EDWARDS, WARDEN v. CARPENTER

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Syllabus
EDWARDS, WARDEN v. CARPENTER
certiorari to the united states court of appeals for
the sixth circuit
No. 98–2060. Argued February 28, 2000—Decided April 25, 2000
Respondent pleaded guilty while maintaining his innocence to Ohio mur-
der and robbery charges in exchange for the prosecutor’s agreement
that the plea could be withdrawn if the death penalty was imposed.
The Ohio Court of Appeals affirmed his conviction and sentence of im-
prisonment, and he did not appeal to the Ohio Supreme Court. After
pursuing state postconviction relief pro se, respondent, represented by
new counsel, petitioned the Ohio Court of Appeals to reopen his direct
appeal, claiming that his original appellate counsel was constitutionally
ineffective in failing to challenge the sufficiency of the evidence sup-
porting his conviction and sentence. The court dismissed the applica-
tion as untimely under Ohio Rule of Appellate Procedure 26(B), and the
Ohio Supreme Court affirmed. Respondent then filed a federal habeas
petition, raising, inter alia, the sufficiency-of-the-evidence claim, and
alleging that his appellate counsel was constitutionally ineffective in
not raising that claim on direct appeal. The District Court found that
his ineffective-assistance-of-counsel claim was cause excusing the proce-
dural default of his sufficiency-of-the-evidence claim because Rule 26(B)
was not an adequate procedural ground to bar federal review of the
ineffective-assistance claim; concluded that respondent’s appellate coun-
sel was constitutionally ineffective; and granted the writ conditioned on
the state appellate court’s reopening of respondent’s direct appeal of the
sufficiency-of-the-evidence claim. On cross-appeals, the Sixth Circuit
held that the ineffective-assistance claim served as cause to excuse the
default of the sufficiency-of-the-evidence claim, whether or not the for-
mer claim had been procedurally defaulted, because respondent had
exhausted the ineffective-assistance claim by presenting it to the state
courts in his application to reopen the direct appeal. Finding preju-
dice from counsel’s failure to raise the sufficiency-of-the-evidence claim
on direct appeal, it directed the District Court to issue the writ con-
ditioned upon the state court’s according respondent a new culpability
hearing.
Held: A procedurally defaulted ineffective-assistance claim can serve as
cause to excuse the procedural default of another habeas claim only if
the habeas petitioner can satisfy the “cause and prejudice” standard
with respect to the ineffective-assistance claim itself. The procedural

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Syllabus
default doctrine and its attendant “cause and prejudice” standard are
grounded in comity and federalism concerns, Coleman v. Thompson,
501 U. S. 722, 730, and apply whether the default occurred at trial, on
appeal, or on state collateral attack, Murray v. Carrier, 477 U. S. 478,
490–492. Thus, a prisoner must demonstrate cause for his state-court
default of any federal claim, and prejudice therefrom, before the fed-
eral habeas court will consider that claim’s merits. 501 U. S., at 750.
Counsel’s ineffectiveness in failing properly to preserve a claim for
state-court review will suffice as cause, but only if that ineffectiveness
itself constitutes an independent constitutional claim. Carrier, supra,
at 488–499. The comity and federalism principles underlying the doc-
trine of exhaustion of state remedies require an ineffective-assistance
claim to be presented to the state courts as an independent claim before
it may be used to establish cause for a procedural default. Carrier,
supra, at 489. The doctrine’s purposes would be frustrated if federal
review were available to a prisoner who had presented his claim in state
court, but in such a manner that the state court could not, under its
procedural rules, have entertained it. Pp. 450–454.
163 F. 3d 938, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ.,
joined. Breyer, J., filed an opinion concurring in the judgment, in which
Stevens, J., joined, post, p. 454.
Edward B. Foley, State Solicitor of Ohio, argued the cause
for petitioner. With him on the briefs were Betty D. Mont-
gomery, Attorney General, David M. Gormley, and Stephen
P. Carney.
J. Joseph Bodine, Jr., argued the cause for respondent.
With him on the brief were David H. Bodiker, Laurence E.
Komp, and Angela Wilson Miller.*
*A brief of amici curiae urging reversal was filed for the State of Texas
et al. by John Cornyn, Attorney General of Texas, Andy Taylor, First
Assistant Attorney General, Shane Phelps, Deputy Attorney General for
Criminal Justice, Gregory S. Coleman, Solicitor General, Idolina G. Mc-
Cullough, Assistant Solicitor General, Michael E. McLachlan, Solicitor
General of Colorado, and John M. Bailey, Chief State’s Attorney of Con-
necticut, and by the Attorneys General for their respective States as fol-
lows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of
Arkansas, Janet Napolitano of Arizona, Bill Lockyer of California, Ken

