dissenting in part, concurring in part:
William Andrews was convicted of three counts of murder in the first degree and two counts of aggravated robbery in one of the most highly publicized and racially inflammatory trials in the history of the State of Utah. The petitioner, who was nineteen years old at the time of the crimes, faced, and ultimately received, the death penalty. Yet the State of Utah appointed an attorney barely one year out of law school to represent him. The only eyewitness able to testify at trial indicated that Mr. Andrews was not present at the time of the shootings, the official cause of death of each of the three victims. Nor was he present when one of the co-defendants raped a seventeen-year-old victim, attempted to choke the eyewitness with a rope, and later stomped a pen into his ear. The eyewitness not only related that Mr. Andrews did not administer caustic fluid to any of the victims, though he did witness Mr. Andrews pour the first glass from a covered container, but that he twice heard Mr. Andrews protest to the co-defendant, “I can’t do it, I’m scared.” Tr. at 3183.
Seventeen years after petitioner’s conviction, this court is presented for the first time with an opportunity to address whether the trial court’s failure to instruct the jury on the lesser included offense of second degree murder was constitutional error. Petitioner also asks that we address the failings of counsel at trial and on direct review nearly two decades after his performance. The majority, justifiably concerned with the length of time between petitioner’s conviction and this appeal, concludes that Mr. Andrews now faces too many barriers to obtain relief. Because I believe that petitioner clears those barriers asserted by the state, and that we have no authority to visit sua sponte those barriers not asserted by the state, I file' this separate opinion dissenting in part and concurring in part. I address, in turn, petitioner’s claims of ineffective assistance of counsel and the absence of a lesser included offense instruction of second degree murder. I also concur with the result, but not the reasoning, of the majority’s analysis of petitioner’s claim under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). I finally concur with the majority’s thorough and well-reasoned analysis of the remainder of petitioner’s claims.
INEFFECTIVE ASSISTANCE OF COUNSEL
At trial and on direct appeal to the Utah Supreme Court, petitioner was represented solely by the junior member of the public defender’s office who had graduated from law school less than one year prior to his assignment to the case. He apparently had no experience in capital cases or in any serious felony prosecution.
At trial, the jury heard the testimony of a co-worker of petitioner. He claimed that in a morning conversation some two months before the crime, petitioner stated: “One of these days I would like to rob a hi fi shop and if anybody gets in my way I will kill them.” Tr. at 1549. Yet when the co-worker first contacted the police, petitioner argues here, the co-worker reported that he had overheard both petitioner and co-defendant Selby talking about robbing a hi-fi shop. He never reported that they contemplated killing anyone. Several charges were pending against the co-worker at the time of trial. In addition, his wife was a friend of one of the victims. Petitioner’s counsel did not bring this to the attention of the jury.
At the sentencing phase, petitioner’s counsel did not present any mitigating witnesses. And on appeal, counsel presented a seven-page brief containing only one incomplete and inaccurate case citation. While petitioner’s counsel joined in some, but not all, of co-defendant’s arguments, he made no argument special to petitioner’s case.
Petitioner asserts that he was denied effective assistance of counsel both at trial and on appeal due to his appointed trial lawyer’s inexperience and failure to effectively present a defense. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He seeks an *1198evidentiary hearing on this claim, which was denied in the state proceeding.
Petitioner lists the following errors by counsel at trial and on appeal:
(1) Counsel failed to interview petitioner’s co-worker, a principal witness against his client, or to discover the inconsistent statement he had made when he was first contacted by the police.
(2) Counsel failed to cross-examine the eyewitness using his testimony at a preliminary hearing to demonstrate the several significant ways in which his trial testimony magnified petitioner’s apparent role in the crime.
(3) Counsel did not prepare for the penalty phase by contacting witnesses to demonstrate the deprivations that Mr. Andrews suffered as a child. Nor did he request that his client undergo psychological examinations or investigate his client’s background or schooling to discover that his client was a lifelong follower whose childhood IQ tests placed him in the range of mental retardation.
(4) On appeal, counsel filed a brief that totalled seven pages and contained a single and inaccurate citation of authority. The brief erroneously states that both petitioner and co-defendant “were administering the caustic fluid.” It fails to note that petitioner twice refused his co-defendant’s orders, saying “I can’t do it, I’m scared.” It does not address petitioner’s limited participation in the binding of the eyewitness or another victim nor address the taping of the victims’ mouths.
(5) Counsel joined in eight of the arguments presented by his co-defendant on appeal without even seeing the brief. Yet counsel inexplicably failed to join in the lesser included offense argument.
(6) Counsel mentioned no mitigating evidence on appeal. Nor did he make argument to the disproportionate sentence.
1. State Procedural Bar
Before reaching the merits of petitioner’s claim of ineffective assistance of counsel, the majority concludes that the Utah Supreme Court’s invocation of its successive habeas petition provision, Utah Rule 65B(i)(4), precludes this court from entertaining petitioner’s claim. Federal habeas review of a defaulted federal claim is precluded only when the state court has disposed of the claim on a procedural ground “that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989). Under Rule 65B(i)(4), all claims relating to a denial of the complainant’s constitutional rights must be raised in the initial post-conviction proceeding “and may not be raised in another subsequent proceeding except for good cause shown.” Utah R.Civ.P. 65B(i)(4). As the majority notes, the Utah Supreme Court invoked this procedural bar to preclude review of petitioner’s ineffective assistance of counsel claim. This court may hear petitioner’s claim of ineffective assistance of counsel, therefore, only upon a showing of “cause” for the procedural default and “prejudice” attributable thereto. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977).
Because petitioner’s trial counsel represented him both on direct appeal and in the first state post-conviction proceeding, I believe that petitioner has demonstrated sufficient cause for his procedural default in the state proceeding. In Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court surmised that “[bjecause collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused’s right to effective representation.” Id. at 378, 106 S.Ct. at 2584. This court therefore has in the past circumvented a state procedural rule and held that where “the allegedly ineffective counsel handled both the trial level proceedings and the direct appeal, a petitioner may raise an ineffective assistance of counsel claim for the first time collaterally.” Osborn v. Shillinger, 861 F.2d 612, 623 (10th Cir.1988). See also Hopkinson v. Shillinger, 866 F.2d 1185, 1203 n. 12 (10th Cir.1989) *1199(adhered to by split decision on rehearing en banc in Hopkinson v. Shillinger, 888 F.2d 1286 (10th Cir.1989). We reasoned that because it is unfair to “expect counsel in that situation to attempt to prove their own ineompetency, there is good cause for the issue not having been raised until after the direct appeal.” Hopkinson, 866 F.2d at 1203-04 n. 12 (citing Alston v. Garrison, 720 F.2d 812, 816 (4th Cir.1983), cert. denied, 468 U.S. 1219, 104 S.Ct. 3589, 82 L.Ed.2d 886 (1984)).
I believe the same rationale applies to counsel representing the defendant on collateral review. As did the Eleventh Circuit when evaluating similar facts in Stephens v. Kemp, 846 F.2d 642, 651 (11th Cir.), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988), I “find ‘cause’ for petitioner’s failure to raise the ineffective assistance issue in his first state habeas petition in the fact that petitioner’s trial counsel, whose effectiveness is here challenged, also represented him in the first state habe-as proceeding.”1
In so finding, I cannot concur with the majority’s assessment that, even if the state’s default rule does not apply to petitioner’s first state collateral proceeding, the claim should have been raised in what it fashions as his second state collateral proceeding.2 The federal district court stayed the proceeding in petitioner’s first habeas petition only to permit him to seek collateral relief in the Utah Supreme Court on the retroactive application to his case of that court’s decision in State v. Wood, 648 P.2d 71 (Utah 1981), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982). See Andrews v. Morris, 677 P.2d 81 (Utah 1983). The proceeding in the state court, limited to this sole issue, cannot fairly be characterized as a second state post-conviction petition. Cf. Fernandez v. Cook, 783 P.2d 547, 550 n. 3 (Utah 1989) (failure to ask Utah Supreme Court to act in its “discretion” to hear argument not otherwise properly before it insufficient to foreclose argument in subsequent proceeding). Petitioner was not authorized to raise any issue before the state court other than the one remanded by the federal district court.3 Any insinuation by the majority to the contrary is gravely in error.
Even if I were to conclude that representation of petitioner by the same counsel on *1200collateral review as at trial and on direct review did not establish “cause” to bypass the state procedural default rule, however, I believe that the Utah Supreme Court’s inconsistent application of its procedural bar rule to ineffective assistance of counsel claims allows a petitioner to assert the merits of his claim in federal court. As the majority readily recognizes, a state’s application of a procedural bar is inadequate unless it is “ ‘strictly or regularly followed.’ ” Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988) (citation omitted) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982)). Only a “firmly established and regularly followed state practice” may be interposed by a state court to preclude federal review of a constitutional claim. James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 1835, 80 L.Ed.2d 346 (1984). In Dunn v. Cook, 791 P.2d 873 (Utah 1990), and Fernandez v. Cook, 783 P.2d 547 (Utah 1989), the Utah Supreme Court excused a defendant’s failure to raise a claim of ineffective assistance of counsel because the defendant was represented by the same allegedly ineffective attorney at the subsequent proceeding in which he would otherwise be required to raise the claim. The crux of each decision was not the stage of the proceeding at which new counsel for the first time appeared, the position to which the majority points to distinguish the relevant precedent, but that at all prior hearings the defendant was represented by the same counsel that is now alleged to have been ineffective. Dunn, 791 P.2d at 878; Fernandez, 783 P.2d at 551. Indeed, the firmly established and regularly followed state practice appears to be that a defendant is excused from raising an ineffective assistance of counsel claim until a subsequent proceeding in which the defendant has retained new counsel. Significantly, the majority cites no recent case to the contrary. I therefore conclude that the majority’s reliance on the state’s invocation of its procedural bar rule to preclude petitioner from raising an effective assistance of counsel claim is in error.
2. Abuse of the Writ
Perhaps the greatest irony in the majority’s opinion rests in its conclusion that petitioner has abused the writ. In its repeated application of procedural defaults to petitioner’s claims, the majority completely ignores the state's failure to assert with particularity abuse of the writ to petitioner’s claim of ineffective assistance of counsel on appeal. After the parties briefed their positions before this court and oral argument was heard, the Supreme Court issued a new standard by which we are to review a successive petition for a writ of habeas corpus. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Court for the first time set out that a petitioner must meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. at 72, 97 S.Ct. at 2497-99, applicable to procedural default eases, before a petitioner’s failure to raise the claim in the earlier petition is excused. This “strict liability” standard was set forth to avoid procedural abuses and to ensure the finality of state convictions.
Nevertheless, “[wjhen a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes the petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s.” McCleskey, 111 S.Ct. at 1470 (emphasis supplied). The magistrate judge’s recommendation finds that petitioner’s claim of ineffective assistance of counsel was not abusive. The district court adopted wholesale the magistrate judge’s recommendation. I search in vain to find even a hint of writ abuse with regard to this claim in the state’s brief before this court. The state did not file an objection to the magistrate judge’s recommendation, nor has it appealed the district court’s adoption of that conclusion. The claim therefore has been waived and is not properly before us. The majority’s decision to assert this issue on behalf of the state, in my estimation, is *1201completely unwarranted. “An issue not included in either the docketing statement or the statement of issues in the party’s initial brief is waived on appeal. Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir.1984). Proper appellate advocacy requires early identification of the issues. Braley v. Campbell, 832 F.2d 1504, 1508 & n. 2 (10th Cir.1987). Merely mentioning inherent defects in another context is not enough.” Adams-Arapahoe Joint School Dist. No. 28-J v. Continental Ins. Co., 891 F.2d 772, 776 (10th Cir.1989).4
Because I find no reason to reach the merits of petitioner’s claim of ineffective assistance of counsel without the district court first examining the substance of the claim,5 I would remand the cause to the district court for a hearing regarding this claim. See Bath v. National Ass’n of Intercollegiate Athletics, 843 F.2d 1315, 1317 (10th Cir.1988). I must therefore respectfully dissent from the majority’s assessment of this issue.6
LESSER INCLUDED OFFENSE INSTRUCTION
Petitioner also complains that the trial court’s failure to instruct the jury on second degree murder resulted in an unconstitutional conviction. He contends that the jury was forced to choose between convicting him of first degree murder and acquittal in violation of the Supreme Court’s decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), a decision announced after petitioner’s conviction became final.
