concurring in the judgment:
The majority today announces a new rule of Virginia state law — that the “vileness” predicate may be met in sentencing a capital defendant to death irrespective of whether the defendant observed that the victim was armed and resisting at the time the defendant fired the final shot, so long as the defendant inflicts a number of wounds and there is a lapse of time between the first wound and the wound that ultimately causes the death. Because I do not believe that the federal judiciary should announce a new rule of state criminal law when the state’s highest court has indicated that it would not announce the same rule, I cannot join Part II of the majority opinion. However, because Barnes’ habeas counsel has failed to present affirmative evidence that Barnes may have seen the victim drawing a gun, Barnes has not borne his burden of showing a reasonable probability that the outcome of his sentencing proceeding would have been different had the prosecution disclosed the location of the victim’s gun. Therefore, although I do not agree with the majority’s statement as to what constitutes proof of vileness, I concur in the result reached by the majority in Part II.
A. Barnes’ Bagley Claim,:1 The Majority Opinion.
The majority states that “Virginia law renders a victim’s mere possession of a firearm irrelevant to whether an aggravated battery was committed.” Op. at 977. While strictly speaking, that is true where mere possession alone of a firearm is concerned, see R. Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871, cert. denied, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990), the inference drawn by the majority — that a victim’s brandishing of a weapon to resist a defendant is also irrelevant — is not a correct statement of Virginia law.2 Rather, Virginia courts have held only that the victim’s mere possession of a firearm is irrelevant where a defendant is not threatened by the victim’s firearm. See R. Smith, 389 S.E.2d at 874, 883 (upholding aggravated battery instruction where defendant shot an armed police officer after stating that he would shoot the first police officer he saw and that he hoped he would be shot in return).
*982The definition of “aggravated battery” in Virginia is “a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.” M. Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). The Virginia Supreme Court, on direct appeal in the instant ease, did not overrule M. Smith, but rather held that “a killing inflicted by multiple gunshot wounds may constitute an ‘aggravated batter/ ... where there is an appreciable lapse of time between the first shot and the last, and where death does not result instantaneously from the first.” Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196, 203 (1987) (emphasis added), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). The Virginia Court in Barnes’ direct appeal believed that the victim was “unarmed,” i.e. had no firearm, Barnes, 360 S.E.2d at 201, and has since cited Barnes in other cases involving unarmed victims, see, e.g., Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d 606, 619, cert. denied, — U.S. -, 113 S.Ct. 421, 121 L.Ed.2d 343 (1992). A review of the cases does not disclose a single instance where Virginia courts have upheld an aggravated battery finding when, on the facts as known to the court, the defendant inflicted the wound in response to the armed resistance of the victim.3 To the contrary, the Supreme Court of Virginia has stated that “[sentencing bodies in this Commonwealth have often imposed the death penalty where the victim was a store clerk, was unarmed, provided little or no resistance, and was killed at literally point blank range.” Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, 227 (1995). Although the Virginia courts have yet to rule on a case in which, on the facts known, the defendant reacted to an armed and resisting victim, the implication of the reported cases coupled with the language in Chandler is clear: Aggravated, battery in Virginia for the purposes of a finding of “vileness” is premised on the existence of a victim who is not armed and not resisting.
As a federal court, we are not free to make state law which diverges from the path that the highest court of the state has indicated it would take if faced with the question. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1783, 18 L.Ed.2d 886 (1967) (“[When] the underlying substantive rule involved is based on state law ... the State’s highest court is the best authority on its own law. If there be no decision by that court then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the State. In this respect, [the federal court] may be said to be, in effect, sitting as a state court.”). Certainly within the greater power to reject the death penalty in its entirety is the lesser power of the states to limit the scope of aggravating factors which may result in the penalty. The role of the federal judiciary is merely to insure that the state system for imposing the death penalty comports with constitutional limitations. See, e.g., Gregg v. Georgia, 428 U.S. 153, 174-75, 96 S.Ct. 2909, 2925-26, 49 L.Ed.2d 859 (1976). In the context of reviewing a statutory aggravating factor such as the “aggravated batter/’ component of the vileness predicate at issue here, the task is to check that the factor “furnish[es] principled guidance for the choice between death and a lesser penalty.” Richmond v. Lewis, — U.S. -, -, 113 S.Ct. 528, 534, 121 L.Ed.2d 411 (1992). It is not within our authority to broaden the scope of a state’s chosen definition of an aggravating factor in its sentencing scheme. Cf. Maynard v. Cartwright, 486 U.S. 356, 364-65, 108 S.Ct. 1853, 1859-60, 100 L.Ed.2d 372 (1988) (refraining from directing state as to which factors may be aggravating factors for imposition of death penalty purposes, but merely imposing the constitutional requirement that the factors chosen by the state may not be vague). *983Therefore, I cannot join the majority’s opinion in its assertion of what Virginia law is.