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448 EDWARDS v. CARPENTER
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
This case presents the question whether a federal habeas
court is barred from considering an ineffective-assistance-
of-counsel claim as “cause” for the procedural default of an-
other claim when the ineffective-assistance claim has itself
been procedurally defaulted.
I
Respondent was indicted by an Ohio grand jury for aggra-
vated murder and aggravated robbery. He entered a guilty
plea while maintaining his innocence—a procedure we held
to be constitutional in North Carolina v. Alford, 400 U. S.
25 (1970)—in exchange for the prosecution’s agreement that
the guilty plea could be withdrawn if the three-judge panel
that accepted it elected, after a mitigation hearing, to im-
pose the death penalty. The panel accepted respondent’s
plea based on the prosecution’s recitation of the evidence
supporting the charges and, following a mitigation hearing,
sentenced him to life imprisonment with parole eligibility
after 30 years on the aggravated-murder count and to a con-
current term of 10 to 25 years on the aggravated-robbery
count. On direct appeal respondent, represented by new
counsel, assigned only the single error that the evidence
offered in mitigation established that he should have been
Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth
of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jef-
frey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of
Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Mary-
land, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W.
(Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of
Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of
New Hampshire, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid
of New Mexico, W. A. Drew Edmondson of Oklahoma, Charles M. Condon
of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of
Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Chris-
tine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia,
and James E. Doyle of Wisconsin.

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eligible for parole after 20 rather than 30 years. The Ohio
Court of Appeals affirmed, and respondent did not appeal
to the Ohio Supreme Court.
After unsuccessfully pursuing state postconviction relief
pro se, respondent, again represented by new counsel, filed
an application in the Ohio Court of Appeals to reopen his
direct appeal, pursuant to Ohio Rule of Appellate Proce-
dure 26(B),1 on the ground that his original appellate coun-
sel was constitutionally ineffective in failing to raise on di-
rect appeal a challenge to the sufficiency of the evidence.
The appellate court dismissed the application because re-
spondent had failed to show, as the rule required, good cause
for filing after the 90-day period allowed.2 The Ohio Su-
preme Court, in a one-sentence per curiam opinion, affirmed.
State v. Carpenter, 74 Ohio St. 3d 408, 659 N. E. 2d 786 (1996).
On May 3, 1996, respondent filed a petition for writ of ha-
beas corpus in the United States District Court for the
Southern District of Ohio, alleging, inter alia, that the evi-
dence supporting his plea and sentence was insufficient, in
violation of the Fifth and Fourteenth Amendments, and
that his appellate counsel was constitutionally ineffective
in failing to raise that claim on direct appeal. Concluding
that respondent’s sufficiency-of-the-evidence claim was pro-
cedurally defaulted, the District Court considered next
whether the ineffective-assistance-of-counsel claim could
1 Rule 26(B) provides, in relevant part:
“(1) A defendant in a criminal case may apply for reopening of the ap-
peal from the judgment of conviction and sentence, based on a claim of
ineffective assistance of appellate counsel. An application for reopening
shall be filed in the court of appeals where the appeal was decided within
ninety days from journalization of the appellate judgment unless the appli-
cant shows good cause for filing at a later time.”
2 Respondent filed his application to reopen on July 15, 1994. Although
Rule 26(B) did not become effective until July 1, 1993, more than two years
after respondent’s direct appeal was completed, the Court of Appeals con-
sidered respondent’s time for filing to have begun on the Rule’s effective
date and to have expired 90 days thereafter.

