Matthew v. Johnson

Revised February 14, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10990
_____________________

GREG MARVIN MATTHEW

Petitioner - Appellant

v.

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION

Respondent - Appellee

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
January 11, 2000

Before KING, Chief Judge, and REAVLEY and BENAVIDES, Circuit
Judges.

KING, Chief Judge:

Greg Marvin Matthew appeals the district court’s denial of

his petition for a writ of habeas corpus, arguing that the court

erred in ruling that in pleading nolo contendere, he waived his

claim that the State violated his constitutional rights when it

failed to disclose allegedly material exculpatory information.

We affirm.

I. FACTS AND PROCEDURAL BACKGROUND
 On January 26, 1994, Greg Marvin Matthew, having been

accused of raping his step-daughter, pleaded nolo contendere to

the charge of aggravated sexual assault of a child. After the

entry of the plea, the state trial court found Matthew guilty of

aggravated sexual assault of a child and sentenced him to a

sixteen-year term of imprisonment. Matthew subsequently filed a

direct appeal, which was dismissed for lack of jurisdiction.

On February 28, 1995, Matthew filed an application for

habeas relief in state court. He argued that his counsel had

been ineffective and that the State had failed to disclose

exculpatory evidence. The state trial court, in written reasons,

found that Matthew’s counsel was not ineffective but did not make

any specific findings or conclusions regarding Matthew’s claim

that the prosecutor had withheld exculpatory evidence. The Texas

Court of Criminal Appeals denied Matthew’s habeas application

without an evidentiary hearing and without written reasons.

In October, 1995, Matthew filed a petition for a writ of

habeas corpus in federal district court.1 He averred that the

prosecution “failed to disclose two or more exhibits of

exculpatory evidence which would have established [his] innocence

to the charge.” Relying on Brady v. Maryland, 373 U.S. 83

(1963), Matthew argued that “[t]his overt violation rendered

[him] incapable of making a voluntary decision on how to plea[d

1
Matthew initially proceeded pro se but then requested and
was granted appointment of counsel.

2
and] present a viable defense [and] forced [him] into an

involuntary ‘No-Contest’ Plea[].” He further asserted that his

counsel was ineffective. The respondent opposed the petition,

arguing that Matthew’s counsel was not ineffective and that

Matthew, having pleaded nolo contendere, had waived his “Brady”

challenge.

Noting that several circuits had rejected the respondent’s

waiver argument, the magistrate judge to whom the matter was

preliminarily assigned concluded that Matthew’s plea did not

waive his “Brady claim.” The magistrate judge reasoned that the

allegation that the prosecution had withheld evidence, if true,

would affect “the very integrity of the plea process.” The

magistrate judge then ordered that an evidentiary hearing be

held.

Before receiving testimony at the evidentiary hearing, the

magistrate judge admitted into evidence ten exhibits, consisting

of documents that the assistant district attorney (“ADA”) had

received from Child Protective Services (“CPS”). Among these

documents were affidavits and reports describing instances of the

victim denying that she had been sexually abused and asserting

that Matthew “did not do anything to [her] in the past.” Those

statements preceded the victim’s “outcry” of abuse. One

affidavit, completed by the victim’s case worker, refers to a

post-outcry statement by the victim indicating that an episode of

3
sexual abuse had taken place on Christmas.2 The documents also

include a letter from the victim’s mother, case-worker notes and

psychiatric assessments, and medical reports indicating that the

victim showed physical signs of severe sexual abuse.

At the evidentiary hearing, the magistrate judge heard

testimony from the petitioner, the attorney who represented him

at his plea hearing, and the ADA who handled the case for the

State. The magistrate judge also received proffers from five

witnesses offered by the respondent to challenge the materiality

of the undisclosed evidence. The ADA testified that he provided

Matthew’s attorney with a copy of the indictment, the probable

cause affidavit, and a report of a medical examination revealing

findings consistent with “multiple episodes of vaginal

penetration.” He was unable to recall providing Matthew with any

other documents, but he indicated that he would not have turned

over the CPS documents without a court order, which had not been

issued.3 The ADA said he did not consider the withheld documents

to be exculpatory because he viewed the victim’s pre-outcry

denials to be typical of a “delayed outcry” situation.

Matthew’s counsel at the plea hearing testified that he

recalled reviewing the prosecutor’s report, the police report,

2
Matthew’s step-daughter alleged repeated sexual abuse.
The indictment charged Matthew with the sexual assault of a child
on or about April 1, 1993.
3
The district court noted that “C.P.S. files are
confidential under Texas law and their contents are not to be
disclosed absent court order.”

4
the indictment, and a medical report. He also testified that he

had not conducted any additional discovery or investigation. He

stated that Matthew had denied the abuse and had focused on

obtaining the shortest possible sentence.

Matthew testified that his lawyer had shown him only a

medical report and the capias warrant. He said that he had

maintained his innocence to his attorney and, as the record

reflects, throughout the nolo contendere plea colloquy. He

claimed that, after being sentenced, he wrote to CPS and

requested records related to the investigation. He initially

received a medical report, the case worker’s affidavit noting the

accusation of abuse on Christmas, and the affidavit in which the

victim denied that Matthew had “do[ne] anything to [her] in the

past.” Matthew asserted that he was unaware that the victim had

alleged abuse on Christmas and that, had he known of this

information, he would have supplied an alibi placing him

elsewhere at the time. He also indicated that he thought that

CPS had brainwashed his step-daughter, and he insisted that he

would have gone to trial if he had known about the undisclosed

documents.

The parties filed post-evidentiary hearing briefs. The

magistrate judge again rejected the respondent’s argument that

Matthew waived his “Brady claim” by pleading nolo contendere.

Despite characterizing the case against Matthew as strong, he

found that the withheld evidence was material, concluding that

5
had the evidence been disclosed, Matthew would have refused to

plead nolo contendere and insisted on having a trial. The

magistrate judge also found Matthew’s ineffective-assistance-of-

counsel claim to be without merit.

Matthew filed untimely objections to the magistrate’s

report, arguing that the magistrate judge had erred in finding

that his ineffective-assistance-of-counsel claim was without

merit. The respondent filed an untimely motion for an extension

of time within which to file objections to the magistrate’s

report. The district court granted the motion, and the

respondent subsequently filed objections, arguing that the

magistrate judge had applied the wrong standard to determine the

materiality of undisclosed evidence in a guilty or nolo

contendere plea situation and had erred in finding that the

undisclosed evidence was material. The respondent further

averred that the magistrate judge had erred in finding that

Matthew’s nolo contendere plea did not waive his “Brady claim.”