B. Barnes' Bagley Claim: Materiality.
However, I too conclude that Barnes’ Bag-ley claim must fail, but on other grounds. A petitioner in state confinement may assert a claim on federal habeas review only if he or she either has not defaulted the claim in state court, or has shown cause and prejudice for the default. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). A petitioner may then prove the merits of his or her claim. To assert a Bagley claim successfully, a petitioner must show that the prosecution violated its duty to disclose exculpatory evidence, and that the evidence was material. See United States v. Bagley, 473 U.S. 667, 669, 105 S.Ct. 3375, 3376, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Materiality under Bagley is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. at 682, 105 S.Ct. at 3382; see also Adams v. Aiken, 965 F.2d 1306, 1314 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2966, 125 L.Ed.2d 666 (1993). The majority finds that Barnes has procedurally defaulted his Bagley claim in state court, and that he has shown neither cause nor prejudice for the default. Although the majority is mistaken as to those default issues, I concur in the result reached by the majority because I find that Barnes has faded to prove the materiality prong of his Bagley claim.
I would find that Barnes has failed to demonstrate materiality in the instant case, not because the victim’s firearm is irrelevant as a matter of course, but because Barnes has failed affirmatively to produce any evidence that he saw the firearm at the time of the shooting. Under R. Smith, the defendant cannot avoid an aggravated battery finding by the mere fact that the victim possessed a gun — the sentencing judge must also find some reasonable belief that the defendant may have shot the victim in response to resistance by the victim. See Va. Code § 19.2-264.4C (Commonwealth must prove aggravating factors beyond a reasonable doubt). Because, on habeas review, it is Barnes’ burden to show materiality, he must come forward with evidence that he saw that the victim was armed and resisting. The district court’s reasoning, that the presence of the gun would have raised reasonable doubt in the mind of the sentencing judge even if Barnes could not have seen the gun, is not sound law. In conformity with Virginia’s Code of Professional Responsibility, Barnes’ trial attorney could have argued that the presence of the gun was relevant to “vileness” only if he believed that Barnes may have seen the gun and reacted to it. See Pt. 6, § II, Rules of the Supreme Court of Virginia, Disciplinary Rule 7-102 (“[A] lawyer shall not ... [kjnowingly use ... false evidence [or] [k]nowingly make a false statement of law or fact.”). Barnes, however, has not presented any evidence that he may have seen the gun, and thus Barnes has failed to carry his burden of showing that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
In light of my finding that Barnes has not met the materiality prong of his Bagley claim, I need not decide whether he has shown a violation of the duty to disclose the location of the gun. However, in order to respond to the claims made by the majority in its alternate holdings, I discuss the issue briefly.
C. Barnes’ Bagley Claim: Duty to Disclose.
If it were necessary to decide the question, I would find that Barnes has shown the first prong of his Bagley claim — that the prosecution violated its duty to disclose exculpatory evidence under United States v. Bagley and Brady v. Maryland,4 The government’s *984duty to disclose exculpatory evidence applies to evidence material either to guilt or to punishment, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196, whether the information is in the hands of the prosecutor or the police, Boone v. Paderick, 541 F.2d 447, 450-51 (4th Cir.1976), cert. denied, 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977). The duty applies even to information in the public record, Amadeo v. Zant, 486 U.S. 214, 224, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988); Anderson v. South Carolina, 709 F.2d 887, 888 (4th Cir.1983). An incomplete response by the government to a request for exculpatory evidence violates the duty to disclose: “[A]n incomplete response to a specific request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on a misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3384. It is true that “where the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine.” United States v. Wilson, 901 F.2d 378, 381 (4th Cir.1990). However, a reasonable defendant would not have looked into the matter any further once the prosecuting attorney represented that the Corn-monwealth did not possess exculpatory evidence. The Virginia Code of Professional Responsibility prohibits all attorneys from making false statements of fact and from concealing or failing to disclose information which an attorney is required to reveal. See Pt. 6, § II, Rules of the Supreme Court of Virginia, Disciplinary Rule 7-102. A defense attorney may reasonably assume a prosecuting attorney is obeying the Code of Professional Responsibility.
