dissenting:
I respectfully dissent. On the facts of this case, I believe there is no substance to the claim that Wilson lacked notice of the “nature and cause” of the charges against him, U.S. Const. Amend. VI, and therefore I would find no constitutional error. In addition, even if error was committed, the error was invited and it also was not prejudicial under previous circuit precedent. For those reasons, I would reverse the district court’s grant of the writ.1
I
To set this case properly,2 I should say at the outset that the district court’s opinion, *1263with reference to lack of notice, is expressly based on the fact that the State proceeded “without informing him of the nature of the accusations against him until the end of trial.” That is the latest time at which notice could be found consistent with a lack of it, and is, of course, a mistake, as the majority implicitly recognizes. What the district court would have held had it correctly analyzed the case, we will never know. The notice was at least measured in days and probably in weeks.
To underscore the fact that Wilson knew precisely what he was being tried for, I refer to the indictment, dated April 4, 1989, in which it is charged that he did “enter the dwelling of Ed Mekin.”3 Indeed, the record shows without dispute that Mekin knew the defendant Wilson, so it is only fair to assume that Wilson also knew Mekin. Thus, from the time he saw the indictment, Wilson knew exactly the place he was charged with burglarizing, his acquaintance Ed Mekin’s house, whether the same, under South Carolina law, be a dwelling or a building. And the record shows, also without dispute, as everyone connected with the trial knew, that the house had been partially burned.
Some three weeks later, when the trial took up on April 25, 1989, and before any of the case had been presented to the jury, the question with respect to dwelling or building of the partially burned house, or both, was raised. The Solicitor took the position that the partially burned house could be a dwelling or a building, or both. At that time, the court indicated that it would cooperate with the defendant in keeping his prior offenses “away from the jury” and suggested that the prior offenses be stipulated, and a special question be sent in to the jury to ascertain whether Wilson had burglarized a dwelling or a building. Although the Solicitor agreed to keeping the prior convictions away from the jury, the defendant would not agree. The Solicitor then introduced the two previous convictions of the defendant Wilson, at which time Wilson’s attorney interjected and stated into the record “If I may, without objection, Your Honor.” (A. 7-9).
On April 26th, the question with reference to a dwelling or building again came up. The defendant rejected the court’s offer to charge with respect to a dwelling only, and the following colloquy took place:
The Court: And you’re not going to argue the fact that it is not a dwelling, so—
Mr. Walsh:4 No, sir. I would believe — I would believe that the proper charge would be a building with the enhancement. In other words, we would have burglary in the second degree two ways. Either a dwelling or building with enhancement. The State has elected by introducing the prior convictions to go with a building and enhancement.
The Court: No, I don’t think—
Solicitor: I’m going both ways. I mean—
The Court: Do you want to go both ways, Mr. Walsh?
Mr. Walsh: Your Honor, I prefer to go only on the — I prefer, obviously, to go neither way, but I believe the State has elected to go under building with enhancement.
So it is true, without a doubt, that-from the time Wilson had knowledge of the indictment, he knew he was charged with breaking into the house of his acquaintance Ed Mekin. Wilson probably knew about the indictment very shortly after it was found by the grand jury, and in all events, he knew about it before the trial started on April 25th.5 On April 25th, he was advised specifically that the State wanted to prove its case either way, that is to say, either that Ed Mekin’s house was a dwelling or that it was a building. He also knew that both the trial judge and the Solicitor were willing to keep away from the jury the fact of his previous convictions, but he would have none of that, choosing, instead, to solicit the proof of the convictions even to the jury, which shows beyond doubt, I submit, as a matter of fact, that he was fully advised as to the nature of the *1264charge and, as well, invited the error now complained of.
II.
