concurring in the judgment.
Under the Court’s cases a state conviction will survive challenge in federal habeas corpus not only when there has been a deliberate bypass within the meaning of Fay v. Noia, 372 U. S. 391 (1963), but also when the alleged constitutional error is harmless beyond a reasonable doubt within the intendment of Harrington v. California, 395 U. S. 250 (1969), and similar cases. The petition for habeas corpus of respondent Sykes alleging the violation of his constitutional rights by the admission of certain evidence should be denied if the alleged error is deemed harmless. This would be true even had there been proper objection to the evidence and no procedural default whatsoever by either respondent or his counsel. Milton v. Wainwright, 407 U. S. 371 (1972).
It is thus of some moment to me that the Court makes its own assessment of the record and itself declares that the evidence of guilt in this case is sufficient to “negate any possibility of actual prejudice resulting to the respondent from the *98admission of his inculpatory statement.” Ante, at 91. This appears to be tantamount to a finding of harmless error under the Harrington standard and is itself sufficient to foreclose the writ and to warrant reversal of the judgment.
This would seem to obviate consideration of whether, in the light of Davis v. United States, 411 U. S. 233 (1973), and Francis v. Henderson, 425 U. S. 536 (1976), the deliberate-bypass rule of Fay v. Noia, supra, should be further modified with respect to those occasions during trial where the defendant does not comply with the contemporaneous-objection rule when evidence is offered but later seeks federal habeas corpus, claiming that admitting the evidence violated his constitutional rights. The Court nevertheless deals at length with this issue, and it is not inappropriate for me to add the following comments.
In terms of the necessity for Sykes to show prejudice, it seems to me that the harmless-error rule provides ample protection to the State’s interest. If a constitutional violation has been shown and there has been no deliberate bypass— at least as I understand that rule as applied to alleged trial lapses of defense counsel- — I see little if any warrant, having in mind the State’s burden of proof, not to insist upon a showing that the error was harmless beyond a reasonable doubt. As long as there is acceptable cause for the defendant’s not objecting to the evidence, there should not be shifted to him the burden of proving specific prejudice to the satisfaction of the habeas corpus judge.
With respect to the necessity to show cause for noncompliance with the state rule, I think the deliberate-bypass rule of Fay v. Noia affords adequate protection to the State’s interest in insisting that defendants not flout the rules of evidence. The bypass rule, however, as applied to events occurring during trial, cannot always demand that the defendant himself concur in counsel’s judgment. Furthermore, if counsel is aware of the facts and the law (here the contemporaneous-*99objection rule and the relevant constitutional objection that might be made) and yet decides not to object because he thinks the objection is unfounded, would damage his client’s case, or for any other reason that flows from his exercise of professional judgment, there has been, as I see it, a deliberate bypass. It will not later suffice to allege in federal habeas corpus that counsel was mistaken, unless it is “plain error” appearing on the record or unless the error is sufficiently egregious to demonstrate that the services of counsel were not “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U. S. 759, 771 (1970). Other reasons not amounting to deliberate bypass, such as ignorance of the applicable rules, would be sufficient to excuse the failure to object to evidence offered during trial.
I do agree that it is the burden of the habeas corpus petitioner to negative deliberate bypass and explain his failure to object. Sykes did neither here, and I therefore concur in the judgment.