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serve as cause excusing that default. The District Court
acknowledged that the ineffective-assistance claim had been
dismissed on procedural grounds, but concluded that Rule
26(B)’s inconsistent application by the Ohio courts rendered
it inadequate to bar federal habeas review. See Ford v.
Georgia, 498 U. S. 411, 423–424 (1991) (state procedural de-
fault is not an “independent and adequate state ground”
barring subsequent federal review unless the state rule was
“ ‘firmly established and regularly followed’ ” at the time it
was applied). Proceeding to the merits of the ineffective-
assistance claim, the District Court concluded that respond-
ent’s appellate counsel was constitutionally ineffective under
the test established in Strickland v. Washington, 466 U. S.
668 (1984), and granted the writ of habeas corpus condi-
tioned on the state appellate court’s reopening of respond-
ent’s direct appeal of the sufficiency-of-the-evidence claim.
On cross-appeals, the United States Court of Appeals
for the Sixth Circuit held that respondent’s ineffective-
assistance-of-counsel claim served as “cause” to excuse the
procedural default of his sufficiency-of-the-evidence claim,
whether or not the ineffective-assistance claim itself had
been procedurally defaulted. Carpenter v. Mohr, 163 F. 3d
938 (CA6 1998). In the panel’s view, it sufficed that re-
spondent had exhausted the ineffective-assistance claim by
presenting it to the state courts in his application to re-
open the direct appeal, even though that application might,
under Ohio law, have been time barred. Finding in addi-
tion prejudice from counsel’s failure to raise the sufficiency-
of-the-evidence claim on direct appeal, the Sixth Circuit di-
rected the District Court to issue the writ of habeas corpus
conditioned upon the state court’s according respondent a
new culpability hearing. We granted certiorari. 528 U. S.
985 (1999).
II
Petitioner contends that the Sixth Circuit erred in fail-
ing to recognize that a procedurally defaulted ineffective-

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assistance-of-counsel claim can serve as cause to excuse the
procedural default of another habeas claim only if the ha-
beas petitioner can satisfy the “cause and prejudice” stand-
ard with respect to the ineffective-assistance claim itself.
We agree.
The procedural default doctrine and its attendant “cause
and prejudice” standard are “grounded in concerns of comity
and federalism,” Coleman v. Thompson, 501 U. S. 722, 730
(1991), and apply alike whether the default in question oc-
curred at trial, on appeal, or on state collateral attack, Mur-
ray v. Carrier, 477 U. S. 478, 490–492 (1986). “[A] habeas
petitioner who has failed to meet the State’s procedural re-
quirements for presenting his federal claims has deprived
the state courts of an opportunity to address those claims in
the first instance.” Coleman, 501 U. S., at 732. We there-
fore require a prisoner to demonstrate cause for his state-
court default of any federal claim, and prejudice therefrom,
before the federal habeas court will consider the merits of
that claim. Id., at 750. The one exception to that rule, not
at issue here, is the circumstance in which the habeas peti-
tioner can demonstrate a sufficient probability that our fail-
ure to review his federal claim will result in a fundamental
miscarriage of justice. Ibid.
Although we have not identified with precision exactly
what constitutes “cause” to excuse a procedural default,
we have acknowledged that in certain circumstances coun-
sel’s ineffectiveness in failing properly to preserve the claim
for review in state court will suffice. Carrier, 477 U. S., at
488–489. Not just any deficiency in counsel’s performance
will do, however; the assistance must have been so ineffec-
tive as to violate the Federal Constitution. Ibid. In other
words, ineffective assistance adequate to establish cause
for the procedural default of some other constitutional claim
is itself an independent constitutional claim. And we held
in Carrier that the principles of comity and federalism
that underlie our longstanding exhaustion doctrine—then as