Finally, the respondent argued that the magistrate judge should

not have considered Matthew’s ineffective-assistance-of-counsel

claim and should have held instead that the claim was waived by

his plea.

The district court adopted the magistrate judge’s findings

with regard to the claim of ineffective assistance of counsel but

declined to accept his recommendation with regard to the claim

that the State failed to disclose exculpatory evidence. It

6
characterized as an understatement the magistrate judge’s

description of the case against Matthew as being strong, and

noted that efforts of Matthew’s lawyers were directed at all

times at obtaining plea offers of a sentence acceptable to

Matthew. Based on its reading of the law in this circuit, the

district court held that Matthew’s nolo contendere plea waived

his “Brady claim.” Accordingly, the district court did not

resolve the question whether the undisclosed evidence was

material.

Matthew filed an application for a certificate of probable

cause (“CPC”), arguing only that the district court erred in

finding that his nolo contendere plea waived his “Brady claim.”

He also filed a notice of appeal. The district court denied the

request for a CPC. This court granted a CPC4 to address the

question whether a plea of nolo contendere waives any Brady-based

challenge to the plea.

II. WHETHER MATTHEW’S CLAIM IS TEAGUE-BARRED

This court has not yet resolved whether a nolo contendere or

guilty plea waives a subsequent Brady-based challenge. See

4
Matthew filed his habeas petition prior to the effective
date of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), so that Act’s
provisions do not govern the disposition of his petition. See
Lindh v. Murphy, 521 U.S. 320 (1997). A prisoner whose habeas
petition was filed before April 24, 1996 needs a CPC, instead of
a certificate of appealability, for his appeal to proceed. See
Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997).

7
Barnes v. Lynaugh, 817 F.2d 336, 338 (1987).5 As Matthew points

out, a number of our sister circuits have had occasion to address

the issue he raises, and have generally held that a defendant

pleading guilty may challenge his conviction on the ground that

the State failed to disclose material exculpatory evidence prior

to entry of the plea. See Sanchez v. United States, 50 F.3d 1448

(9th Cir. 1995); United States v. Wright, 43 F.3d 491 (10th Cir.

1994); Tate v. Wood, 963 F.2d 20 (2d Cir. 1992); White v. United

States, 858 F.2d 416 (8th Cir. 1988), cert. denied, 489 U.S. 1029

(1989); Campbell v. Marshall, 769 F.2d 314 (6th Cir. 1985), cert.

denied sub nom., Campbell v. Morris, 475 U.S. 1048 (1986). But

see Smith v. United States, 876 F.2d 655 (8th Cir.) (holding that

a Brady claim did not survive entry of a guilty plea), cert.

denied, 493 U.S. 869 (1989); United States v. Ayala, 690 F. Supp.

1014, 1016 (S.D. Fla. 1988) (stating that a Brady violation does

“not affect the consensual nature of the plea thereby impairing

its validity”); United States v. Wolczik, 480 F. Supp. 1205 (W.D.

Pa. 1979) (“[A] defendant cannot expect to obtain Brady material

for use in a pretrial decision to plead guilty.”). However,

before we may address the merits of Matthew’s claim, we must

determine whether we are barred from providing the relief Matthew

seeks by Teague v. Lane, 489 U.S. 288 (1989).

5
In Barnes, we determined that we did not need to address
issues similar to those Matthew raises because we did not view
the information that was allegedly not disclosed to be Brady
material. See 817 F.2d at 339.

8
 “A threshold question in every habeas case . . . is whether

the court is obligated to apply the Teague rule to the

defendant’s claim.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

In the instant case, the respondent did not raise in its initial

briefs the issue of whether Matthew’s claim is Teague-barred. We

may, however, exercise our discretion and consider a Teague

defense even though the State has implicitly waived it. See

Caspari, 510 U.S. at 389 (“[A] federal court may, but need not,

decline to apply Teague if the State does not argue it.”); Fisher

v. State, 169 F.3d 295, 304-05 (5th Cir. 1999) (applying Teague

despite State’s implicit waiver). We decide to do so here.6

The Teague rule precludes us from applying “new

constitutional rules of criminal procedure . . . to those cases

which have become final before the new rules are announced.”

Teague, 489 U.S. at 310 (plurality opinion). The Supreme Court

has directed that we apply Teague by proceeding in three steps.

See Caspari, 510 U.S. at 390. First, we must determine the date

on which Matthew’s conviction and sentence became final. Next,

we must “[s]urve[y] the legal landscape as it then existed and

determine whether a state court considering [the defendant’s]

claim at the time his conviction became final would have felt

compelled by existing precedent to conclude that the rule [he]

6
Before oral argument in this case, the court directed the
parties to address the question whether Matthew’s petition sought
the application of a new rule of constitutional criminal
procedure such that Teague would counsel against a grant of
habeas relief.

9
seeks was required by the Constitution.” Id. (citations and

internal quotation marks omitted; alterations in original). We

reach the third step only if we find that Matthew’s claim

necessitates a new rule. Under those circumstances, we must

determine that the new rule falls within either of two narrow

exceptions before we may announce it, and apply it to Matthew’s

case. See id.; Penry v. Lynaugh, 492 U.S. 302, 313 (1989).

Matthew entered his plea on January 26, 1994. Although he

attempted to appeal his conviction, his direct appeal was

dismissed on July 18, 1994 because Matthew failed to acquire the

court’s permission before appealing. See Lyon v. State, 872

S.W.2d 732 (Tex. Crim. App. 1994).7 Matthew’s conviction

therefore became final for purposes of Teague on October 17, 1994

– 91 days (the 90th day falling on a Sunday), after his appeal

was dismissed. See 28 U.S.C. § 2101; Caspari, 510 U.S. at 390-

91; Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987); SUP. CT.

R. 13.1, & 30.1. We next turn to the task of surveying the legal

landscape as it existed in October 1994.

