Cyril Edwards v. E.W. Jones, Superintendent, Great Meadows Correctional Facility and Robert Abrams, Attorney General of the State of New York

I concur in the result, but write separately to express my respectful disagreement with what I believe is an ill-advised application of the forfeiture rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In this Circuit we have been confronted with a series of habeas corpus petitions submitted to district courts after criminal convictions have been affirmed by New York state courts without opinion. Until today we have been willing to hold that silent affirmance by the state courts implies reliance on a state law procedural default only when the defendant in the…