concurring.
The law of Kentucky was unclear at the time of the 1973 habitual criminal trial of the prisoner, Allen Dale Canary. His innocence under Kentucky law, as it has now developed, is so clear, however, that we must grant the writ of habeas corpus in order to prevent a complete miscarriage of justice. If it reached the merits of the claim, it is quite certain that Kentucky’s highest court would now hold that Canary is not guilty of the habitual criminal conviction for which he is serving a sentence of life imprisonment because his 1968 conviction cannot be used as an offense under the habitual criminal statute.1 The Kentucky courts did not settle this question until 1976, however, three years after Canary’s habitual criminal trial, and it was not unreasonable that trial counsel failed to anticipate and predict this development in the law.
If Kentucky law had developed differently after Canary’s trial so that it were now clear that the 1968 conviction could be used to support an habitual criminal charge, I do not believe my brothers would issue the writ on grounds that the lawyer failed to raise the argument at trial. It seems to me then that the real basis for the Court’s decision is Canary’s innocence under Kentucky law.
We should rest our decision on due process grounds, therefore, rather than ineffective assistance of counsel. The “ineffective assistance” rationale unrealistically imposes on trial counsel in this case a fail-safe standard of performance under the sixth amendment. It oversimplifies the task of the criminal defense lawyer and underestimates the difficulty of prophesying developments in the law. In addition, the broad, open ended, almost discretionary nature of the Court’s sixth amendment rationale has the potential to create mischief in the criminal law because it undermines the certainty and finality of criminal judgments. Convictions are open to collateral attack in all eases, without regard to guilt or innocence, where the lawyer overlooked making a salient argument in light of later developments in the law. I do not believe this is what my brothers intend. Canary’s innocence is the key to the case.
*892I would base our decision on the principle stated by Justice Black for a unanimous Court in 1960 in Thompson v. City of Louisville : “Just as ‘Conviction upon a charge not made would be sheer denial of due process,’ so is it a violation of due process to convict and punish a man without evidence of his guilt.”2 This principle was recently restated and affirmed in Va chon v. New Hampshire: “ ‘It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged . violate[s] due process.’ ”3
The only Kentucky case decided prior to Canary’s habitual criminal trial which considered the effect of the juvenile court’s failure to set forth reasons for the transfer was Whitaker v. Commonwealth, 479 S.W.2d 592 (1972). At the habitual criminal trial, this was the only case on the point available to Canary’s counsel, the only case he might have used to construct an argument that Canary’s 1968 conviction could not be used as a basis for an habitual criminal conviction. Whitaker did not involve the use of a conviction as the basis for an habitual criminal charge. Rather, it was a direct appeal of the juvenile’s Circuit Court conviction after a transfer from juvenile court. Three defects in the juvenile court proceedings were raised: there was no transfer hearing; the juvenile was not represented by counsel; and the juvenile court provided no reasons in support of its transfer order. Influenced by the United States Supreme Court’s opinion in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the Kentucky Supreme Court held that the Kentucky juvenile transfer statute requires that each juvenile transferred to Circuit Court pursuant to that statute is entitled to a transfer hearing, representation by counsel and a statement of reasons in support of the juvenile court’s disposition of the case. The exact basis for the Kentucky Supreme Court’s ruling is ambiguous:
The [transfer] order does not satisfy [1] the basic requirement of due process and fairness and [2] is not in conformity with the statutory directions controlling a juvenile proceeding. The Nicholas Circuit Court had [3] no discretion to try the juvenile .
479 S.W.2d at 595.
The same court in 1971, two years prior to Canary’s trial, had said in Anderson v. Commonwealth, 465 S.W.2d 70, 75, that “to the extent that prior decisions of this court [finding juvenile transfer proceedings defective for failure to enter a transfer order, notify the parents or provide counsel] have been premised on a question of jurisdiction, they are regarded as unsound and nonau-thoritative.” Six months after Canary’s trial, the Kentucky Supreme Court in Fields v. Commonwealth, 498 S.W.2d 130, 131 (1973) explained that “the basis for that holding [ Whitaker ] was that due process required that the juvenile order set forth the reasons for the waiver of jurisdiction as held in Kent v. United States."