A. A New Rule of Criminal Procedure?

An assessment of whether a new rule would be required in

order for Matthew to prevail necessitates an understanding of the

7
Matthew’s direct appeal stated that statements were
coerced and that “Defendant will show that all original
statements by the Plantif [sic] contained information that would
have the Defendant acquited [sic] and these statements and facts
were not brought forth.”

10
propositions Matthew must establish in order to be successful.

Cf. Gray v. Netherland, 518 U.S. 152, 167 (1996) (identifying

propositions that needed to be proved as part of a Teague

analysis). Matthew was charged with sexually assaulting his

step-daughter, and faced a possible prison term of ninety-nine

years if convicted. His attorneys, so the district court found,

directed their efforts at obtaining the best possible plea

bargain. Matthew now seeks federal habeas review of his

conviction based on his nolo contendere plea, and argues that the

State’s failure to disclose statements obtained by CPS from his

step-daughter prior to entry of his plea constitutes a Brady

violation that rendered his plea invalid. To prevail, he would

need to establish that (1) failure to disclose the material at

issue prior to entry of his plea constitutes a Brady violation;

and (2) the antecedent constitutional violation rendered his

guilty plea invalid, and thus his claim is not waived by his

plea.8 We next assess whether a new rule would be required in

order to establish either of these propositions. See id.

8
Alternatively, he would need to establish that the
State’s failure to disclose “material” exculpatory information
prior to entry of his plea violates the Due Process Clause
because it rendered the plea invalid or otherwise
constitutionally suspect. This line of reasoning could include
an argument that the definition of “material” information should
be derived from the Brady v. Maryland line of cases. Because
this line of reasoning, like the first, depends on the finding
that Matthew’s plea was invalid, any conclusions we draw with
respect to the legal landscape regarding the validity of pleas
would apply to this alternative reasoning.

11
 1. A Brady Violation?

Under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor

has a duty to disclose evidence favorable to a defendant when

that evidence is material to either guilt or punishment. See 373

U.S. at 87. The Supreme Court has not as yet ruled on whether a

prosecutor’s failure to disclose material exculpatory information

prior to entry of a guilty plea9 violates the U.S. Constitution.

A review of the Court’s Brady v. Maryland line of cases, however,

tends to counter, rather than support, the proposition Matthew

would need to establish in order to prevail.

The prosecutor’s duty to disclose material exculpatory

information is based in the Due Process Clause of the Fourteenth

Amendment, and exists to ensure that the accused receives a fair

trial, i.e., that an impartial party’s assessment of the

defendant’s guilt is based on all the available evidence. See

Mooney v. Holohan, 294 U.S. 103, 112 (1935) (describing the due

process requirement as “a requirement that cannot be deemed to be

satisfied . . . if a State has contrived a conviction through the

pretense of a trial which in truth is but used as a means of

depriving a defendant of liberty through a deliberate deception

of court and jury by the presentation of testimony known to be

9
Under Texas law, a plea of nolo contendere has the same
legal effect as a plea of guilty, with an exception not
applicable here. See TEX. CODE CRIM. P. ANN. art. 27.02(5). In
any event, we may apply law regarding guilty pleas to pleas of
nolo contendere. See Carter v. Collins, 918 F.2d 1198, 1200 n.1
(5th Cir. 1990).

12
perjured”). As the Brady Court noted, “[t]he principle of Mooney

v. Holohan is not punishment of society for misdeeds of a

prosecutor but avoidance of an unfair trial to the accused. . . .

A prosecution that withholds evidence on demand of an accused

which, if made available, would tend to exculpate him or reduce

the penalty helps shape a trial that bears heavily on defendant.”

Brady v. Maryland, 373 U.S. at 87-88.

The subsequent inclusion of impeachment evidence under the

Brady rule, see United States v. Bagley, 473 U.S. 667, 676

(1985); Giglio v. United States, 405 U.S. 150, 154 (1972), was

also based on the potential effect of undisclosed information on

a jury’s determination of guilt. See id. (citing in support

Napue v. Illinois, 360 U.S. 264, 269 (1959)(“The jury’s estimate

of the truthfulness and reliability of a given witness may well

be determinative of guilt or innocence . . . .”)). Thus, as was

the case in Brady v. Maryland, 373 U.S. at 87-88, the Court’s

concern focused on ensuring that jury or judge determinations of

guilt beyond a reasonable doubt were not contrived through a

prosecutor’s withholding of material information favorable to the

defendant.

The Court’s definition of “material information” also

reflects the Brady rule’s purpose of ensuring a fair trial. The

state’s obligation to disclose favorable information extends only

to information that is material. See Bagley, 473 U.S. at 674-75.

“[T]he prosecutor is not required to deliver his entire file to

13
defense counsel, but only to disclose evidence favorable to the

accused that, if suppressed, would deprive the defendant of a

fair trial . . . .” Id. at 675 (footnote omitted).10 An earlier

argument that the materiality test should be defined in terms of

the defendant’s ability to prepare for trial (rather than in

terms of factfinders’ assessments of guilt) was explicitly

rejected by the Court in United States v. Agurs, 427 U.S. 97

(1976). As the Court explained, to base the materiality

requirement on the effect of the undisclosed information on the

defendant’s ability to prepare for trial would be unacceptable in

part because such a standard would “necessarily encompass

incriminating evidence as well as exculpatory evidence, since

knowledge of the prosecutor’s entire case would always be useful

in planning the defense.” Id. at 112 n.20.11 Because the

state’s duty extended only to exculpatory information, defining

10
In subsequent cases, the Court has clarified the
materiality requirement, and in so doing has underscored the
fundamental tie to the concept of a fair trial. See, e.g., Kyles
v. Whitley, 514 U.S. 419, 434 (1995) (“The question is not
whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.”).
11
Issues related to defense strategies and other pretrial
decisions were also touched upon in Bagley, 473 U.S. at 682-83.
The Bagley Court noted that any influences that nondisclosure
might have on pretrial decisions could be assessed in the same
manner as other nondisclosures, i.e., via the materiality test
set forth in that case. Under that test, the court must assess
whether there was a “reasonable probability” that had disclosure
occurred, the outcome of the trial would have been different.
See Bagley, 473 U.S. at 682-83, 684 (emphasis added).

14
the materiality requirement in terms of defense strategies would

be at odds with the scope and purpose of the Brady rule.