In 1884 the Supreme Court decided Hurtado v. California, 110 U.S. 516, 534-35, 4 5.Ct. 111, 120-21, 28 L.Ed. 232 (1884), not mentioned by the district court, in which the Court held that the due process clause of the Fourteenth Amendment did not incorporate the Fifth Amendment’s right to be charged by grand jury indictment. The Court has never waivered from that view. See 2 La-Fave & Israel, Criminal Procedure § 16.1 (1984). However, citing, a string of cases that involved federal crimes and trials, the majority has decided that Wilson’s indictment was amended improperly and he is entitled to federal habeas corpus relief. Although the Sixth Amendment has been used to help describe what must be contained in an indictment when the Fifth Amendment requires one to issue, the federal cases involving indictments are of little value when evaluating the sufficiency, under the Sixth Amendment alone, of a state accusatory pleading.6 The Sixth Amendment does not apply to the States the same criteria that are used to judge a federal indictment based on both the Fifth and Sixth Amendments. Rather, the Sixth Amendment’s “nature and cause” clause, coupled with the Fourteenth Amendment’s due process clause, provides that state defendants must be given “notice and an opportunity to respond. Notice must be sufficient to make the opportunity useful.” Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir.1992). The Seventh Circuit has deter-mmed that a Sixth Amendment claim such as the petitioner’s is “a straight due process case in which the accused contends that inadequate notice led to a trial with an unacceptable risk of convicting the innocent.” Fawcett, 962 F.2d at 618. I agree with Fawcett that such are straight due process cases and that our concern is the sufficiency of the notice that Wilson received of the charges against him. See also Ashford v. Evans, 780 F.2d 405, 407 (4th Cir.1985) (“[Djeficiencies in state court indictments are not ordinarily a basis of federal habeas corpus relief unless the deficiency makes the trial so egregiously unfair as to amount to a deprivation of the defendant’s right to due process.”) In this case, to repeat, Wilson had notice at least before the jury was sworn, and almost certainly weeks before. Time and again the theory surfaced in the case, along with evidence to support it. There was no ambush or surprise here. At the end of trial, the trial court even offered to remove the burglary. of a building theory from the case but it stayed in because the defendant asked for it. That aside, the majority has not yet explained how Wilson lacked notice. Therefore, I do not believe there was any Sixth Amendment notice error here, and Wilson’s trial complied with the Fourteenth Amendment’s due process notice requirements.
III.
Even if Wilson’s claim of error is correct, the majority holds that if a defendant agrees to the State’s error, if the error is serious enough, we will vacate the conviction anyway. *1265I neither accept the majority’s proposition that the invited error doctrine should be ignored, nor agree that, even if an exceptional circumstances doctrine exists, it has any applicability in this case.
A.
I agree with the majority’s discussion of the invited error doctrine to the extent that it discusses the purposes of the doctrine. The doctrine has long been accepted in this Circuit. See, e.g., Cranston Print Works Co. v. Public Serv. Co. of N.C., 291 F.2d 638, 649 (4th Cir.1961) (“A party cannot successfully complain of error for which he, himself, is responsible or of rulings which he has invited the trial court to make.”). However, I do not agree that an exceptional circumstances exception exists. Certainly it has never existed in this circuit before today, and apparently is extant only in the Ninth Circuit. Although theologians may argue about whether some sins are worse than others, so far as a habeas petitioner is concerned when a constitutional error has been invited, all such errors that furnish an avenue for relief are equal. Section 2254(a), which covers violations of the Constitution or laws or treaties of the United States, is a broad enough umbrella without extension by us. So, ordinarily, invited error is invited error, and this is an ordinary case. What the majority has done is to create a way around the exhaustion and similar procedural bar requirements for habeas corpus petitioners who fail to plead ineffective assistance of counsel but have preserved the merits of their claimed error. In my opinion, if the error is the result of poor lawyering, the petitioner must plead just that. We should not fill in the gap, as the majority does here, by simply repeating without factual support or explanation the writ is issued to “preserve the integrity of the judicial process or to prevent a miscarriage of justice.” There has never been a habeas petitioner, from misde-meanant to capital murderer, who could not rationalize his ease to fit that broad exculpatory grant.
Further, if the defendant had pleaded ineffective assistance of counsel, we might have discovered that counsel had an objectively reasonable purpose for asking for the instruction despite the Solicitor’s and the trial court’s willingness to dispense with it.7 See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In all events, if the invited error doctrine means anything, it means that one of those reasons cannot be that the defendant wanted to invite reversible error. If counsel’s conduct was not objectively reasonable, then ineffective assistance of counsel (had it been pleaded), should be the basis for issuing the writ.8 By not applying the invited error doctrine and excusing the defendant’s failure to plead ineffective assistance of counsel, the majority has seen to it that the defendant has achieved just what the invited error doctrine prohibits.