A lawyer attempting in 1973 to construct an argument that the invalidity of Canary’s 1968 juvenile transfer survives his guilty plea and conviction in adult court was faced not only with these cases but with Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), which held:
a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
411 U.S. at 267, 93 S.Ct. at 1608.
In 1976, three years after the Canary trial, the Kentucky Supreme Court in Hamilton v. Commonwealth, 534 S.W.2d 802, *893addressed in an habitual criminal case for the first time the question of the effect of an adult court conviction after a juvenile transfer order which did not state the reasons for the transfer. Hamilton protested that the juvenile conviction was invalid because of infirmities in the transfer order, including failure to state reasons for the transfer. At the time of his adult court conviction, he had not objected to the transfer and had subsequently entered a plea of guilty to the offense in the adult court. Instead of applying the principles developed in Anderson, Fields and Tollett, the Kentucky Supreme Court held as a matter of state law that Hamilton was not barred from raising the issue of the invalidity of the transfer order as a defense to the habitual criminal charge because such defective juvenile transfer proceedings deprive the adult court of jurisdiction:
The count charging Hamilton as an habitual criminal was based upon an invalid conviction on a charge of storehouse breaking in 1971, when he was 16 years of age. Since the waiver was invalid, the circuit court had no jurisdiction to try Hamilton on that charge.4
534 S.W.2d at 804.
I do not believe that a lawyer who failed in 1973 to anticipate and make the arguments adopted in the Hamilton case was incompetent. In addition, except in rare circumstances not present here, the court should not base its decision on a finding of ineffective assistance of counsel without benefit of a thorough factual inquiry by the district court into the issue as we required in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974), and most recently in United States v. Yelardy, 567 F.2d 863 (6th Cir. 1978). Here, by contrast, neither the attorney whom the court has declared to be incompetent nor judge who presided at Canary’s trial has been given the chance to be heard on the issue of whether counsel’s representation was “within the range of competence demanded of attorneys in criminal cases.” Yelardy, supra at 866, quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
The Hamilton case does mean, however, that Canary is not guilty as an habitual criminal under the current laws of Kentucky. Though the infirmity in Canary’s transfer proceeding is, at most, a highly technical legal error, the unique nature of a recidivist proceeding transforms what may be only a procedural error in a prior conviction into a substantive failure of proof. To obtain an habitual criminal conviction, the Commonwealth must prove the existence of three, prior felony convictions.
In choosing to define an offense solely in terms of a defendant’s prior convictions, the Commonwealth necessarily risks the possibility that at some future time, one of those prior convictions may no longer be valid under current law and that, as a result, a defendant convicted as an habitual criminal might later be “proven” innocent. If, for example, the United States Supreme Court were to rule that, because of the elements of skill involved, a pinball machine is not a “gambling device” within the meaning of 15 U.S.C. § 1171,5 any defendant who had been convicted under one of those statutes for an offense involving only a pinball machine would be entitled to have his conviction vacated. As a matter of substantive law, the defendant would no longer be guilty of the offense of which he was convicted. Canary’s situation is much the same. Since, under present state law, his 1968 conviction is invalid and may not be used to prove him an habitual criminal, the Commonwealth has not met its burden of proving three prior felony convictions. Canary is, in fact, innocent of the charge for which he is now serving a sentence of life imprisonment.
My brothers are concerned that because Canary did not raise the issue concerning the 1968 conviction at his habitual criminal trial, the principles recently announced by *894the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), prevent us from issuing the writ on grounds other than ineffective assistance of counsel. I do not believe this concern is well founded for two reasons, first because I believe Canary has met the “cause” and “prejudice” tests of Wainwright and second, and more importantly, because I do not believe that Wainwright has any relevance to the fundamental principle of substantive due process stated in the Thompson and Vachon cases.6
The Supreme Court held in Wainwright that a defendant who had failed to object to the introduction of his confession at trial and was thereafter barred by Florida procedural rules from questioning its admissibility could not raise the issue in a federal habeas corpus petition absent a showing of “cause” for not complying with state procedures and “prejudice.” Since the Kentucky Supreme Court has declined to rule on the merits of Canary’s claim because his lawyer did not raise the issue at trial or on appeal or in his first state habeas corpus petition, it might appear that Canary’s claim is barred under Wainwright unless he demonstrates cause and prejudice.
The Court deliberately left “cause” and “prejudice” undefined, confident that their application would not be permitted to work a “miscarriage of justice.” 433 U.S. at 91, 97 S.Ct. 2497. I interpret Wainwright and other opinions of the Court to imply, however, that “prejudice” means a serious doubt of the defendant’s guilt and “cause” means either that state procedural rules are inadequate or were unfairly applied or that neither the defendant nor his attorney could reasonably have been expected to know or appreciate the legal significance of the facts upon which the objection is based.7
The foregoing discussion makes clear that Canary has demonstrated both cause and prejudice thus defined. Canary has shown “prejudice” in that had he raised the issue of his 1968 conviction at his recidivist trial, he would have been acquitted — at least according to current Kentucky law. He has shown “cause” in that the applicable opinions upon which he relies had not been decided nor could reasonably have been anticipated at the time of Canary’s habitual criminal trial.8 At the time of Canary’s 1973 trial, Kent and Whitaker might have alerted an imaginative attorney to the defect in Canary’s 1968 transfer proceeding. No Kentucky decision, however, had held or implied that such a claim survived a subsequent guilty plea entered voluntarily and with competent counsel in circuit court. In view of Toliett v. Henderson, supra, moreover, decided the previous year, the chances of such an argument prevailing would have appeared unlikely.
