Clifford W. Carrier v. Terrell D. Hutto, Director of the Virginia Department of Corrections

Flim-flam is too harsh a term, so I will instead say that defense counsel has persuaded the majority to consider on appeal a case entirely different from the one below. What was once an issue under Jencks v. United States,1 defense counsel has now turned into an issue under Brady v. Maryland.2 In addition, I do not agree with the majority that this case may fall under the “cause and prejudice” exception to the rule promulgated in Sykes v. Wainwright3 nor do I agree that exhaustion of state remedies is inappropriate in this case. I therefore dissent.

I

By indicating that petitioner may find…