The Brady rule’s focus on protecting the integrity of

trials suggests that where no trial is to occur, there may be no

constitutional violation. While describing the purpose of the

Brady rule and of the rule’s materiality requirement, the Bagley

Court noted that

unless the omission deprived the defendant of a fair trial,
there was no constitutional violation requiring that the
verdict be set aside; and absent a constitutional violation,
there was no breach of the prosecutor’s constitutional duty
to disclose. . . .
. . . But to reiterate a critical point, the prosecutor
will not have violated his constitutional duty of disclosure
unless his omission is of sufficient significance to result
in the denial of the defendant’s right to a fair trial.

Bagley, 473 U.S. at 675-76 (quoting United States v. Agurs, 427

U.S. 97, 108 (1976)); see also id. at 678 (“[S]uppression of

evidence amounts to a constitutional violation only if it

deprives the defendant of a fair trial.”).12 Because a Brady

violation is defined in terms of the potential effects of

undisclosed information on a judge’s or jury’s assessment of

12
The Court has recently restated the distinction between
a Brady violation and a failure to disclose information:

[T]he term “Brady violation” is sometimes used to refer to
any breach of the broad obligation to disclose exculpatory
evidence – that is, to any suppression of so-called “Brady
material”– although, strictly speaking, there is never a
real “Brady violation” unless the nondisclosure was so
serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.

Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999) (footnotes
omitted).

15
guilt, it follows that the failure of a prosecutor to disclose

exculpatory information to an individual waiving his right to

trial is not a constitutional violation.13 In waiving his or her

13
Some Court opinions contain language that appears to
broaden the reach of Brady v. Maryland to encompass all
“proceedings” and “pretrial” decisions. See, e.g., United States
v. Bagley, 473 U.S. 667, 682 (1985) (“The evidence is material
only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different.”); id. at 682-83 (“[T]he more specifically
the defense requests certain evidence, . . . the more reasonable
it is for the defense to assume from the nondisclosure that the
evidence does not exist, and to make pretrial and trial decisions
on the basis of that assumption.”). These statements, however,
do not dictate the conclusion that the disclosure of Brady
material is necessary to protect the due process rights of those
who plead guilty.
Reference to pretrial decisions was no doubt triggered by
arguments that reliance on the prosecutor’s incomplete responses
to a request for Brady material could cause defense counsel to
“abandon lines of independent investigation, defenses, or trial
strategies that it otherwise would have pursued.” Bagley, 473
U.S. at 682. Thus, it is highly uncertain whether included
within “pretrial decisions” are decisions regarding whether or
not to plead guilty. Reference to a “proceeding” in the Bagley
opinion had as its basis the Court’s formulation of the
“prejudice” component of its competency-of-counsel test in
Strickland v. Washington, 466 U.S. 668, 694 (1984). See Bagley,
473 U.S. at 682 (“And in Strickland v. Washington, the Court held
that a new trial must be granted when evidence is not introduced
because of the incompetence of counsel only if ‘there is a
reasonable probability that, but for the counsel’s unprofessional
errors, the result of the proceeding would be different.’”
(citation omitted)(quoting Strickland, 466 U.S. at 694)). That
the Strickland Court’s formulation contemplated a proceeding at
which a factfinder was responsible for determining a defendant’s
guilt or innocence is demonstrated by reading on: “In making the
determination whether the specified errors resulted in the
required prejudice, a court should presume, absent challenge to
the judgment on grounds of evidentiary insufficiency, that the
judge or jury acted according to law.” Strickland, 466 U.S. at
694 (emphasis added). Again, a court reviewing these statements
would not feel compelled to conclude that the U.S. Constitution
requires that an individual pleading guilty is entitled to the
same Brady-based protection as an individual pleading not guilty.

16
right to trial, the defendant eliminates the opportunity for a

prosecutor to “contrive[] a conviction through the pretense of a

trial which in truth is but used as a means of depriving a

defendant of liberty through a deliberate deception of court and

jury . . . .” Mooney, 294 U.S. at 112. Instead, conviction is

supported by the defendant’s plea.

In light of the Court’s Brady v. Maryland line of cases, it

is apparent to us that, at a minimum, a state court would not

have felt compelled to hold that the prosecutor’s failure to

supply Matthew with the CPS documents prior to entry of his plea

constituted a Brady violation. Matthew, in order to establish

that a prosecutor’s failure to disclose exculpatory information

prior to entry of a guilty plea is a Brady violation, would

require adoption of a new rule – one that seeks to protect a

defendant’s own decision making regarding the costs and benefits

of pleading and of going to trial.

Our conclusion that Matthew seeks a new rule is not at odds

with cases he cites in support of his arguments. By October

1994, a number of court opinions had suggested that pleas could

be collaterally attacked on grounds that the state failed to

disclose material exculpatory information. See, e.g., Tate v.

Wood, 963 F.2d 20 (2d Cir. 1992); White v. United States, 858

F.2d 416 (8th Cir. 1988); Miller v. Angliker, 848 F.2d 1312 (2d

Cir. 1988); Campbell v. Marshall, 769 F.2d 314 (6th Cir. 1985);

Fambo v. Smith, 433 F. Supp. 590 (W.D.N.Y.), aff’d, 565 F.2d 233

17
(2d Cir. 1977). The Sixth Circuit assumed for purposes of its

opinion that a Brady violation had occurred, see Campbell, 769

F.2d at 315, but subsequently noted that “there is no authority

within our knowledge holding that suppression of Brady material

prior to trial amounts to a deprivation of due process.” Id. at

322. The Eighth Circuit followed Campbell’s approach. See

White, 858 F.2d at 422. Thus, neither court found that a

prosecutor’s failure to disclose exculpatory information prior to

entry of a plea was a violation of the U.S. Constitution.

The Second Circuit’s approach in Miller and Tate links

directly nondisclosure and the Due Process Clause. However, in

light of the Court’s holdings, the Second Circuit’s approach

would appear to adopt a new rule. The Miller court adapted the

Supreme Court’s materiality test in order for it to be applicable

to the plea context. See 848 F.2d at 1322. Under Miller’s

“objective” test, information is material “if there is a

reasonable probability that but for the withholding of the

information the accused would not have entered [counsel’s]

recommended plea but would have insisted on going to full trial.”