1. Abuse of the Writ
Once again, the majority attempts to assert abuse of the writ on the state’s behalf. The only attempt by the state to appeal the issue is in a statement of additional authority submitted to this court after the McCleskey decision was issued. It did not file an objection to the magistrate’s conclusion that there was not writ abuse regarding this claim. Nor did it appeal the district court’s adoption of that conclusion. Because the state clearly waived any argument relating to an abusive writ connected with this claim, I cannot concur in the majority’s unwarranted invocation of writ abuse here.
Moreover, I find the majority’s analysis regarding this claim erroneous. It is clear •that “a retroactive change in the law and newly discovered evidence represent excuses for failing to raise the claim earlier.” McCleskey, 111 S.Ct. at 1467 (quoting Advisory Committee Notes to Rule 9, 28 U.S.C. § 2254, pp. 426-27). Petitioner therefore argues that the change in the law on lesser included offenses in capital cases, set forth in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), presents sufficient cause for his failure to present the claim in his previous habeas petition.
At the time the Supreme Court issued its decision in Beck, the petitioner already had submitted his first federal habeas proceed*1202ing to the federal courts. That petition, of course, did not include a claim of constitutional error relating to the failure of the trial court to instruct the jury on a lesser included offense. As the majority reasons, such a failure was not recognized by the courts to be of constitutional dimension until the decision in Beck was issued. Petitioner asserts that the new rule announced in Beck, combined with the failure of the Utah courts to make clear that such an instruction was available to him under Utah law until it issued its decision in State v. Hansen, 734 P.2d 421 (Utah 1986), presents cause for his failure to raise this claim in his first petition.
The majority nevertheless rejects petitioner’s contention of the claim’s novelty until 1986, the year that the Utah Supreme Court issued the Hansen decision. It notes that Utah law did not preclude such an argument until 1983, when the Utah Supreme Court issued its decision in State v. Norton, 675 P.2d 577 (Utah 1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1923, 80 L.Ed.2d 470 (1984), which was later overruled by Hansen.7 Because the petitioner had a period of time to raise his contention from 1980, when the Beck decision was issued, until 1983, when the decision in Norton clearly foreclosed such a claim, the majority reasons that the writ before us is abusive. Majority op. at 1184. It sets forth a rule, without citation, that requires a petitioner to amend a petition already filed in federal court to include a new rule of constitutional law announced after the petition was filed.
I believe that the majority’s definition of an abuse of the writ goes too far. “The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition.” McCleskey, 111 S.Ct. at 1472. When discussing the 1966 amendment to 18 U.S.C. § 2244 (1988), the legislature concluded that district courts should be spared the obligation to address habeas petitions “ ‘containing allegations ... predicated upon grounds obviously well known to [the petitioner] when [he] filed the preceding application.’ S.Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966) (emphasis added).” McCleskey, 111 S.Ct. at 1480 (Marshall, Blackmun & Stevens, JJ., dissenting). The majority would now require a petitioner, who in good faith included all claims then available at the time the petition was filed, to withdraw the petition until the new claim is exhausted in state court. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); 28 U.S.C. § 2254(b) (1988). Not only do I believe that the rule announced by the majority today is contrary to the intent of Congress, I believe that the harsh result it imposes on a habeas petitioner is unwarranted. The failure to put in abeyance a petition filed in good faith, and which adheres to the “strict liability” test recently announced by the Court in McCleskey, can in no way be characterized as abusing the writ procedure. Principles of comity do not require that claims before federal courts, which already have gone through what at times is a tedious and lengthy exhaustion of state procedural remedies, should be put on hold to await the determination of a claim wholly separate from the claims before the federal court and which could not have been presented to the state court earlier. A rule to the contrary would significantly curtail the rights of a petition*1203er to a fair and expeditious review before the federal courts.8
2. Retroactivity of Beck
I concur in the majority’s assessment of the retroactivity of Beck. I therefore concur in the dismissal of the claim.9
SWAIN CLAIM
I must also take exception to the majority’s invocation of the principle of finality to limit the exception to the systematic exclusion standard of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), announced in Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984), to instances where the prosecutor volunteers his racially motivated reasons at trial. Majority op. at 1180-1181 n. 25. The Court in Swain merely held that the simple fact that black jurors were struck by the prosecution in a given case did not warrant an inference of impropriety or an evidentia-ry inquiry. A prosecutor’s admission, even in an unrelated proceeding several years later, in my opinion, sufficiently makes out a prima facie case of discrimination. That the prosecutor’s motive is revealed years later provides little comfort to a defendant laboring under an unconstitutional conviction.