Evidence of the location of the victim’s gun here was supplied to the prosecution by a police officer in a police report. Barnes’ trial counsel made a Brady request for “[a]ny material or information which would tend to reduce the punishment of the defendant, including but not limited to ... any ... mitigating circumstances favorable to the defendant.” The prosecution answered inaccurately that it had no such information. The prosecution also furnished defense counsel with the misleading stipulation quoted by the majority. Op. at 976. The majority’s statement that “[t]he record evidence plainly supports the state court’s conclusion that Barnes could have discovered the location of the victim’s gun through ‘a reasonable and diligent investigation,’ ” op. at 976-77, is doubly inaccurate. Not only did the state court never make such a finding,5 but no evidence was submitted to substantiate the Common*985wealth’s argument that Barnes’ trial counsel reasonably would have interviewed police officers, attended the trial of the accomplice (Corey), read the transcript from his trial, etc.6 Trial counsel had no reasonable duty to inquire about police officers’ knowledge when he had been told simply that there was an unfired gun in the store, since, as he stated in unrebutted testimony, many storekeepers have guns behind the counter. Moreover, no evidence was presented to show that a reasonable defense counsel should be expected to sit in on the trial of an accomplice ten days before the trial of his own client — to the contrary one might think that the attorney must be preparing his client’s evidence and his cross-examination of the prosecution’s witnesses during the days immediately preceding trial. Because no evidence was produced showing that a transcript would have been immediately available from the accomplice’s trial, the information was not shown to be reasonably available from that source either. Counsel for the accomplice never testified, so there was also no evidence as to the availability of information from that source. The Commonwealth never put its own prosecuting attorney on the stand, and so failed even to show that, if Barnes’ trial counsel had asked the prosecuting attorney where the gun was, the prosecuting attorney would have answered truthfully after having misled trial counsel with the prior statements. Thus the first prong of Bagley, the violation of a duty to disclose, has been made out here.
D. Barnes’ Bagley Claim: State Procedural Default.
As noted above, I find that Barnes has not defaulted his Bagley claim in state court. Under Virginia state law, a habeas claim is proeedurally defaulted if a petitioner had knowledge of the facts upon which the claim is based at the time of filing any previous habeas petition. Va.Code § 8.01-654(B)(2). The majority misstates the law in this regard; Virginia law bars successive petitions where the facts were known to petitioner previously, not where the facts were “available,” op. at 975, to the petitioner previously.7 Likewise, the majority’s contention that McCleskey v. Zant, 499 U.S. 467, 498, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991), provides the standard regarding procedural default for the state court reviewing a successive state habeas petition, op. at 975, is without merit. . The United States Supreme Court in McCleskey announced the standard to be applied to successive federal habeas petitions; the United States Supreme Court is without authority to limit the ability of state courts to hear successive state habeas petitions. Rather, the law in Virginia restricts successive habeas petitions to those raising both “new ground[s] for relief,” see Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271, 273 (1970), and facts not known to the petitioner at the time of filing an earlier habeas petition, Va.Code § 8.01-654(B)(2). Both of those requirements were met here.