Id. The emphasis in this test is not on the influence the

undisclosed information possibly would have had on the fairness

of a trial – the focus of Brady rule’s materiality test – but

instead on the accused’s decision making process.14 The Miller

14
Compare Miller’s test with the Court’s description in
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), of how the two-part
test laid out in Strickland v. Washington, 466 U.S. 668 (1984),

18
court’s test, in defining “material” information in a manner

separated from both trial outcomes and counsel’s recommendation,

arguably creates a due process right where none previously

existed.

State courts’ decisions, see Caspari, 510 U.S. at 395 (“[I]n

the Teague analysis the reasonable views of state courts are

entitled to consideration along with those of federal courts.”),

were also not such that a state court reviewing Matthew’s claim

would have felt compelled to decide that the rule he seeks is

required by the U.S. Constitution. See, e.g., State v. Simons,

731 P.2d 797 (Idaho Ct. App. 1987) (finding failure to disclose

should be applied to challenges to guilty pleas raising claims of
ineffectiveness of counsel. Under the Hill test, a petitioner
must show that (1) his counsel’s advice was not “within the range
of competence demanded of attorneys in criminal cases,” and (2)
that “there is a reasonable probability that, but for the
counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. Particularly relevant is the
Court’s description of how the second “prejudice” portion of the
Strickland test would be applied in cases involving guilty pleas:

In many guilty plea cases, the “prejudice” inquiry will
closely resemble the inquiry engaged in by courts reviewing
ineffective-assistance challenges to convictions obtained
through a trial. For example, where the alleged error of
counsel is a failure to investigate or discover potentially
exculpatory evidence, the determination whether the error
“prejudiced” the defendant by causing him to plead guilty
rather than go to trial will depend on the likelihood that
discovery of the evidence would have led counsel to change
his recommendation as to the plea. This assessment, in
turn, will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a trial. .
. [T]hese predictions of the outcome at a possible trial,
where necessary, should be made objectively . . . .

Hill, 474 U.S. at 59 (emphasis added). Thus, in the Hill test, a
tie to trial outcomes is maintained.

19
material exculpatory information could render counsel

ineffective); Lee v. State, 573 S.W.2d 131 (Mo. Ct. App. 1978)

(holding, based on the absence of contrary law, that failure to

disclose material exculpatory information entitled defendant to a

withdrawal of his plea); Ex parte Lewis, 587 S.W.2d 697 (Tex.

Crim. App. 1979) (holding that a prosecutor’s duty to disclose

favorable information extends to defendants pleading guilty).

But see Schmidt v. State, 647 P.2d 796 (Idaho Ct. App. 1982)

(holding defendant who pleads guilty waives his right to

disclosure of evidence by the prosecutor). For example, although

the Texas Court of Criminal Appeals’ 2-1 decision in Lewis would

appear to dictate at least a portion of the result that Matthew

seeks, it is not clear from the opinion whether the duty-to-

disclose holding was based in the U.S. Constitution, or in

Article 2.01 of the Texas Code of Criminal Procedure. Article

2.01 sets forth the duties of district attorneys. The last

sentence of the article, added in 1965, states that “[t]hey shall

not suppress facts or secrete witnesses capable of establishing

the innocence of the accused.” The absence in Lewis of any

materiality-based limitation on the duty to disclose suggests

that the U.S. Constitution was not the basis for the opinion.

On the basis of our review of the legal landscape existing

in October 1994, we cannot conclude that a state court would have

felt compelled to decide that a prosecutor’s failure to disclose

exculpatory information prior to entry of a guilty or nolo

20
contendere plea was a Brady violation, or otherwise a violation

of the Due Process Clause. We turn next to a consideration of

whether a state court would have seen the nondisclosure of which

Matthew complains as rendering his plea invalid.15

2. An Invalid Plea?

It has long been the case that a valid guilty plea bars

habeas review of most non-jurisdictional claims alleging

antecedent violations of constitutional rights. See Tollett v.

Henderson, 411 U.S. 258, 267 (1973); Barnes v. Lynaugh, 817 F.2d

336, 338 (5th Cir. 1987). Among claims not barred are those that

challenge “the very power of the State to bring the defendant

into court to answer the charge against him,” Blackledge v.

Perry, 417 U.S. 21, 30 (1974), and those that challenge the

validity of the guilty plea itself. See Hill v. Lockhart, 474

U.S. 52, 58 (1985); Haring v. Prosise, 462 U.S. 306, 320 (1983);

Tollett, 411 U.S. at 267; Barnes, 817 F.2d at 338. A plea not

voluntarily and intelligently made has been obtained in violation

of due process and is void. See McCarthy v. United States, 394

15
Although we conclude that Matthew’s claim requires a new
rule with regard to the first proposition he asserts – that the
nondisclosure was a Brady violation – we think we must also
assess whether Matthew’s second proposition – that the
nondisclosure rendered his plea invalid – would also require a
new rule. This is due primarily to the alternative argument set
forth in note 8 supra. Even if the nondisclosure is not a Brady
violation, it may be argued (and Matthew appears on occasion to
be arguing) that it made it impossible for Matthew to enter a
knowing and intelligent plea.

21
U.S. 459, 466 (1969).

Matthew’s claim does not challenge the power of the State to

bring him into court. Thus, the only means available for

challenging his conviction is to claim that his plea is invalid,

i.e., it was not knowingly and voluntarily entered into. See

Mabry v. Johnson, 467 U.S. 504, 508 (1984) (“It is well-settled

that a voluntary and intelligent plea of guilty made by an

accused person, who has been advised by competent counsel, may

not be collaterally attacked.”). We must therefore determine

whether a state court in October 1994 would have felt compelled

to rule that Matthew’s due process rights were violated because

of the failure to disclose the CPS documents, whether or not that

failure amounts to a Brady violation. We again find that, given

the legal landscape in existence at the time of Matthew’s

conviction, a state court would not have felt compelled to hold

in Matthew’s favor, and thus that a new rule would be required.

The test for determining a guilty plea’s validity is

“‘whether the plea represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant.’”

Hill, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S.

25, 31 (1970)). Courts assessing whether a defendant’s plea is

valid look to “all of the relevant circumstances surrounding it”,

Brady v. United States, 397 U.S. at 749, and may consider such

22
factors as whether there is evidence of factual guilt.16

Although the Court’s opinions have often used both

“voluntary” and “intelligent” to describe various characteristics

of constitutionally valid guilty pleas,17 several conditions

appear necessary. The defendant pleading guilty must be

competent, see Brady v. United States, 397 U.S. at 756, and must

have notice of the nature of the charges against him, see

Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976); Smith v.