B.
I note that even if the majority’s exceptional circumstances exception to the invited error doctrine does exist, it has no application in this case. If such an exception exists, surely we must weigh the inviting conduct against the error, however grave. Here, be*1266fore the jury was impaneled, the solicitor, defense counsel, and the court discussed the question and the court suggested that the two prior convictions be stipulated so the jury would not have the convictions before it. Other than any question of identity, the only questions before the jury would have been whether Mekin’s house was a dwelling or a building and whether there was a breaking or entering, either or both under the statutes. The solicitor explained that he might proceed under either theory. Rather than objecting, defense counsel asked for a moment to decide whether he would stipulate to the convictions. The solicitor then informed the court that there had not been a stipulation and that the two prior convictions would be introduced. Defense counsel did not object when the solicitor informed the court. When the convictions were introduced, defense counsel explicitly interjected and stated that he had no objection to their introduction. Then, when discussing the jury charges with the trial court, rather than accepting the solicitor’s offer to withdraw the building charge, and in the face of the court’s expressed willingness to keep out the prior convictions, defense counsel stated that “the proper charge would be a building with the enhancement.... The State has elected by introducing the prior convictions to go with a building and enhancement.” Defense counsel did not object when the jury was charged with both theories.
Wilson’s lawyer had more than one perfect opportunity to object to the injection of the burglary of a building theory into the ease. However, he did not object. Further, if the court had followed his wishes in the instruction conference, the only theory on which the jury would have been charged was burglary of a building. In light of the numerous times that defense counsel encouraged the burglary of a building theory, I cannot agree that there can be any exception to the invited error doctrine in this case.
I also note that in each of the three exceptional circumstances cases cited by the majority,9 the Ninth Circuit did not find such circumstances. The exceptional circumstances doctrine in the Ninth Circuit is invoked only when it is necessary to “preserve the ‘integrity of the judicial process’ or to prevent a ‘miscarriage of justice.’ ” Guam v. Alvarez, 763 F.2d 1036, 1038 (9th Cir.1985) (per curiam) (quoting Marshall v. United States, 409 F.2d 925, 927 (9th Cir.1969)). I do not think that they are present here for two reasons in addition to the one I have stated above. First, it would be a misstatement to say that Wilson did not have a fair hearing. Every procedural opportunity was extended to him, so the integrity of the judicial process was preserved. Second, there is no reason that the words miscarriage of justice should be taken to have any different meaning than as they have been defined by the Court in Sawyer v. Whitley, — U.S. -,-,-, 112 S.Ct 2514, 2517, 2518-20, 120 L.Ed.2d 269 (1992) as being “ ‘actually innocent’ of the crime of which he was convicted.” Cf. Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir.1992) (stating that concern is the “unacceptable risk of convicting the innocent”). There is no such claim of innocence here, and such a claim would be idle.
IV.
In Ashford we reasoned that “[vjariances and other deficiencies in state court indictments are not ordinarily a basis for federal habeas corpus relief unless the deficiency makes the trial so egregiously unfair as to amount to a deprivation of the defendant’s right to due process.” 780 F.2d at 407. We then held that since the defendant had not been prejudiced in his defense by any variances between the indictment and proof, that he had not been prejudiced, and we declined to require the district court to issue a writ of habeas corpus. In this case, as in Ashford, not even the majority can point to any prejudice to Wilson by the charge to the jury. Wilson points to no defense he could have made, had the jury been charged merely with breaking into a dwelling or with breaking into a building, that he did not make here.
It follows that I would reverse.
*1267ORDER
Aug. 2, 1993.
Upon a request for a poll of the court, a majority of the active circuit judges voted to rehear this case by the en banc court.
It is accordingly ADJUDGED and ORDERED that the decision of the panel in this case, decided June 11, 1993, shall be, and the same hereby is, vacated.
