Willis Leroy v. R.C. Marshall, Supt.

ENGEL, Circuit Judge.

The issue in this habeas corpus appeal is whether the failure of a defendant’s state trial counsel to include a given constitutional issue among those issues raised in his direct appeal to the state’s appellate courts evokes the “deliberate by-pass” rule of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) or the “cause and prejudice” rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). 1 We hold that the “cause and prejudice” rule applies to this procedural default, and affirm the judgment of the district court upon this alternative…