I believe, however, that Wainwright has no application here. Wainwright aimed at the problem of procedural default in state court and what a majority of the Court perceived to be the overbroad waiver rule of Fay v. Noia.9 Wainwright is an effort to find a middle ground between Justice Brennan’s majority opinion and Justice Harlan’s dissent in Fay v. Noia. It has nothing to do with the principle of substantive due process recognized since 1670 that, “if the commitment be . . . for a matter for which by law no man ought to be punished, the courts are to discharge.”10
*895Canary’s point is that Kentucky’s change or clarification of law has made it clear that he is an innocent person and that his continued imprisonment is a violation of substantive due process. As Justice Harlan said in his searching analysis of “retroactivity” in his concurring opinion in Mackey v. United States:11 “[T]he writ has historically been available for attacking convictions on . grounds [of substantive due process] . because it represents the clearest instance where finality interests should yield.”12
It was well settled prior to Fay v. Noia that' a defendant whose innocence is established by subsequent changes in law is entitled to federal habeas corpus relief. This conception of substantive due process stands on principles independent of those discussed in Wainwright. Although the “cause” and “prejudice” standards may be interpreted to encompass one in Canary’s position, those terms are intended to circumscribe procedural rather than substantive claims. Wainwright rests on the state’s interest in finality in criminal prosecution and respect for its procedural rules. Neither affects the more fundamental principle of our judicial system that “the government has no legitimate interest in punishing those innocent of wrongdoing.”13 That is the basis of my concurrence.
I would hold that because Canary’s 1968 conviction may not be taken into account for the purpose of enhancing his present term of confinement, Canary’s life sentence must be vacated. Canary is not entitled to resentencing, however. As the Supreme Court first held in United States v. Prid-geon, 153 U.S. 48, 62, 14 S.Ct. 746, 751, 38 L.Ed. 631 (1894):
[T]he imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion of the sentence as may be in excess open to question and attack. In other words, the sound rule is that a sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and offence, and only void as to the excess, when such excess is separable, and may be dealt with without disturbing the valid portion of the sentence.14
As the trial judge charged the jury at Canary’s 1973 trial, if the jury found that Canary had committed three felonies, the habitual criminal statute requires that he be sentenced to life imprisonment. If the jury found only that he had committed two prior felonies, the statute required that the sentence for the second offense be twice that imposed for the first offense. In other words, disregarding for the purposes of sentencing Canary’s 1968 conviction, Canary must serve for the 1973 offense a sentence of six years imprisonment which is twice what he received for his 1970 robbery conviction, the validity of which is not challenged. This valid portion of Canary’s sentence is clearly severable from the life sentence actually imposed. The statute is mandatory and there is no purpose in remanding the case for resentencing. Canary’s sentence should be adjusted to what it would have been had the jury not taken into account his invalid conviction.
. The Kentucky habitual criminal statute, Ky. Rev.Stat. § 431.190, which was repealed in 1975, provided:
Any person convicted a second time of felony shall be confined in the penitentiary not less than double the time of the sentence under the first conviction; if convicted a third time of felony, he shall be confined in the penitentiary during his life.
. 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654 (1960) (footnotes omitted), quoting De-Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937).
. 414 U.S. 478, 480, 94 S.Ct. 664, 665, 38 L.Ed.2d 666 (1974), quoting Harris v. United States, 404 U.S. 1232, 1233, 92 S.Ct. 10, 30 L.Ed.2d 25 (1971) (Douglas, J., in chambers).
. See also Crick v. Commonwealth, 550 S.W.2d 534 (Ky., 1977); Bingham v. Commonwealth, 550 S.W.2d 535 (Ky., 1977).
. See United States v. 5 Gambling Devices, 346 F.Supp. 999 (W.D.La. 1972).
. See Justice Brennan’s suggestion in his dissenting opinion in Wainwright that lower courts may interpret the case as an invitation to use the ineffective assistance of counsel argument as a way around the uncertain “cause” and “prejudice” requirements laid down in Wainwright. 433 U.S. at 107, 117-18, 97 S.Ct. 2497.
. See Wainwright, supra; Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).
. See Sanders v. United States, 373 U.S. 1, 16-17, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Garland v. Cox, 472 F.2d 875, 877 (4th Cir. 1973).
. 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
. Bacon’s Abstract, quoted in Ex Parte Sie-bold, 100 U.S. 371, 376, 25 L.Ed. 717 (1880). *895See Bushel’s Case, 6 Howell’s State Trials 999 (1670).
. 401 U.S. 667, 692-93, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971).
. See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 525-28 (1963).
. United States v. United States Coin & Currency, 401 U.S. 715, 726, 91 S.Ct. 1041, 1047, 28 L.Ed.2d 434 (1971). (Brennan, J., concurring).
. See Holscher v. Young, 440 F.2d 1283, 1288-89 (8th Cir. 1971).