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been smaller, but once the claim was properly before the court, the right to a hearing was not construed as narrowly as the Court construes it today.

B

Instead of looking to the history of the right to an evidentiary hearing, the Court simply borrows the cause and prejudice standard from a series of our recent habeas corpus cases. Ante, at 5-8. All but one of these cases address the question of when a habeas claim is properly before a federal court despite the petitioner's procedural default. See Coleman v. Thompson, supra; Murray v. Carrier, 477 U. S. 478 (1986); Reed v. Ross, 468 U. S. 1 (1984); Engle v. Isaac, 456 U. S. 107 (1982); Wainwright v. Sykes, supra; Francis v. Henderson, 425 U. S. 536 (1976). The remaining case addresses the issue of a petitioner's abuse of the writ. See McCleskey v. Zant, 499 U. S. 467 (1991). These cases all concern the question whether the federal court will consider the merits of the claim, that is, whether the court has the authority to upset a judgment affirmed on direct appeal. So far as this threshold inquiry is concerned, our respect for state procedural rules and the need to discourage abuse of the writ provide the justification for the cause and prejudice standard. As we have said in the former context: "[T]he Great Writ imposes special costs on our federal system. The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Engle, supra, at 128.

The question we are considering here is quite different. Here, the Federal District Court has already determined that it will consider the claimed constitutional violation; the only question is how the court will go about it. When it

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comes to determining whether a hearing is to be held to resolve a claim that is already properly before a federal court, the federalism concerns underlying our procedural default cases are diminished somewhat. By this point, our concern is less with encroaching on the territory of the state courts than it is with managing the territory of the federal courts in a manner that will best implement their responsibility to consider habeas petitions. Our adoption of a cause and prejudice standard to resolve the first concern should not cause us reflexively to adopt the same standard to resolve the second. Federalism, comity, and finality are all advanced by declining to permit relitigation of claims in federal court in certain circumstances; these interests are less significantly advanced, once relitigation properly occurs, by permitting district courts to resolve claims based on an incomplete record.

III

The Court's decision today cannot be reconciled with subsection (d) of 28 U. S. C. § 2254, which Congress enacted only three years after we decided Townsend. Subsection (d) provides that state court factfinding "shall be presumed to be correct, unless the applicant shall establish" one of eight listed circumstances. Most of these circumstances are taken word for word from Townsend, including the one at issue here; §2254(d)(3) renders the presumption of correctness inapplicable where "the material facts were not adequately developed at the State court hearing." The effect of the presumption is to augment the habeas petitioner's burden of proof. Where state factfinding is presumed correct, the petitioner must establish the state court's error "by convincing evidence"; where state factfinding is not presumed correct, the petitioner must prove the facts necessary to support his claim by only a preponderance of the evidence. Sumner v. Mata, 449 U. S. 539, 551 (1981).

Section 2254(d) is not, in the strict sense, a codification of our holding in Townsend. The listed circumstances in

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Townsend are those in which a hearing must be held; the nearly identical listed circumstances in §2254(d) are those in which facts found by a state court are not presumed correct. But the two are obviously intertwined. If a habeas petitioner fulfills one of the Townsend requirements he will be entitled to a hearing, and by virtue of fulfilling a Townsend requirement he will necessarily have also fulfilled one of the § 2254(d) requirements, so that at his hearing the presumption of correctness will not apply. On the other hand, if the petitioner has not fulfilled one of the Townsend requirements he will generally not have fulfilled the corresponding § 2254(d) requirement either, so he will be entitled neither to a hearing nor to an exception from the presumption of correctness. Townsend and §2254(d) work hand in hand: Where a petitioner has a right to a hearing he must prove facts by a preponderance of the evidence, but where he has no right to a hearing he must prove facts by the higher standard of convincing evidence. Without the opportunity for a hearing, it is safe to assume that this higher standard will be unattainable for most petitioners. See L. Yackle, Postconviction Remedies 508-509 (1981).

In enacting a statute that so closely parallels Townsend, Congress established a procedural framework that relies upon Townsend's continuing validity. In general, therefore, overruling Townsend would frustrate the evident intent of Congress that the question of when a hearing is to be held should be governed by the same standards as the question of when a federal court should defer to state court factfinding. In particular, the Court's adoption of a "cause and prejudice" standard for determining whether the material facts were adequately developed in state proceedings will frustrate Congress' intent with respect to that Townsend circumstance's statutory analog, §2254(d)(3).

For a case to fit within this Townsend circumstance but none of Townsend's other circumstances, the case will very likely be like this one, where the material facts were not

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developed because of attorney error. Any other reason the material facts might not have been developed, such as that they were unknown at the time or that the State denied a full and fair opportunity to develop them, will almost certainly be covered by one of Townsend's other circumstances. See Townsend, 372 U. S., at 313. We have already held that attorney error short of constitutionally ineffective assistance of counsel does not amount to "cause." See Murray v. Carrier, 477 U. S., at 488. As a result, the practical effect of the Court's ruling today will be that for a case to fall within Townsend's fifth circumstance but no other for a petitioner to be entitled to a hearing on the ground that the material facts were not adequately developed in state court but on no other ground-the petitioner's attorney must have rendered constitutionally ineffective assistance in presenting facts to the state factfinder.

This effect is more than a little ironic. Where the state factfinding occurs at the trial itself, counsel's ineffectiveness will not just entitle the petitioner to a hearing-it will entitle the petitioner to a new trial. Where, as in this case, the state factfinding occurs at a postconviction proceeding, the petitioner has no constitutional right to the effective assistance of counsel, so counsel's poor performance can never constitute "cause" under the cause and prejudice standard. Coleman v. Thompson, 501 U. S., at 752. After today's decision, the only petitioners entitled to a hearing under Townsend's fifth circumstance are the very people who do not need one, because they will have already obtained a new trial or because they will already be entitled to a hearing under one of the other circumstances. The Court has thus rendered unusable the portion of Townsend requiring hearings where the material facts were not adequately developed in state

court.

As noted above, the fact that §2254(d)(3) uses language identical to the language we used in Townsend strongly suggests that Congress presumed the continued existence of this

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portion of Townsend. Moreover, the Court's application of a cause and prejudice standard creates a conundrum regarding how to interpret §2254(d)(3). If a cause and prejudice standard applies to §2254(d)(3) as well as Townsend's fifth circumstance, then the Court has rendered §2254(d)(3) superfluous for the same reason this part of Townsend has become superfluous. While we may deprive portions of our own prior decisions of any effect, we generally may not, of course, do the same with portions of statutes. On the other hand, if a cause and prejudice standard does not apply to § 2254(d)(3), we will have uncoupled the statute from the case it was intended to follow, and there will likely be instances where a petitioner will be entitled to an exception from the presumption of correctness but will not be entitled to a hearing. This result does not accord with the evident intent of Congress that the first inquiry track the second. Reconciliation of these two questions is now left to the district courts, who still possess the discretion, which has not been removed by today's opinion, to hold hearings even where they are not mandatory. See Townsend, supra, at 318.

For these reasons, I think § 2254(d) presumes the continuing validity of our decision in Townsend, including the portion of the decision that recognized a "deliberate bypass" exception to a petitioner's right to a hearing where the material facts were not adequately developed in the state court. Jose Tamayo-Reyes alleges that he pleaded nolo contendere to a crime he did not understand. He has exhausted state remedies, has committed no procedural default, has properly presented his claim to a Federal District Court in his first petition for a writ of habeas corpus, and would be entitled to a hearing under the standard set forth in Townsend. Given that his claim is properly before the District Court, I would not cut off his right to prove his claim at a hearing. I respectfully dissent.