In the 1990 case McCleskey v. Zant, the U.S Supreme Court ruled on a habeas corpus petition filed by Warren McCleskey, who was convicted of murder and sentenced to death in Georgia. The court held that for a successive or abusive habeas petition to be dismissed, there must be an objective factor external to the defense impeding counsel's efforts to raise the claim in an earlier proceeding or show that it is based on a new rule of constitutional law made retroactive by Supreme Court. In this case, McCleskey failed both tests as he could not demonstrate cause for his failure to raise his claims at appropriate time nor actual prejudice resulting from errors at trial. Furthermore, he did not base his claim on any new rules of constitutional law made retroactive by Supreme Court. Therefore, his second federal habeas corpus application was deemed abusive and thus dismissed.

In the dissenting opinion for MCCLESKEY v. ZANT, Justice Marshall argued that McCleskey's claim of racial bias in his death sentence was a fundamental miscarriage of justice and should have been heard despite procedural default rules. He criticized the majority for its rigid application of these rules, which he believed undermined the fairness and integrity of capital punishment proceedings. Furthermore, he contended that evidence suggesting systemic racial discrimination in Georgia’s administration of the death penalty warranted federal review to ensure constitutional rights were not violated. In essence, Justice Marshall asserted that procedural barriers should not prevent courts from addressing substantial claims involving racial bias or other serious constitutional issues.