I further take exception to the majority’s approval of the magistrate’s rationale that the venireperson was properly excluded because he would feel “pressure” from the black community. An assumption that a black juror would be under pressure from the black community because the defendant is black, with no supportable facts specific to the venireperson, evidences discrimination. See United States v. Wilson, 884 F.2d 1121, 1124 (8th Cir.1989) (en banc).
I nevertheless conclude that the petitioner’s challenge of the venireperson at issue *1204for cause precludes petitioner’s standing to contest his exclusion from the jury.
CONCLUSION
I fear that our deference to the state's interest in the finality of its judgment may compel us to insert procedural barriers that are otherwise not mandated when reviewing state convictions imposed many years ago. The case before us presents such a situation. The recent barrage of precedent seeking to limit abuses of the habeas process should not blind us to the significant mandate conferred on us by Congress: to ensure that an individual is not in custody in violation of his or her rights guaranteed under the Constitution or federal law. For the reasons stated, I would remand for hearing on the merits petitioner’s claim of ineffective assistance of counsel.
. I do not read the Supreme Court’s recent decision in Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), to the contrary. There, the petitioner's counsel failed to file a timely notice of appeal from the state trial court’s determination on collateral review that the petitioner was not deprived of effective assistance of counsel. The Court held that because a prisoner has no right to counsel in a state post-conviction proceeding, ineffective assistance of counsel in that proceeding cannot be "cause" to excuse a state procedural bar. The Court in Coleman made clear that one state court already had addressed the prisoner’s ineffective assistance claim. Here, petitioner required a forum beyond direct review to present evidence outside the record demonstrating counsel’s ineffectiveness. It is unfair to penalize petitioner for counsel’s failure to introduce evidence demonstrating his own ineffectiveness. Petitioner's claim therefore has never been heard by a state court on its merits. Nor are we presented with an attorney error in a collateral proceeding that results in a procedural default. The "cause” basis for petitioner’s failure to raise the claim earlier is not premised on a Sixth Amendment deprivation of effective counsel, but instead is based on broader principles of due process.
. Nor does the fact that additional counsel entered an appearance in petitioner’s case on the eve of petitioner’s first collateral proceeding change my view. I do not make this conclusion based on additional counsel’s ignorance or inadvertence, as suggested by the majority, see majority op. at 1193, but instead conclude that the circumstances of counsel’s entry effectively precluded him from raising the claim. Additionally, I cannot agree with the majority’s characterization of the district court’s remand order as a second state collateral proceeding. See infra at n. 3. I therefore believe that the state collateral proceeding from which this habeas petition stems was petitioner’s first opportunity to effectively raise the ineffective assistance of counsel issue.
.The district court’s order states:
IT IS HEREBY ORDERED:
1. That these proceedings are temporarily stayed, and the hearing presently set to commence October 26, 1981 is vacated, pending a decision in the state courts as to whether or not State v. Wood, supra, will result in reversal of petitioner’s sentences of death; and
2. Petitioners herein are directed, within a reasonable time, to make appropriate application in the State Supreme Court for relief based upon State v. Wood, supra.
Petitioner’s App. at 27.
.The quote of the majority from appellee’s brief, see majority op. at 1182-83 n. 29, appears in the state’s recitation of facts and procedural history and does not attempt to address abuse of the writ. The issue is not included in either the docketing statement or the statement of issues. The ’’general” section addressing abuse of the writ in the state's brief to which the majority refers only sets out the law regarding that principle. The state then attacks two of petitioner’s claims as an abuse of the writ — neither of which are the claims involved here. Yet the majority, in its resurrection of a claim clearly abandoned by the state, poses petitioner’s arguments before the magistrate judge as if they were properly before this court. In fact, petitioner makes no argument regarding this claim because he correctly assumes that the state has not raised the issue on appeal. This court should apply principles of procedural default evenly to both parties. The strict standard applied to defendant's inexperienced counsel certainly should apply with equal force to the experienced counsel for the state.