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now codified in the federal habeas statute, see 28 U. S. C.
§§ 2254(b), (c)—require that constitutional claim, like others,
to be first raised in state court. “[A] claim of ineffective
assistance,” we said, generally must “be presented to the
state courts as an independent claim before it may be used
to establish cause for a procedural default.” Carrier, supra,
at 489.
The question raised by the present case is whether Car-
rier’s exhaustion requirement for claims of ineffective as-
sistance asserted as cause is uniquely immune from the
procedural-default rule that accompanies the exhaustion re-
quirement in all other contexts—whether, in other words, it
suffices that the ineffective-assistance claim was “presented”
to the state courts, even though it was not presented in the
manner that state law requires. That is not a hard question.
An affirmative answer would render Carrier’s exhaustion
requirement illusory.3
We recognized the inseparability of the exhaustion rule
and the procedural-default doctrine in Coleman: “In the
absence of the independent and adequate state ground doc-
trine in federal habeas, habeas petitioners would be able to
avoid the exhaustion requirement by defaulting their federal
claims in state court. The independent and adequate state
3 Last Term, in a per curiam summary reversal, we clearly expressed
the view that a habeas petitioner must satisfy the “cause and prejudice”
standard before his procedurally defaulted ineffective-assistance claim
will excuse the default of another claim. Stewart v. LaGrand, 526 U. S.
115, 120 (1999). Respondent contends that we are not bound by LaGrand
because in that case the habeas petitioner had waived his ineffective-
assistance claim in the District Court, thereby rendering our procedural
default discussion dicta, and because, in any event, per curiam opinions
decided without the benefit of full briefing or oral argument are of little
precedential value. Whether our procedural default analysis in LaGrand
is properly characterized as dictum or as alternative holding, and what-
ever the precedential value of a per curiam opinion, the ease with which
we so recently resolved this identical question reflects the degree to which
the proper resolution flows irresistibly from our precedents.

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ground doctrine ensures that the States’ interest in correct-
ing their own mistakes is respected in all federal habeas
cases.” 501 U. S., at 732. We again considered the inter-
play between exhaustion and procedural default last Term in
O’Sullivan v. Boerckel, 526 U. S. 838 (1999), concluding that
the latter doctrine was necessary to “ ‘protect the integrity’
of the federal exhaustion rule.” Id., at 848 (quoting id., at
853 (Stevens, J., dissenting)). The purposes of the exhaus-
tion requirement, we said, would be utterly defeated if the
prisoner were able to obtain federal habeas review simply
by “ ‘letting the time run’ ” so that state remedies were no
longer available. Id., at 848. Those purposes would be no
less frustrated were we to allow federal review to a prisoner
who had presented his claim to the state court, but in such a
manner that the state court could not, consistent with its
own procedural rules, have entertained it. In such circum-
stances, though the prisoner would have “concededly ex-
hausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a
“fair ‘opportunity to pass upon [his claims].’ ” Id., at 854
(Stevens, J., dissenting) (emphasis added) (quoting Darr v.
Burford, 339 U. S. 200, 204 (1950)).
To hold, as we do, that an ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of an-
other claim can itself be procedurally defaulted is not to say
that that procedural default may not itself be excused if
the prisoner can satisfy the cause-and-prejudice standard
with respect to that claim. Indeed, the Sixth Circuit may
well conclude on remand that respondent can meet that
standard in this case (although we should note that respond-
ent has not argued that he can, preferring instead to argue
that he does not have to). Or it may conclude, as did the
District Court, that Ohio Rule of Appellate Procedure 26(B)
does not constitute an adequate procedural ground to bar
federal habeas review of the ineffective-assistance claim.
We express no view as to these issues, or on the question

