Concurring.
I concur in the result and the reasoning of the majority, except for the holding that the procedural default rule bars Cousin’s habeas claims. As I read the record, Cousin did not default. The state appeals court based its ruling that Cousin defaulted on a factual finding that he had failed to file a corrected state petition after his original petition failed to comply with Arizona Rule of Criminal Procedure 32.9.1 In actuality, the state docket demonstrates that a corrected petition was filed. This removes the necessary factual predicate for the state court’s ruling. See 28 U.S.C. § 2254(d)(8) (1995) (presumption of correctness that applies to state court factual findings is overcome where not fairly supported by the record); Francois v. Wainright, 741 F.2d 1275, 1280-81 (11th Cir.1984) (analyzing a state record under the presumption of correctness to determine whether a procedural default took place).2
Given the state court’s erroneous factual finding, I would hold that Cousin’s petition is not procedurally barred. The Supreme Court has explained that although a constitutional protection may be denied on state grounds, “it is the province of [federal courts] to inquire whether the decision of the state court rests upon a fair or substantial basis. If unsubstantial, constitutional obligations may not be thus avoided.” Lawrence v. State Tax Comm’n, 286 U.S. 276, 282, 52 S.Ct. 556, 76 L.Ed. 1102 (1932). For this reason, we only apply the procedural default rule where the state rule is both independent and adequate. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Ford v. Georgia, 498 U.S. 411, 422-25, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991).
Here, the state court’s finding of default was not adequate because it was not supported by the factual record. See Upshaw v. Singletary, 70 F.3d 576, 580 (11th Cir.1995) (“Because the state court’s denial of the [habeas petitioner’s] claim was inconsistent [with state law] and manifestly unfair, the denial did not provide an adequate ground to preclude federal review.”); Williams v. Lane, 826 F.2d 654, 660 (7th Cir.1987) (“[W]here the [state] court chooses to ignore the fact that the petitioner has fully complied with the state’s articulated procedural rules and simply deems the petitioner’s claim waived .... [the state court’s] determination of waiver ... does not rest on an independent and adequate state procedural ground and consequently does not preclude federal habeas review.”) (citation omitted); see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986) (the federal court “must determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed to .comply with the rule.”); Silverstein v. Henderson, 706 F.2d 361, 367 n. 11 (2d Cir.1983) (“[A]n unsupported or manipulative finding of procedural default would not constitute an adequate state ground barring federal habeas relief.”) (dicta).
*49The majority relies on the Supreme Court’s statement in Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” The issue in Estelle was whether habeas relief could be granted for a state court’s erroneous application of state law, and the Court held that it could not. This holding says nothing about application of the procedural default rule. It in no way undermines a federal court’s ability to review whether a state court ruling is independent and adequate.
The majority also relies on Stewart v. Smith, 534 U.S. 157, 122 S.Ct. 1143, 151 L.Ed.2d 592 (2001), and Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (Ariz.2002), which stand for the proposition that Arizona Rule of Criminal Procedure 32.9 is an independent state ground. Fair enough. But independence and adequacy are different things. Here, the state’s reliance on its procedural rale was inadequate. I would reach the merits of Cousin’s habeas petition.
Nonetheless, I arrive at the same result as my respected colleagues. Cousin, a pre-AEDPA petitioner, is not entitled to habeas relief. Even if his claims of error are valid, such errors did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quotation marks and citation omitted). Thus, I concur in the majority’s judgment.
. The district court found that the state court had failed to consider Cousin’s corrected petition. We review the district court’s finding for clear error. Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). Where, as here, there are two permissible views of the evidence, we cannot say the court’s choice was clearly erroneous. Id. at 226, 108 S.Ct. 1771.
. The 1995 version of § 2254 applies to Cousin because he filed his petition prior to the effective date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA).