United States v. McPhail

I respectfully dissent from the court’s refusal to hear this case en banc. If the panel opinion is to be taken as binding law in this circuit, it stands as the first decision of this court to hold that a habeas corpus petitioner may successfully raise, on appeal, an issue he *327did not bring first to the attention of the federal habeas district court. That is a remarkable proposition that should be welcome news to habeas petitioners in this circuit and anathema to the United States and to the three states in this circuit. If we are to install so startling a rule, we should do so only after full…