In the instant case, Barnes had filed a first state habeas petition raising, inter alia, ineffective assistance of counsel, but not raising nondisclosure of the gun’s location. Barnes did not discover the location of the gun, and the nondisclosure, until after his first habeas petition had been denied. He then filed his second state habeas petition, raising for the first time in state court the nondisclosure *986issue. The Virginia Supreme Court held that the Virginia Code section cited above, Va. Code § 8.01-654(B)(2), barred Barnes’ petition, thus implicitly finding that Barnes had knowledge of the prosecutor’s nondisclosure of the location of the gun at the time he filed his first state habeas petition. Although the state court’s factual finding with regard to prior knowledge is entitled to a “presumption of correctness” from the federal courts, Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir.1988), that presumption is rebutted when a federal court concludes that the finding is “not ‘fairly supported by the record.’ ” Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (quoting 28 U.S.C. § 2254(d)(8)).8 Here, the determination that Barnes knew about the Brady materials when he filed his first state habeas petition is not supported by the record, as the prosecution’s knowledge of the location of the gun was not disclosed to Barnes until 1990, after his first state habeas petition had been denied.9
In light of the finding that Barnes has not defaulted his Bagley claim in state court, I need not decide whether, if he had defaulted the claim, he has shown cause and prejudice for the default. However, in order to respond to the claims made by the majority in its alternate holdings, I discuss the issue briefly.
E. Barnes’ Bagley Claim: Cause and Prejudice.
Even if Barnes had procedurally defaulted his claim in state • court, I would find that Barnes has amply demonstrated cause for the default. The majority’s conclusion that Barnes’ trial counsel made a “tactical” decision not to discover the location of the victim’s handgun, op. at 977, is unsupported by the record. Neither the Commonwealth nor the majority has come forward with a single tactical reason why a defense attorney would not want to discover the location of a weapon possessed by a victim. Rather, trial counsel’s uncontradicted testimony in the district court establishes that he concluded, based on statements made by the prosecution, that the victim’s firearm was not at the immediate scene of the crime.
The statements by the prosecution included the stipulation offered by the prosecution which is quoted by the majority, and the prosecution’s response to trial counsel’s aforementioned request for any material or information which would tend to reduce the punishment of the defendant. It was reasonable for trial counsel to believe the prosecution’s answer that there was no such material or information in its possession, rather than interviewing the police who had been at the scene. It was reasonable for trial counsel to busy himself preparing for Barnes’ trial rather than attending the trial of Barnes’ code-*987fendant, Corey, which took place ten days before Barnes’ trial. No- more than “ ‘a showing that the factual or legal basis for a claim was not reasonably available to counsel,’ ” McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)), is required.
In fact, had trial counsel’s decision not to investigate further and to rely upon the assumed honesty of the prosecution’s answer been unreasonable, then Barnes would have made a viable showing of the unreasonable performance prong of an ineffective assistance of trial counsel claim for failure to investigate the location of the firearm. The majority wants to have it both ways, finding both reasonable performance as to Barnes’ claim of ineffective assistance of counsel for failure to investigate the location of the gun, op. at 977, and lack of reasonable investigation as to Barnes’ Bagley claim, op. at 977; I cannot concur in such inconsistent findings where, as here, there has been no showing of a tactical decision by trial counsel not to investigate the location of the gun, and the prosecution’s failure to disclose the location of the gun was an objective factor external to Barnes’ defense which impeded his counsel’s efforts to raise the issue at trial. Cf. Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645 (holding that ineffective assistance constitutes cause, but mere attorney tactical error is not necessarily cause, unless “some objective factor external to the defense” such as “ ‘some interference by officials,’ made compliance impracticable” (internal citations omitted)).
However, for the same reasons that I do not find materiality shown as to Barnes’ Bagley claim, see supra, if Barnes had defaulted the claim in state court, I would find that he was not prejudiced by the default.
F. Barnes’ Ineffective Assistance Claim as to his Trial Counsel’s Failure to Present Evidence of Mitigating Factors at Sentencing.
As to Part III, I concur in the majority’s finding that Barnes has not shown that his attorney’s performance fell below an objective standard of reasonableness. I therefore find it unnecessary to reach the question of whether Barnes was prejudiced by his attorney’s performance, and I do not join the majority’s opinion to the extent that it discusses whether the outcome of Barnes’ sentencing would have been different had his attorney’s performance been different. However, again to respond to the conclusions made by the majority, I will discuss the prejudice prong of Barnes’ ineffective assistance of counsel claim briefly.
The standard for showing prejudice is less than a preponderance standard; the petitioner must show merely that trial counsel’s ineffectiveness “undermine[s] confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Moreover, review of the district court’s findings of prejudice on an ineffective assistance of counsel claim is de novo. See Fields v. Attorney General of the State of Maryland, 956 F.2d 1290, 1297 n. 18 (4th Cir.1992) (listing standards of review applicable to habeas proceedings).
