Randall S. Whitmore v. David Avery, Superintendent, Community Corrections Center

LOKEN, Circuit Judge.

The State appeals the grant of Nebraska inmate Randall S. Whitmore’s petition for a writ of habeas corpus. The district court held that the Nebraska trial court violated Whitmore’s Sixth Amendment right to the effective assistance of counsel when it failed to inquire whether Whitmore had waived his trial counsel’s obvious conflict of interest. The State argues that the district court erred in excusing Whitmore’s procedural default of this claim under the “fundamental miscarriage of justice” exception to the cause and prejudice standard. See Coleman v. Thompson, 501 U.S.…