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The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of a known right. Even when, 2 years later, in Heny v. Mississippi, the Warren Court ruled that state procedural defaults could bar post-conviction state review as well as direct Supreme Court review of a federal claim, it left open the Fay avenue to federal habeas relief.

But the Warren Court left several crucial questions unresolved for lower courts. Did the defendant or the attorney control the defense case for the purposes of habeas law? If counsel's decision not to raise a constitutional claim by objecting at trial could eliminate the defendant's right to get all state post-conviction review and direct review by the Court, could that decision also ever eliminate the defendant's right to federal habeas review of the claim? If so, were there nonetheless certain federal rights that only the defendant could waive before federal habeas review would be barred? If counsel's decision could bind the client, what sort of decision did counsel have to make? Could the attorney's decision not to object to a constitutional infringement bind the client even if the attorney had failed to research the relevant law, or investigate the facts, or appreciate the relationship of the law to the facts? Could the defense counsel bind the defendant if the counsel did not even know an objection was possible? Could the defendant challenge the competency of the counsel's decision, even if that decision barred all review of the merits of the issue counsel did not raise? Which side--the defense or the government--had the burdens of production and persuasion on deliberate bypass?

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31 Stan. L. Rev. 1-67 (1978)