                  Cite as: 562 U. S. ____ (2010)            1

                   SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
     MARCEL WAYNE WILLIAMS v. RAY HOBBS, 

     DIRECTOR, ARKANSAS DEPARTMENT OF

                CORRECTION

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

            No. 09–10382.   Decided December 6, 2010


   The motion of Scholars of Habeas Corpus Law for leave
to file a brief as amici curiae is granted. The petition for a
writ of certiorari is denied.
   JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from denial of certiorari.
   Today the Court refuses to review the Eighth Circuit’s
conclusion that a State may withhold an objection to a
federal habeas evidentiary hearing until after the hearing
is complete, the constitutional violation established, and
habeas relief granted. Because I believe such a rule en
ables, and even invites, States to manipulate federal
habeas proceedings to their own strategic advantage at an
unacceptable cost to justice, I respectfully dissent.
   Petitioner Marcel Wayne Williams was charged with
capital murder, kidnapping, rape, and aggravated robbery.
At trial, his attorneys conceded guilt in the opening
statement, apparently hoping to establish credibility with
the jury and ultimately to convince the jury to recommend
a sentence of life without parole. Despite adopting this
strategy, however, Williams’ attorneys called only one
witness at the penalty phase, an inmate who had no per
sonal relationship with Williams and who testified from
his own experience that life was more pleasant on death
row than in the general prison population. Not surpris
ingly, the jury unanimously recommended a death sen
tence. The trial court sentenced Williams to death by
lethal injection, and the Arkansas Supreme Court af
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                   SOTOMAYOR, J., dissenting

firmed the conviction and sentence on direct appeal.
Williams v. State, 338 Ark. 97, 991 S. W. 2d 565 (1999).
   After the Arkansas courts denied his petition for collat
eral relief, Williams filed a federal habeas petition under
28 U. S. C. §2254. Williams alleged that he received inef
fective assistance of counsel under Strickland v. Washing
ton, 466 U. S. 668 (1984), due to his attorneys’ failure to
develop and present mitigating social history evidence to
the jury. As to Strickland’s performance prong, the Dis
trict Court held that the state-court decision denying
Williams’ ineffective-assistance claim was “based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” Wil
liams v. Norris, No. 5:02CV00450, 2006 WL 1699835, *8
(ED Ark., June 19, 2006). As to prejudice, the court con
cluded that the record was inconclusive and ordered an
evidentiary hearing. The testimony at the hearing estab
lished that Williams had been “subject to every category of
traumatic experience that is generally used to describe
childhood trauma”: sexual abuse by multiple perpetrators;
physical and psychological abuse by his mother and step
father; gross medical, nutritional, and educational neglect;
exposure to violence in the childhood home and neighbor
hood; and a violent gang-rape while in prison as an ado
lescent. 2007 WL 1100417, *2 (Apr. 11, 2007). On the
basis of that testimony, the District Court found that
Williams had been prejudiced by counsel’s ineffective
assistance, granted habeas relief, and ordered the State to
afford Williams a new trial at the penalty phase or to
reduce his sentence to life without parole. Id., at *2–*3.
   The Court of Appeals reversed, reinstating the sentence
of death by lethal injection. Williams v. Norris, 576 F. 3d
850 (CA8 2009). Concluding that Williams was not enti
tled to a federal evidentiary hearing in the first place and
entirely disregarding the evidence introduced at the hear
ing as a result, the court held that Williams had failed to
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                   SOTOMAYOR, J., dissenting

prove prejudice “on the factual record he developed in
state court.” Id., at 863. Thus, although the District
Court found that the State never “object[ed] to [the court’s
decision] to conduct an evidentiary hearing” nor “argued
that [it] should not consider that evidence” in ruling on
Williams’ petition, 2007 WL 1100417, *2, n. 1; see also id.,
at *3, the Court of Appeals held that the State had in fact
objected to the hearing. In the alternative, the Court of
Appeals concluded that it would “exercise [its] discretion
to review the district court’s non-compliance with
§2254(e)(2)” even if the State had not objected. 576 F. 3d,
at 860.
  To be sure, under §2254(e)(2), if a habeas petitioner “has
failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hear
ing on the claim” unless certain conditions are met. Had
the State invoked this section in the District Court, the
hearing may have been barred for the reasons given by the
Court of Appeals. But whether §2254(e)(2) barred the
hearing is a separate question from whether the State’s
§2254(e)(2) objection was properly before the Court of
Appeals in the first place. As to that threshold question,
neither of the holdings adopted by the court below with
stands scrutiny.
  First, the Eighth Circuit’s conclusion that the State
objected in the District Court to the evidentiary hearing is
patently wrong. As proof of an objection, the Court of
Appeals found one sentence in the record where the State
asserted that a federal habeas court “is prevented from re
trying a state criminal case.” 576 F. 3d, at 860 (internal
quotation marks omitted). According to the Court of Ap
peals, this statement amounted to an objection to the
hearing because it “incorporated the fundamental purpose
behind the restrictions on evidentiary hearings in
§2254(e)(2).” Ibid. As a general matter, however, a party
wishing to raise an objection and preserve an issue for
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                   SOTOMAYOR, J., dissenting