. Despite the majority’s supposition to the contrary, see majority op. at 1195 n. 49, I do not reach the issue of counsel’s effectiveness in failing to cross-examine and discredit petitioner’s co-worker. I instead believe that the district court, after conducting an evidentiary hearing, is the proper venue to make such an initial determination.
. Though I do not reach the issue, I note my discord with the majority’s use of the jury’s decision at the sentencing phase to justify its decision at the guilt stage. Majority op. at 1196.
. It should be noted that although co-defendant Selby raised this issue on direct appeal, petitioner's inexperienced counsel did not join in that claim. As to Selby, the state court found no rational basis to support instructions on lesser included offenses. State v. Pierre, 572 P.2d 1338, 1353-54 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978). It did not specifically address the lesser included offense instruction as it related to petitioner.
Though the majority correctly recites that petitioner's counsel did not request an instruction on second degree murder at trial, counsel did join in co-defendant Selby’s counsel’s exception to the trial court's refusal to submit to the jury the second degree murder instructions tendered by Mr. Selby.
. Though not addressed by the majority, the Utah Supreme Court ruled that petitioner did not demonstrate "good cause” why the argument was not raised on direct appeal or in prior post-conviction proceedings. Andrews v. Shulsen, 773 P.2d 832, 833 (Utah 1988). I do not believe that the Utah Supreme Court’s invocation of Utah R.Civ.P. 65B(i) presents an adequate and independent state ground barring petitioner from presenting the lesser included offense claim in federal court. As the majority points out, a procedural bar rule sufficient to preclude federal review of a claim must be independent of the merits of the federal claim. Harris, 489 U.S. at 260, 109 S.Ct. at 1042. Under Utah law, application of Utah R.Civ.P. 65B(i)(4) is excepted upon a showing of "good cause.” The Utah Supreme Court has defined “good cause” to include "the denial of a constitutional right pursuant to new law that is, or might be, retroactive.” Hurst v. Cook, 777 P.2d 1029, 1037 (Utah 1989). Because, under the facts of this case, the Utah courts must first analyze the retroactivity of Beck before determining no "good cause” has been demonstrated, Utah’s procedural bar rule is not independent of the merits of the federal claim petitioner presents here. Cf. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (state procedural default was not independent of federal law so as to bar direct review when state made application of rule depend on antecedent ruling on federal law).
In addition, I note that the Utah Supreme Court includes in its review of capital cases on direct review any manifest and prejudicial error, even absent an objection at trial or a challenge on appeal by the party. State v. Wood, 648 P.2d 71, 77 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982). The court engaged in this analysis on petitioner’s direct review. State v. Andrews, 574 P.2d 709, 710 (Utah 1977). It did not, however, address the failure of the trial court to instruct the jury on the lesser included offense. I find merit in petitioner’s argument here that state-federal comity issues are no longer present where a state rule can bar federal review of a constitutional issue when it does not bar the state court’s review of the issue. Merely because the Utah Supreme Court missed the issue, petitioner should not bear the consequences of that error. Otherwise, state defendants are vulnerable to the same arbitrary action that has been condemned by the Supreme Court when reviewing inconsistent application of state procedural bar rules. See Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 2427, 72 L.Ed.2d 824 (1982).
. For clarification, see majority op. at 1187 n. 38, I disagree with the majority’s analysis of writ abuse and the lesser included offense issue because I believe it in error. Because I believe that petitioner could not have been expected to assert entitlement to a lesser included offense instruction under federal law at the time he filed his first federal habeas petition, I do not concur in the majority’s judgment of writ abuse even if the state had raised the issue before this court. Because I conclude, as did the majority, that Beck is not retroactive under the doctrine of Teague v. Lane, however, I reach the same ultimate conclusion and hence concur with its judgment on this issue.