O’Grady, 312 U.S. 329, 334 (1941). The plea must be entered

“voluntarily,” i.e., not be the product of “actual or threatened

physical harm, or . . . mental coercion overbearing the will of

the defendant” or of state-induced emotions so intense that the

defendant was rendered unable to weigh rationally his options

with the help of counsel. Brady v. United States, 397 U.S. at

16
Although courts may consider whether a factual basis for
a guilty plea exists in their assessments of its validity, it has
generally been held that the Constitution does not require that
they ensure such a basis exists. See, e.g., Higgason v. Clark,
984 F.2d 203, 208 (7th Cir. 1993) (“‘Strong evidence of guilt’
may suffice to sustain a conviction on an Alford plea, and may be
essential under [FED. R. CRIM. P.] 11, but it is not necessary to
comply with the Constitution.” (quoting Alford, 400 U.S. at 31)).
17
Compare Brady v. United States, 397 U.S. 742, 756 (1970)
(describing a plea intelligently made as one that has been
entered by a defendant with notice of the nature of the charges
against him), with Marshall v. Lonberger, 459 U.S. 422, 436
(1983) (describing the same characteristic as belonging to a
voluntary plea). The Court has also described a voluntary plea
in terms of an intelligent admission of guilt. See Henderson v.
Morgan, 426 U.S. 637, 645 n.13 (1976). As a result, we
concentrate on the characteristics of valid guilty pleas, and do
not attempt to link those characteristics to making a plea
“voluntary” or “intelligent.”

23
750; Machibroda v. United States, 368 U.S. 487, 493 (1962) (“A

guilty plea, if induced by promises or threats which deprive it

of the character of a voluntary act, is void.”); Miller v.

Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988). The defendant must

also understand the consequences of his plea, including the

nature of the constitutional protection he is waiving.

Henderson, 426 U.S. at 645 n.13; Brady v. United States, 397 U.S.

at 755; Machibroda, 368 U.S. at 493 (“Out of just consideration

for persons accused of crime, courts are careful that a plea of

guilty shall not be accepted unless made voluntarily after proper

advice and with full understanding of the consequences.”)

(internal quotations and citation omitted); Miller, 848 F.2d at

1320. Finally, the defendant must have available the advice of

competent counsel. Tollett, 411 U.S. at 267-68; Brady v. United

States, 397 U.S. at 756; McMann v. Richardson, 397 U.S. 759, 771

& n.14 (1970). The advice of competent counsel exists as a

safeguard to ensure that pleas are voluntarily and intelligently

made. Cf. Henderson, 426 U.S. at 647 (“[I]t may be appropriate

to presume that in most cases defense counsel routinely explain

the nature of the offense in sufficient detail to give the

accused notice of what he is being asked to admit.”); Brady v.

United States, 397 U.S. at 754 (suggesting that coercive actions

on the part of the state could be dissipated by counsel).

Matthew’s claim is not that the state threatened him, or

that the state made and then broke promises made to him. He does

24
not allege that he was incompetent.18 He does not suggest that

he did not understand the nature of the charges against him or of

the constitutional protection he was waiving. Matthew does not

challenge the factual basis for his plea.19 He no longer has a

claim of ineffective counsel. In short, Matthew does not suggest

that his plea lacks any of the characteristics that the Court has

held make up a voluntary and intelligent plea.

On this alone, a state court reviewing Matthew’s conviction

could determine that his plea was valid. Moreover, it would be

supported in this conclusion by the fact that Matthew stated at

his hearing that his plea was freely and voluntarily made, and

that he understood the nature of the charges against him and the

nature of the constitutional rights he was waiving. These

statements act to create a presumption that in fact the plea is

valid. See Blackledge v. Allison, 431 U.S. 63, 73-74

(1977)(“These cases do not in the least reduce the force of the

original plea hearing. For the representations of the defendant,

18
In Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim. App.
1979), the information not provided to the trial attorney was
characterized by the court as raising questions of “the
applicant’s sanity at the time of the alleged offense, and of his
competency to stand trial.” 587 S.W.2d at 700. It has long been
held that a conviction of a legally incompetent accused is
invalid, see Bishop v. United States, 350 U.S. 961 (1956), and
that a guilty plea is valid only if made by a legally competent
individual.
19
Texas law requires that “in no event shall a person
charged be convicted upon his plea without sufficient evidence to
support the same.” TEX. CODE CRIM. P. ANN. art. 1.15 (West 1991).
As is allowed under article 1.15, Matthew consented to the
stipulation of evidence against him.

25
his lawyer, and the prosecutor at such a hearing, as well as any

findings made by the judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceedings.

Solemn declarations in open court carry a strong presumption of

verity.”).

Matthew’s argument reduces to one based on the assessment

that had he had the undisclosed information, he would have made a

different decision, i.e., had he known of the documents and their

contents, he would, as he stated in his evidentiary hearing,

“have rolled the dice and risked going to jail for ninety-nine

years instead of pleading nolo to a sixteen-year plea bargain.”

The question, therefore, is whether a state court would have felt

compelled by existing law to hold that this made Matthew’s plea

invalid.

We conclude that the answer to this question is “no.” A

state court reviewing Brady v. United States, one of the more

important cases setting forth the requirements of valid guilty

pleas, would find that the Court rejected an argument very

similar to Matthew’s. See 397 U.S. at 750 (“[T]h[e] assumption

[that the accused would not have pleaded guilty except for the

death penalty provision] merely identifies the penalty provision

as a “but for” cause of his plea. That the statute caused the

plea in this sense does not necessarily prove that the plea was

coerced and invalid as an involuntary act.”). From this

language, it would seem that Matthew must do more than claim that

26
the nondisclosure was the “but for” cause of his plea.

To gain an understanding of what more may be required to

show the plea is “invalid as an involuntary act,” the state court

would undoubtedly turn to cases holding that a plea does not

preclude collateral attack on grounds that the state failed to

disclose favorable information. See, e.g., Tate v. Wood, 963

F.2d 20 (2d Cir. 1992); White v. United States, 858 F.2d 416 (8th

Cir. 1988); Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988);

Campbell v. Marshall, 769 F.2d 314 (6th Cir. 1985); Fambo v.

Smith, 433 F. Supp. 590 (W.D.N.Y.), aff’d, 565 F.2d 233 (2d Cir.

1977).20 These opinions, however, would provide little guidance.

In most instances, the state court would find language noting

that the undisclosed information must be the but for cause of the

plea, see, e.g., Tate, 963 F.2d at 24 (“The test of materiality

in the context of a plea is whether there is a reasonable

probability that but for the failure to produce such information

the defendant would not have entered the plea but instead would

have insisted on going to trial.” (citing Miller, 848 F.2d at

1322)); Campbell, 769 F.2d at 324 (“Certainly the knowledge of

20
In reviewing the legal landscape, the state court would
also find a number of decisions holding that a guilty plea waives
a Brady-based challenge. See Smith v. United States, 876 F.2d
655 (8th Cir.) (holding that a Brady claim did not survive entry
of a guilty plea), cert. denied, 493 U.S. 869 (1989); United
States v. Ayala, 690 F. Supp. 1014, 1016 (S.D. Fla. 1988)
(stating that a Brady violation does “not affect the consensual
nature of the plea thereby impairing its validity”); United
States v. Wolczik, 480 F. Supp. 1205 (W.D. Pa. 1979) (“[A]
defendant cannot expect to obtain Brady material for use in a
pretrial decision to plead guilty.”).

27
[the undisclosed information] was important to Campbell and his

attorney, but we cannot say it would have been controlling in the

decision whether to plead.”), but little suggesting what a

defendant must show in addition to demonstrate involuntariness.

Several courts’ opinions seem to acknowledge that their analysis

required extension of the definition of a valid plea. See

Miller, 848 F.2d at 1320 (“[E]ven a guilty plea that was

‘knowing’ and ‘intelligent’ may be vulnerable to challenge if it

was entered without knowledge of material evidence withheld by

the prosecution.”); Campbell, 769 F.2d at 318 (“The question then

becomes whether this nondisclosure renders involuntary Campbell’s

otherwise voluntary plea, given without knowledge of this

evidence.”); id. at 321 (“We believe that in Tollett and the

Brady Trilogy the Supreme Court did not intend to insulate all

misconduct of constitutional proportions from judicial scrutiny

solely because that misconduct was followed by a plea which

otherwise passes constitutional muster as knowing and

intelligent.”).21 Thus, rather that indicating how a defendant

may show his plea was made involuntary by the undisclosed

information, courts have simply added to the requirements of a

valid plea by suggesting that such a plea must be made with all

“material” exculpatory evidence held by the prosecution.

21
The “Brady Trilogy” refers to three “guilty plea” cases
the Supreme Court decided on the same day: Brady v. United
States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759
(1970); and Parker v. North Carolina, 397 U.S. 790 (1970).

28
 The state court reviewing these cases also would be

confronted with reasoning supporting their holdings that is at

odds with Supreme Court opinions. For example, one reason given

for holding that a defendant pleading guilty may attack the plea

claiming nondisclosure is that courts cannot “satisfy themselves

that pleas of guilty are voluntarily and intelligently made by

competent defendants with adequate advice of counsel and that

there is nothing to question the accuracy and reliability of the

defendants’ admissions that they committed the crimes with which

they are charged,” Brady v. United States, 397 U.S. at 758,

without material exculpatory evidence before them. See Fambo v.

Smith, 433 F. Supp. 590, 599 (W.D.N.Y. 1977). That courts may be

benefitted by a review of exculpatory information in discharging

their duties would be relevant only if those duties included

ascertaining the nature of the information on which the guilty

plea was based, and weighing available evidence to determine

whether there was a factual basis to support the plea.22 On

22
What courts are required to do before accepting a guilty
plea has been laid out in the Federal Rules, and in a line of
cases beginning with Boykin v. Alabama, 395 U.S. 238 (1969).
Boykin requires that defendants have a hearing prior to entry of
the plea, at which there needs to be an affirmative showing that
the decision to plead guilty was voluntarily and intelligently
made. Federal courts must determine that the plea is voluntary,
see FED. R. CRIM. P. 11(d), advise defendants of their rights and
determine that the defendant understands the nature of the charge
and the effects of their plea, see FED. R. CRIM. P. 11(c), and
ascertain sufficient facts to support entry of judgment on the
basis of a guilty plea. See FED. R. CRIM. P. 11(f). Several
states, including Texas, provide similar protections. See, e.g.,
TEX. CODE CRIM. P. ANN. arts. 1.13, 1.14, & 1.15. These types of
protections attempt to ensure that a defendant’s plea is

29
these points, the Court’s description of the allegations in Hill

is illuminating:

Here petitioner does not contend that his plea was
“involuntary” or “unintelligent” simply because the State
through its officials failed to supply him with information
about his parole eligibility date. We have never held that
the United States Constitution requires the State to furnish
a defendant with information about parole eligibility in
order for the defendant’s plea of guilty to be voluntary,
and indeed such a constitutional requirement would be
inconsistent with the current rules of procedure governing
the entry of guilty pleas in the federal courts. See Fed.
Rule Crim. Proc. 11(c).

474 U.S. at 56. Rule 11(c) also says nothing about the court

needing to ascertain whether the state provided the defendant

with access to material exculpatory information, or on what

information the defendant’s guilty plea was based. Rule 11(f)

also does not require a weighing of the evidence.23 In general,

state courts are not required by the Constitution to ensure that

voluntary and intelligent, and that he is not “in the position of
pleading voluntarily with an understanding of the nature of the
charge but without realizing that his conduct does not actually
fall within the charge.” FED. R. CRIM. P. 11, advisory committee
notes (1966 Amendments).
23
Under Rule 11(f), the court may use any means
appropriate, see FED. R. CRIM. P. 11 advisory committee note (1974
Amendments), to determine “that the conduct which the defendant
admits constitutes the offense charged in the indictment or
information or an offense included therein to which the defendant
has pleaded guilty.” FED. R. CRIM. P. 11 advisory committee notes
(1966 Amendments). The Rule does not require that the court
“weigh evidence to assess whether it is even more likely than not
that the defendant is guilty.” United States v. Maher, 108 F.3d
1513, 1524 (2d Cir. 1997); see also id. (“Indeed, when the court
considers a plea of guilty prior to trial, it often has no actual
evidence to assess.”). In fact, in cases involving nolo
contendere pleas, Rule 11(f) does not require courts to ascertain
whether a factual basis for the plea exists. See FED. R. CRIM. P.
11(f).

