George L. Reynolds v. Jack C. Ellingsworth, Warden Charles M. Oberly, III

OPINION OF THE COURT

STAPLETON, Circuit Judge:

This appeal requires us to consider the situation of a criminal defendant whose lawyers make a tactical decision not to raise federal due process objections in the defendant’s state trial or on state direct appeal, and do so under circumstances in which they could have a good faith expectation that the defendant would be able to raise these federal objections in state collateral review proceedings. The issue we address is whether the rule of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), bars such a defendant from later raising his…