concluding that U.S. v. Frady, 348 F.2d 84 (1965) had displaced the analysis of Kaufman v. United States, 350 F.2d 408 (1965) in section 2255 cases
How later courts described this case
- concluding that U.S. v. Frady, 348 F.2d 84 (1965) had displaced the analysis of Kaufman v. United States, 350 F.2d 408 (1965) in section 2255 cases
- adopting the cause and actual prejudice standard of U.S. v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), for evaluating a federal prisoner’s use in a section 2255 motion of a constitutional issue not raised on direct appeal
- Wood, Circuit Judge, joined by Bauer, Circuit Judge, dissenting from decision not to hear the case en banc
- finding deliberate bypass test replaced by cause and prejudice test
Written by the judges who cited it.
Later courts went against this
Declined to follow by United States v. Everett Ray Darnell, 716 F.2d 479 (1983)
687 F.2d 899 (7th Cir.1982), we decline to extend the cause and prejudice test to
The opinion
HARLINGTON WOOD, Jr., Circuit Judge,
with whom
BAUER, Circuit Judge, joins, dissenting from decision not to hear the case en banc.
Judge Bauer and I are concerned because a policy issue of importance, which generated a dissent within the panel and “arguably” creates a conflict with a previous decision of this court, is being decided under F.R.A.P. 34(a). That Rule is designed for frivolous cases; or those cases the issues of which have been recently authoritatively decided; or where the facts and legal arguments are adequately briefed and oral argument would not aid the decisional process. Not only was there no oral argument, but petitioner did not have the benefit, and indirectly this court, of counsel. Believing that our opinions, at least in cases of some significance, preferably should result from the effective functioning of the adversary system, we express no views on the merits of the issue.