If it were necessary to decide the question, I would find that the failure to raise evidence of past abuse was not prejudicial, because past abuse has often been found by Virginia courts to have little mitigating weight. See, e.g., Jenkins v. Commonwealth, 244 Va. 445, 423 S.E.2d 360, 371 (1992) (upholding death sentence in face of evidence of tragic upbringing of defendant), cert. denied, — U.S. -, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993); Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d 352, 360 (upholding death sentence in face of evidence of an unfortunate home situation and troubled childhood), cert. denied, 482 U.S. 931, 107 S.Ct. 3219, 96 L.Ed.2d 705 (1987). However, I would find prejudicial the failure to raise evidence of Barnes’ mental defects and his past responsiveness to a juvenile rehabilitation program. The majority states that evidence of mental defects could have led to a finding of dangerousness, and therefore the failure to present the evidence of mental defects was not prejudicial to petitioner. However, the evidence regarding Barnes’ mental defects is that he has brain damage and lowered intellectual functioning, not some type of mental illness which *988might render him dangerous. Mental incapacity is a statutory mitigating factor in Virginia, see Va.Code § 19.2-264.4(B), and the Commonwealth itself has admitted that, because of petitioner’s limited criminal record, it was “highly unlikely” that future dangerousness would have been found. Reply Br. of Appellant at 21. If it was “highly unlikely” that future dangerousness would have been found with no evidence of Barnes’ low intelligence and brain damage, then surely it still would have been unlikely that future dangerousness would have been found with the evidence of his mental defects. If this were not the case, all “mental defects,” whether mental illness or low intelligence, would be per se aggravating factors, not a mitigating factor. The majority does not state whether or not it believes that the failure to present evidence of potential for rehabilitation was prejudicial, but in light of Barnes’ youth (he was 21 years old), I would find the failure to present the evidence was prejudicial.
Conclusion.
In sum, because Barnes has not shown materiality of the location of the victim’s gun, and because he has not shown unreasonable performance by his trial counsel, I concur in the result reached by the majority, reversing the writ of habeas corpus and remanding with instructions to reinstate the death sentence. However, I also respectfully disagree ■with several assertions of law made by the majority, as I have noted throughout. I have been presented with many statements of dicta and alternative holdings which have led to the necessity of an attempt to rebut the erroneous statements which need not have been made in the first place.
. Because the outcome of Barnes' Bagley claim is dispositive of my decision to concur with rather than dissent from the majority opinion, I discuss it first. I reach Barnes' Bagley claim because, as I will discuss below, I find that Barnes did not default the claim in state court.
. The majority hedges on its holding that the victim's use of a weapon is irrelevant by responding to Barnes' argument concerning the threat posed to Barnes by the victim here. The majority states that it "find[s] hollow El-Amin's contention ... that after the two shots, Jenkins 'was still combative ...’ " Op. at 977 n. 6. However, the majority fails to note that it was the prosecution's witness, Ricky Adams, who testified that Jenkins was attempting to rise, and no medical authority testified to the contrary. Not being a medical doctor myself, I do not speculate as to whether a man who has been shot and attempts to rise can shoot a handgun, but instead accept the testimony presented at trial.
. The majority’s contrary reading of R. Smith inexplicably relies on defendant Smith's version of events, a version which was not supported by the physical evidence, see R. Smith, 389 S.E.2d at 881-82 ("[Ojnly Smith fired a rifle and ... the first shots fired were ‘real sharp ... cracks’ indicative of rifle fire....”), and which was rejected by the jury, see id. at 882 (“[T]he jury was entitled to disbelieve Smith's testimony and find it was [Smith] who fired the first shot.”). "Apparently," the majority "has either misread or failed to read R. Smith," Op. at 978.
. Although the majority conflates the two prongs of a Brady/Bagley claim, see op. at 975 n. 3, I take the analytically more rigorous approach of analyzing the duty-to-disclose prong of Barnes’ claim separately from my analysis above of the materiality prong. Both approaches should *984reach the same result — if and only if a petitioner fails one of the Brady/Bagley prongs, he or she should also fail the majority’s conflated test — but my approach makes clear, where the majority's does not, the precise rationale for the failure of a claim.