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Breyer, J., concurring in judgment
whether respondent’s appellate counsel was constitutionally
ineffective in not raising the sufficiency-of-the-evidence claim
in the first place.
* * *
For the foregoing reasons, the judgment of the Court of
Appeals for the Sixth Circuit is reversed, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Breyer, with whom Justice Stevens joins,
concurring in the judgment.
I believe the Court of Appeals correctly decided the basic
question: “Whether a federal habeas court is barred from
considering an ineffective-assistance-of-counsel claim as
‘cause’ for the procedural default of another claim when
the ineffective-assistance claim is itself procedurally de-
faulted.” The question’s phrasing itself reveals my basic
concern. Although the question, like the majority’s opin-
ion, is written with clarity, few lawyers, let alone unrep-
resented state prisoners, will readily understand it. The
reason lies in the complexity of this Court’s habeas corpus
jurisprudence—a complexity that in practice can deny the
fundamental constitutional protection that habeas corpus
seeks to assure. Today’s decision unnecessarily adds to that
complexity and cannot be reconciled with our consistent rec-
ognition that the determination of “cause” is a matter for the
federal habeas judge.
To explain why this is so, and at the risk of oversimplifi-
cation, I must reiterate certain elementary ground rules. A
federal judge may issue a writ of habeas corpus freeing a
state prisoner, if the prisoner is “in custody in violation of
the Constitution or laws or treaties of the United States.”
28 U. S. C. § 2254(a). However, the judge may not issue the
writ if an adequate and independent state-law ground justi-
fies the prisoner’s detention, regardless of the federal claim.

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See Wainwright v. Sykes, 433 U. S. 72, 81–88 (1977). One
“state ground” often asserted as an adequate, independent
basis for holding a state prisoner in custody is a state-law
“procedural default,” such as the prisoner’s failure to raise
his federal claim at the proper time. However, under cer-
tain conditions the State’s assertion of such a ground is
not “adequate” (and consequently does not bar assertion of
the federal-law claim). There are three situations in which
an otherwise valid state ground will not bar federal claims:
(1) where failure to consider a prisoner’s claims will result
in a “fundamental miscarriage of justice,” Coleman v.
Thompson, 501 U. S. 722, 750 (1991); (2) where the state
procedural rule was not “ ‘firmly established and regularly
followed,’ ” Ford v. Georgia, 498 U. S. 411, 423–424 (1991);
James v. Kentucky, 466 U. S. 341, 348–349 (1984); and
(3) where the prisoner had good “cause” for not following
the state procedural rule and was “prejudice[d]” by not
having done so, Sykes, supra, at 87.
Ordinarily, a federal habeas judge, while looking to state
law to determine the potential existence of a procedural
ground that might bar consideration of the prisoner’s fed-
eral claim, decides whether such a ground is adequate as a
matter of federal law. See Ford, supra; James, supra; Cole-
man, supra. Thus the Court has applied federal standards
to determine whether there has been a “fundamental mis-
carriage of justice.” See, e. g., Schlup v. Delo, 513 U. S. 298,
314–317 (1995). And the Court has also looked to state
practice to determine the factual circumstances surround-
ing the application of a state procedural rule, while deter-
mining as a matter of federal law whether that rule is “firmly
established [and] regularly followed.” Ford, supra, at 424–
425. Federal habeas courts would normally determine
whether “cause and prejudice” excuse a “procedural default”
in the same manner. Murray v. Carrier, 477 U. S. 478, 489
(1986) (“[T]he question of cause” is “a question of federal
law”).

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If I could stop here, the rules would be complicated, but
still comprehensible. The federal habeas judge would look
to state law and state practice to determine the facts and
circumstances surrounding a state procedural rule that the
State claims is an “adequate and independent state ground.”
However, the federal judge would determine the adequacy
of that “state ground” as a matter of federal law.
Unfortunately, the rules have become even more com-
plex. In Carrier, the Court considered a prisoner’s conten-
tion that he had “cause” for failing to follow a state proce-
dural rule—a rule that would have barred his federal claim.
The “cause,” in the prisoner’s view, was that his lawyer (who
had failed to follow the state procedural rule) had performed
inadequately. This Court determined, as a matter of federal
law, that only a performance so inadequate that it violated
the defendant’s Sixth Amendment right to effective assist-
ance of counsel could amount to “cause” sufficient to over-
come a “procedural default.” Id., at 488–489. That being
so, the Court reasoned, the prisoner should have to exhaust
the ineffectiveness claim in state court. The Court wrote:
“[I]f a petitioner could raise his ineffective assistance
claim for the first time on federal habeas in order to
show cause for a procedural default, the federal habeas
court would find itself in the anomalous position of adju-
dicating an unexhausted constitutional claim for which
state court review might still be available.” Id., at 489.
And today the Court holds not only that the prisoner must
exhaust this claim by presenting it to the state courts, but
also that his failure to do so properly, i. e., a failure to comply
with the State’s rules for doing so, bars that prisoner from
ever asserting that claim as a “cause” for not having com-
plied with state procedural rules.
The opinion in Carrier raises a special kind of “exhaus-
tion” problem. The Court considered a type of “cause” (“in-