It is FURTHER ORDERED that the clerk will see that this case is heard by the en banc court in the ordinary course of business.
With the concurrences of all the active circuit judges.
IT IS FURTHER ORDERED that this case shall be calendared for argument at the October session of Court. Within ten days of the date of this order, 12 additional copies of appellant’s brief; 15 additional copies of ap-pellee’s brief; 12 additional copies of appellant’s cross reply brief; and 15 copies of appellee’s cross reply brief, shall be filed.
The appellant will file 14 additional copies of the joint appendix.
. The district court erroneously based its grant of the writ on the Fifth Amendment right to an indictment. Although the district court mentioned the Sixth Amendment, it stated that the Sixth Amendment is a "criteria against which the sufficiency of an indictment must be measured."
. The quoted colloquy in the majority opinion, p. 1258-60 took place on April 26th, the second day *1263of trial. Omitted is any detail of the colloquy on April 25th, the first day of trial to which I will refer.
. Mekin may be spelled Meekins.
. The defendant’s attorney.
. The record does not show exactly when Wilson learned of his indictment, but it is bound to have been early in the game since he was caught red-handed.
. The Tenth Circuit case on which the majority relies, Hunter v. New Mexico, 916 F.2d 595 (10th Cir.1990) (per curiam), cert. denied, -— U.S. -, 111 S.Ct. 1693, 114 L.Ed.2d 87 (1991), fails to make the distinction between the Fifth and Sixth Amendment requirements in state cases. Although the court acknowledged the distinction in a footnote, see Hunter, 916 F.2d at 598 n. 5, it made the same error in reasoning the majority has made here: the opinion cites and quotes federal Fifth Amendment cases to find error. Such a procedure ignores the very reason why constructive amendment of an indictment violates the Fifth Amendment — that the charge has not been passed on by the grand jury as the Fifth Amendment requires. 2 LaFave & Israel, supra § 19.2, at 450 (quoting and citing Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)). I also note that the Supreme Court cases on which the majority has relied, all concémed much different factual situations, and indeed, did not even deal with the question before us at all. For example, although the majority has accurately quoted certain language from Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), Cole does not end the inquiry, and the quoted material cannot be read as establishing a bright-line reversible per se rule for Sixth Amendment violations. In Cole, the defendant had been tried and convicted of § 2 of an Arkansas statute. The Arkansas Supreme Court had mistakenly considered the conviction as under § 1 of the same statute. § 1 and § 2 required entirely different elements to convict, so the U.S. Supreme Court not surprisingly required reconsideration by the Arkansas Court, in which setting the quotation in the majority opinion arose.
. The record in this case discloses abundant evidence that Wilson was guilty of both dwelling breaking and building breaking, with the same sentence authorized for each crime. Wilson's previous convictions were committed in years past, so they enter into the case only as incidental proof of the charge of building breaking. Whether building or dwelling breaking was the charge, it really was a matter of technical indifference to the attorney, so far as this proceeding is concerned. In view of the fact that at common law burglary is particularly heinous as a crime against habitation, I suggest that the defense attorney was actually, like Brer Rabbit, about to be thrown in the briar patch. Indeed, the common law notion that burglary of a dwelling is more heinous than breaking into a building not a dwelling still is reflected in the South Carolina statutory scheme, which requires that there be the aggravating factor of two prior convictions before breaking into a building can be second degree burglary. S.C.Code Ann. § 16-11 — 312(B) (Law.Co-op.Supp.1992). Without the prior convictions, burglary of a building is burglary in the third degree, which carries a lower penalty. See S.C.Code Ann. § 16-11-313 (Law. Co-op.Supp.1992).
. This procedure was followed in Ricalday v. Procunier, 736 F.2d 203 (5th Cir. 1984). Although harmless error was found, the basis for relief was the petitioner's Sixth Amendment right to the effective assistance of counsel. See also Thomas v. Harrelson, 942 F.2d 1530 (11th Cir. 1991), in which case relief was granted.
. The third is United States v. Schaff, 948 F.2d 501 (9th Cir. 1991). I particularly note that each of those three cases is a direct criminal appeal. In such case, the additional hurdles for habeas corpus relief are not present.