morally uncertain" instead of "not an abiding conviction to a moral certainty." The judge also added a statement about going outside the evidence. Id., at 756. The court granted relief and noted that the error may be "of constitutional dimensions," citing Winship. Ibid.
Taylor and McDaniel can probably be reconciled given the difference in the instructions. Cf. Victor v. Nebraska, 511 U. S. 1, 21 (1994) ("abiding conviction" language "does much to alleviate any concerns"). Whether the cases are inconsistent, as petitioner claims, Brief for Petitioner 12, n. 3, or reconcilable does not matter, however. The important point is that claims of this type were being made and sometimes accepted. See also Dunn v. Perrin, 570 F. 2d 21, 23-24, and n. 1 (CA1 1978) (accepting constitutional challenge to somewhat similar instruction).
Tyler had more than sufficient tools to construct this claim in his first federal petition. He could easily have argued to the federal courts that Taylor was wrongly decided, and the Fifth Circuit did not finally dispose of his case until after Cage. Under the Engle rule, which Congress has now codified for successive petitions, this claim is not cognizable on such a petition.
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