appeal must “pu[t] the court on notice as to [its] concern,”
Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 174 (1988).
Absolutely nothing in the State’s general statement—or
any other part of the record, for that matter—put the
District Court, or Williams, on notice that the State con
tested Williams’ entitlement to an evidentiary hearing.
Even if a State need not spell out its opposition to an
evidentiary hearing in precise terms, I cannot fathom how
this statement of a general principle of law—a principle
that is no less true even when a federal evidentiary hear
ing is proper—could suffice.
  Indeed, rather than reveal an objection to the hearing,
the record indicates that the State affirmatively consented
to the hearing and sought to use the hearing to its own
strategic advantage. Williams made multiple straightfor
ward requests for an evidentiary hearing in no unclear
terms. And, the District Court clearly informed the State
of its intent to grant that request, giving the State every
opportunity to object that a hearing was improper because
Williams had “failed to develop the factual basis of [his]
claim” in state court, §2254(e)(2). Rather than protest, the
State requested that the court narrow the issues on which
evidence would be heard and that the hearing be resched
uled due to the unavailability of its own witness. The
State then relied on new evidence developed at the hearing
to contest the court’s prior conclusion, on the state-court
record, that defense counsel’s performance had been defi
cient. The State presented the same evidence on appeal,
although there it also argued—inconsistently and for the
very first time—that the hearing had been improper. I
simply cannot see how this record suggests anything other
than a deliberate strategy by the State to use the hearing
to fortify the record in support of the state-court decision
and to object to the hearing only if and when that strategy
failed.
  Second, with respect to the Eighth Circuit’s alternative
                     Cite as: 562 U. S. ____ (2010)                     5

                       SOTOMAYOR, J., dissenting

holding that it would, in any event, “exercise [its] discre
tion to review the district court’s non-compliance with
§2254(e)(2),” 576 F. 3d, at 860, the Court of Appeals seri
ously misapplied our precedent. The court assumed that
it possessed discretion to consider an objection to an evi
dentiary hearing that is asserted only after the hearing
has been conducted, the constitutional violation estab
lished, and habeas relief granted, relying on this Court’s
decision in Day v. McDonough, 547 U. S. 198 (2006). In
that case, we held that “district courts are permitted, but
not obliged, to consider, sua sponte, the timeliness of a
state prisoner’s habeas petition.” Id., at 209. Even as
suming that same discretion applies in these circum
stances,* Day makes clear that the court must “ ‘determine
whether the interests of justice would be better served’ ” by
allowing the State’s unasserted defense to expire without
court intervention. Id., at 210 (quoting Granberry v.
Greer, 481 U. S. 129, 136 (1987)). In particular, and of
critical significance to this case, the court must evaluate
whether anything “in the record suggests that the State
‘strategically’ withheld the defense or chose to relinquish
it.” Day, 547 U. S., at 211. If so, the court “would not be
at liberty to disregard that choice.” Id., at 210, n. 11.
Thus, even assuming Day applied here, it required the
Court of Appeals to search the record for a suggestion of
strategic forfeiture. Yet, despite the record described
——————
  * Although we have never decided whether the courts of appeals pos
sess discretion to consider after-the-fact objections of the kind here, we
have at least left open the possibility that a State might forfeit such an
objection if the State fails to raise it properly. See Bradshaw v. Richey,
546 U. S. 74, 79–80 (2005) (per curiam) (remanding for the Sixth
Circuit to address the argument that the State “failed to preserve its
objection to the [court’s] reliance on evidence not presented in state
court by failing to raise this argument properly”); Holland v. Jackson,
542 U. S. 649, 653, n. (2004) (per curiam) (rejecting the contention that
the State had failed to preserve its objection on the record present
there).
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                   SOTOMAYOR, J., dissenting

above, which at the very least raises the possibility of a
deliberate decision by the State, the Court of Appeals
failed to consider the question at all.
   Day also would require the Court of Appeals to “assure
itself” that Williams would not be “significantly prejudiced
by the delayed focus” on his entitlement to a federal evi
dentiary hearing. Id., at 210. Williams raised just this
point in the Court of Appeals, arguing that the State’s
untimely objection to the evidentiary hearing had “de
prived [him] of any opportunity to present facts that would
show his entitlement to a hearing under the applicable
standard.” Brief for Appellee/Cross-Appellant and Adden
dum in No. 07–1984 etc. (CA8), p. 8. This, too, the court
failed to address.
   In fact, the Court of Appeals made no mention of—and
apparently gave no consideration to—any countervailing
interests weighing against review of the State’s untimely
§2254(e)(2) challenge. Such interests are certainly signifi
cant where, as here, the evidence at the hearing led the
District Court to conclude that a constitutional violation
had occurred and that a capital sentence must be set
aside. Indeed, the relevant interests to be considered
include not only interests of finality and comity (the singu
lar focus of the Court of Appeals), but also the interest of
remedying a “miscarriage of justice” that is evident after
“a full trial has been held in the district court.” Gran
berry, 481 U. S., at 135.
   In my opinion, the interests of justice are poorly served
by a rule that allows a State to object to an evidentiary
hearing only after the hearing has been completed and the
State has lost. Cf. Puckett v. United States, 556 U. S. —,
— (2009) (slip op., at 5) (“[T]he contemporaneous-objection
rule prevents a litigant from ‘sandbagging’ the court—
remaining silent about his objection and belatedly raising
the error only if the case does not conclude in his favor”).
It is true, as the Court of Appeals emphasized, that the
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                   SOTOMAYOR, J., dissenting

policy against evidentiary hearings in federal habeas
promotes principles of comity and federalism. See Wil
liams v. Taylor, 529 U. S. 420, 436–437 (2000). But when
the State voluntarily participates in a federal evidentiary
hearing—without objection, with an apparent intent of
supplementing the record for its own purposes, and at a
significant cost and expenditure of judicial resources—
these interests are significantly diminished if not alto
gether absent. We have refused to adopt rules that “would
permit, and might even encourage, the State to seek a
favorable ruling on the merits in the district court while
holding [a] defense in reserve for use on appeal if neces
sary.” Granberry, 481 U. S., at 132. Because I believe the
opinion below does just that, at an unacceptable cost to the
interests of justice generally and in this particular case, I
would grant the petition for writ of certiorari and vacate
the judgment below.