30
a factual basis for a guilty plea even exists. See, e.g.,

Higgason v. Clark, 984 F.2d 203, 207-08 (7th Cir. 1993); Smith v.

McCotter, 786 F.2d 697, 702 (5th Cir. 1986) (“State courts are

under no constitutional duty to establish a factual basis for the

guilty plea prior to its acceptance . . . .”); Wallace v. Turner,

695 F.2d 545, 548 (11th Cir. 1983) (holding that the Due Process

Clause does not impose a constitutional duty on state trial

judges to ascertain a factual basis before accepting a plea of

guilty or nolo contendere that is not accompanied by a claim of

innocence); Wabasha v. Solem, 694 F.2d 155, 157 (8th Cir. 1982)

(noting that factual basis requirement comes from the Federal

Rules, not the Constitution); cf. McCarthy v. United States, 394

U.S. 459, 465 (1969) (noting that the Rule 11 procedure “has not

been held to be constitutionally mandated”).

Even more problematic is reasoning based on the Court’s

observation in Brady v. United States, 397 U.S. at 756, that the

decision to plead guilty is often heavily influenced by a

defendant’s appraisal of the prosecutor’s case. See, e.g.,

Miller, 848 F.2d at 1320. This observation, although undoubtedly

applicable to a large number of defendants, may be seen as

rather weak support for holdings that allow defendants to

challenge their pleas on grounds that the prosecution failed to

provide them with exculpatory information it held. The Court has

explicitly recognized that the decision whether to plead guilty

or go to trial is one made under circumstances of incomplete, and

31
often inaccurate, information. See, e.g., McMann, 397 U.S. at

769 (“[T]he decision to plead guilty before the evidence is in

frequently involves the making of difficult judgments. All the

pertinent facts normally cannot be known unless witnesses are

examined and cross-examined in court. Even then the truth will

often be in dispute.”). Mistakes in calculating the strength of

the state’s case have been declared insufficient to render the

plea unintelligent or involuntary. See Brady v. United States,

397 U.S. at 757 (“A defendant is not entitled to withdraw his

plea merely because he discovers long after the plea has been

accepted that his calculus misapprehended the quality of the

State’s case . . . .”). State action leading a counseled

defendant to perceive he has a weak case has been held

insufficient to render a resultant guilty plea invalid. See,

e.g., McMann, 397 U.S. at 771 (holding that a defendant alleging

that he pleaded guilty solely because of a prior coerced

confession was not entitled to habeas review).

The state court would also be faced with a basic problem: If

it were the case that defendants assessing whether to plead

guilty must be given an opportunity to weigh the state’s case in

order to make a voluntary and intelligent decision, requiring

that “material” exculpatory information be provided prior to

entry of a guilty plea would not achieve the objective. As the

Court noted in Agurs, 427 U.S. at 112, Brady information would

provide only part of the picture. Without all of the state’s

32
inculpatory evidence, the defendant could not realistically

assess the state’s case against him. Thus, the rule Matthew

seeks may be seen as falling short in achieving its intended

results.

In light of our survey of the legal landscape, we again find

that Matthew requires a new rule in order to prevail.24 As a

result, we turn next to an assessment of whether the new rules

fall into either of the exceptions recognized by the Court. If

they do, we may announce them, and apply them to Matthew’s case.

Penry v. Lynaugh, 492 U.S. 302, 313 (1989).

B. Exceptions to the Nonretroactivity Principle

The Teague Court identified two exceptions to the

nonretroactivity principle. Under the first exception, a new

rule “should be applied retroactively if it places ‘certain kinds

of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.’” Teague v. Lane,

489 U.S. 288, 311 (1989) (plurality opinion) (quoting Mackey v.

24
We are aware of the Court’s statements in Bousley v.
United States, 523 U.S. 614 (1998) that appear to indicate that
Teague is not applicable to Matthew’s claim. See 523 U.S. at 620
(“The only constitutional claim made here is that petitioner’s
guilty plea was not knowing and intelligent. There is surely
nothing new about this principle . . . .”). We do not take these
statements to mean that Teague is inapplicable to any case
involving a claim that a guilty plea is invalid. Teague’s new-
rule doctrine “would be meaningless if applied at this level of
generality.” Sawyer v. Smith, 497 U.S. 227, 236 (1990)(rejecting
petitioner’s argument that Caldwell v. Mississippi, 472 U.S. 320
(1985), “was dictated by the principle of reliability in capital
sentencing”).

33
United States, 401 U.S. 667, 692 (1971)(Harlan, J., concurring in

part and dissenting in part)). This exception, as Matthew notes,

is not applicable to his case.

Under the second exception, a new rule should be applied

retroactively if it is a “‘watershed rule[] of criminal

procedure’ implicating the fundamental fairness and accuracy of

the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495

(1990). The Teague Court limited the scope of the second

exception “to those new procedures without which the likelihood

of an accurate conviction is seriously diminished,” noting that

it was “unlikely that many such components of basic due process

have yet to emerge.” Teague, 489 U.S. at 313.

Matthew argues strenuously that, if we were to find that new

rules would be required, those rules would fall under the second

exception. Although we in no way condone the purposeful

withholding of information in order to elicit a guilty plea from

a defendant, we cannot agree that the rules Matthew seeks to have

applied to his case fall within Teague’s second exception. In

light of the existing protections afforded individuals pleading

guilty or nolo contendere, we doubt that new rules allowing

individuals to challenge the validity of their pleas on grounds

that the state failed to supply them with exculpatory information

prior to entry of their plea will seriously enhance the accuracy

of convictions. Moreover, we do not see the new rules as on par

with a defendant’s right to be represented by counsel in all

34
criminal trials for serious offenses, which the Court in Saffle

v. Parks viewed as the paradigmatic example of a rule falling

within the second exception. See 494 U.S. at 495.

III. CONCLUSION

For the foregoing reasons, we find that the nonretroactivity

rule announced in Teague v. Lane prohibits us from granting the

relief that Matthew seeks. As a result, we must affirm the

district court’s denial of Matthew’s petition for a writ of

habeas corpus.

AFFIRMED.

35