. The majority's belief that a state court's default determination under a state law providing that "[n]o writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition,” Va.Code § 8.01-654(B)(2) (emphasis added), "reflects a finding that indeed the petitioner either knew or had available all of the facts on which the current petition was based,” op. at 976 n. 5 (emphasis added), relies on a specious reading of the English language. Whether one uses Black’s or Webster’s, the words "had knowledge” do not mean "either knew or had available.” The majority’s citations to Waye and Stockton do not support its Orwellian attempt to rewrite our dictionaries. For example, the Stockton opinion refers to a petitioner's actual and constructive knowledge in the context of discussing whether or not the petitioner has shown cause for his state procedural default such that the merits of his claim may be examined in federal court; Stockton's reference does not relate to a Virginia state court finding under Virginia Code § 8.01-654(B)(2). Stockton v. Murray, 41 F.3d 920, 925 (4th Cir.1994). The Stockton opinion does contain, in dicta, a parenthetical explanation of the holding in Waye which comports with the majority's Orwellian reading; however, not only is the Stockton parenthetical dicta, it is an inaccurate reading of Waye: as I explain below, Waye did not, and cannot in light of the fact that the federal courts are not free to rewrite state law, change the standard for procedural default of state habeas claims in Virginia. See infra n. 7. Rather, as I correctly state below, such a default determination by the Virginia Supreme Court in the instant case reflects an implicit, although erroneous, finding that Barnes "had knowledge” of the prosecutor's nondisclosure. See infra.
. The prosecution must bear the burden of showing that a reasonable investigation would have disclosed the concealed evidence because, when the defense attorney did not know about the evidence, only the prosecution can show where the evidence was located.
. In an apparent attempt to replace the Virginia state standard for procedural default with the federal standard for cause, the majority quotes out of context the following statement from Waye v. Murray — “all of the facts on which the current petition was based were either known or available to the petitioner.” In context, the statement refers both to findings regarding cause and prejudice made by a federal district court (i.e., a finding that the facts were “available” to the petitioner), and to findings regarding state procedural default made by the Virginia Supreme Court in that case (i.e., a finding that the facts were "known” to the petitioner); the statement does not refer, as the majority attempts to imply, to a state court finding of default alone. See Waye v. Murray, 884 F.2d 765, 766 (4th Cir.), cert. denied, 492 U.S. 936, 110 S.Ct. 29, 106 L.Ed.2d 634 (1989). In the instant case, the federal court found that the facts were unknown, and the state court, erroneously, found that the facts were known.
. The majority incorrectly claims that "a federal court does not have license to question a state court's finding of procedural default.” Op. at 974, n. 2. Rather, as the language I have quoted from Clanton and Demosthenes demonstrates, the federal court must engage in a review of state court factual findings under the "fairly supported by the record” standard.
. In what might charitably be termed a telling slip of the tongue, the majority opinion claims that I have confused the inquiry into the existence of a state procedural default with an inquiry into cause. See op. at 974 n. 2. In fact, it is the majority which attempts to foist the federal standard for cause onto the Virginia state standard for default. I respect the Virginia state standard for default as stated in the Code of Virginia, and I analyze the federal issue in turn.
An example using simple facts may help to explain why default and cause are distinct questions. Suppose, for example, that rather than dismissing Barnes’ state habeas petition for failure to make his Bagley claim at the time he filed his first state habeas petition, the Virginia Supreme Court instead had dismissed the petition because it was filed on a Tuesday. Suppose also that, for purposes of administrative convenience, Virginia had a procedural rule requiring that habeas petitions may only be filed on Mondays. Suppose further that Barnes' petition had in fact been filed on a Monday, but that due to the fact that the Virginia Supreme Court had examined the calendar for a different year, the Virginia Court mistakenly believed that Barnes had filed on a Tuesday. In such a case, federal habeas review would not be barred for precisely the same reason it is not barred here: Barnes has not procedurally defaulted gin state court. Because Barnes never filed on Tuesday, he never defaulted; it would be inaccurate for the federal court to "confuse” the inquiry by saying that Barnes has shown cause for a [nonexistent] default. The same is true here; under the law of the state of Virginia, Barnes never defaulted his Bagley claim.