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Breyer, J., concurring in judgment
effective assistance”) for not following the state procedural
rule that happened itself independently to constitute a viola-
tion of the Federal Constitution. After all, were the pris-
oner to prove his claim (i. e., show “ineffective assistance”),
the State might want to take action first. Ordinary exhaus-
tion rules assure States an initial opportunity to pass upon
claims of violation of the Federal Constitution. Why should
a State not have a similar opportunity in this situation? As
the Carrier Court pointed out, it would be “anomalous” for
a federal habeas court to “adjudicat[e] an unexhausted con-
stitutional claim for which state court review might still be
available.” Ibid.
The anomaly disappears, however, once the prisoner has
exhausted his “ineffective-assistance” claim (which appeared
in the guise of a “cause”). And there is no other anomaly
that requires the majority’s result. Once a claim of in-
effective assistance of counsel has been exhausted—either
through presentation in the state courts or through proce-
dural default—there is no difference between that claim
and any other claim of “cause” for the prisoner’s original
procedural default. The federal habeas court is no longer
in the “anomalous position” of considering as cause an in-
dependent claim that might yet be considered by the state
courts, for there is no longer any possibility that the state
courts will consider the claim. There is thus no more reason
to hold that procedural default of an ineffective-assistance
claim bars the prisoner from raising that ineffective-
assistance claim as a “cause” (excusing a different proce-
dural default asserted as a bar to a basic constitutional claim)
than there is to bar any other claim of “cause” on grounds
of procedural default. The majority creates an anomaly; it
does not cure one.
The added complexity resulting from the Court’s opinion is
obvious. Consider a prisoner who wants to assert a federal
constitutional claim (call it FCC). Suppose the State asserts

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as a claimed “adequate and independent state ground” the
prisoner’s failure to raise the matter on his first state-court
appeal. Suppose further that the prisoner replies by alleg-
ing that he had “cause” for not raising the matter on appeal
(call it C). After Carrier, if that alleged “cause” (C) consists
of the claim “my attorney was constitutionally ineffective,”
the prisoner must have exhausted C in the state courts first.
And after today, if he did not follow state rules for present-
ing C to the state courts, he will have lost his basic claim,
FCC, forever. But, I overstate. According to the opinion
of the Court, he will not necessarily have lost FCC forever
if he had “cause” for not having followed those state rules
(i. e., the rules for determining the existence of “cause” for
not having followed the state rules governing the basic
claim, FCC) (call this “cause” C*). Ante, at 453. The pris-
oner could therefore still obtain relief if he could demon-
strate the merits of C*, C, and FCC.
I concede that this system of rules has a certain logic, in-
deed an attractive power for those who like difficult puzzles.
But I believe it must succumb to this question: Why should
a prisoner, who may well be proceeding pro se, lose his basic
claim because he runs afoul of state procedural rules gov-
erning the presentation to state courts of the “cause” for
his not having followed state procedural rules for the pre-
sentation of his basic federal claim? And, in particular,
why should that special default rule apply when the “cause”
at issue is an “ineffective-assistance-of-counsel” claim, but
not when it is any of the many other “causes” or circum-
stances that might excuse a failure to comply with state
rules? I can find no satisfactory answer to these questions.
I agree with the majority, however, that this case must be
returned to the Court of Appeals. Although the prisoner’s
“ineffective-assistance” claim is not barred, he still must
prove that the “assistance” he received was “ineffective”
(or some other “cause”). And, if he does so, he still must
prove his basic claim that his trial violated the Federal Con-

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stitution—all before he can secure habeas relief. I would
remand for consideration of these matters.
For these reasons, I concur in the judgment.