concurring.
I agree with the majority’s treatment of the first four grounds raised in Norris’ section 2255 petition. However, I would reject Norris’ three remaining claims on their merits, rather than disposing of them on a waiver theory. I am especially troubled by the majority’s application of the “cause and actual prejudice” standard to Norris’ suggestive identification claim because, as the majority acknowledges, this disposition is not consistent with well-established Supreme Court authority. Thus, I join the majority opinion only to the extent that it denies relief on the first four grounds, and concur in the judgment affirming the district court’s denial of section 2255 relief.
I.
As the majority acknowledges, the lower federal courts have been unable to agree about the effect of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), particularly with respect to the continued viability of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). But, for the reasons suggested below, the ongoing applicability of the , pertinent aspects of these latter decisions seems clear enough to me. Moreover, for at least four reasons, I think it is unacceptable to assume the demise of recognized Supreme Court precedent on a crucial question in a case in the posture of the one before us.
First, the Government only half-heartedly relies in this court upon the “deliberate bypass” standard, and does not even urge us to apply the “cause and actual prejudice” standard. Of course, it does not ask us to reconsider either Kaufman or Fay; nor apparently did it make either of these requests for reconsideration below.
Second, contrary to the majority’s assertion, the district court did not hold, as an alternative basis for its decision, that Norris is barred from raising the three remaining issues presented in his section 2255 petition *905because he failed to show “cause and actual prejudice”; nor did the district court “doubt” — correctly or otherwise — “that deliberate bypass is still the test for whether a failure to follow normal procedures for raising issues in criminal cases ... is a bar to raising such an issue later in a section 2255 motion.” Ante at 900-901.
Regarding Norris’ suggestive identification claim, the district court stated: “This argument was not raised in the petitioner’s appeal, apparently because of a strategic decision. Normally, a deliberate failure to raise an issue on appeal precludes its consideration under § 2255, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).” Memorandum Opinion and Order at 3. At best, this statement, which constitutes the court’s entire discussion of the waiver issue, may be a finding that Norris’ decision not to raise the identification claim on appeal was a strategic choice. If so, the factual basis for such a conclusion is not apparent from the record.1 To the extent that the court’s memorandum may hold that Norris’ unexplained failure to raise the identification issue on appeal constitutes a deliberate bypass, even the majority recognizes that this would be inconsistent with Kaufman. Ante at 902. Presumably, an experienced district judge purporting either to rule in a manner patently inconsistent with controlling Supreme Court precedent or to hold that the precedent was no longer viable would, at least, cite the case in question and discuss why it was not controlling. As shown above, the district court in this case did neither. Moreover, it is likely that such an important district court decision would have been published. Yet, the instant one was not. Thus, it is unreasonable to construe the district court’s disposition in the manner suggested by the majority.
Third, the petitioner in the instant case is pro se and we have not had the benefit of oral argument. I have not requested that counsel be appointed and that the case be orally argued because I believe it unnecessary, as well as improper, to decide this case on the rationale followed by the majority. Nevertheless, these procedures would appear to be appropriate if this case is to be the vehicle for fundamental changes in direction of the requirements of habeas procedure. Norris’ lack of counsel and legal expertise hampers him in at least two ways. First, it leaves him unable to present effective arguments in response to the majority’s waiver analysis. An examination of Norris’ brief reveals no attempt to do so.2 Second, because Norris is pro se, his chances of successfully petitioning for rehearing in this court and, failing in that endeavor, petitioning for a writ of certiorari in the Supreme Court are not good, rendering today’s decision effectively unreviewable. Moreover, I am extremely reluctant, apparently more so than the majority, to decide an issue of such importance to so many federal prisoners without the pros and cons being aired by counsel with the ability and opportunity to respond directly to our concerns at oral argument.
Finally, the majority also has unfortunately overlooked the criteria under which the need for oral argument is supposed to be determined. The pertinent rules list three criteria for dispensing with oral argument:
(1) the appeal is frivolous; or
(2) the dispositive issue or set of issues has been recently authoritatively decided; or
(3) the facts and legal arguments are adequately presented in the briefs and the decisional process would not be significantly aided by oral argument.
*906Fed.R.App.P. 34(a); Circuit Rule 14(f). Clearly, none of these criteria is satisfied in the instant case under the majority’s ratio decidendi. Indeed, it may well be that this case, to the extent that it is decided on the waiver theory, satisfies the criteria for granting a rehearing en banc. See Circuit Rule 16(b) (appeal is exceptionally important or decision is inconsistent with decision of United States Supreme Court, this court, or another court of appeals). If Kaufman were a decision of this court, the majority opinion would have to be circulated to all its active judges sua sponte. See Circuit Rule 16(e).
II.
Although I would not decide this case on a waiver theory, I am compelled to respond to the majority’s analysis. The majority’s suggested application of United States v. Frady, - U.S. -, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), is troublesome. In Frady, which is so central to the majority’s analysis, a federal prisoner convicted of first-degree murder failed to comply at trial with Rule 30 of the Federal Rules of Criminal Procedure, which provides:
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.
The determinative issue was whether Criminal Rule 52(b) — the “plain error” rule — applies in a section 2255 proceeding, or whether Frady’s procedural default at trial (i.e., his failure to comply with Criminal Rule 30) barred his challenge to the trial court’s instruction on the meaning of malice in a subsequent section 2255 proceeding. The Court simply held that Criminal Rule 52(b) did not apply and that Frady’s ability to litigate the jury instruction claim in a collateral proceeding was to be determined according to the “cause and actual prejudice” standard first articulated in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973).3
The Frady rule, of course, is but the most recent antithesis in the federal habeas dialectic. The scope of the writ has fluctuated almost continuously both in terms of the issues cognizable under it and the procedural net surrounding it. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 77-85, 97 S.Ct. 2497, 2501-02, 53 L.Ed.2d 594 (1977) (Rehnquist, J.); Fay v. Noia, 372 U.S. 391, 399-427, 83 S.Ct. 822, 827-842, 9 L.Ed.2d 837 (1963) (Brennan, J.); Id. at 449-63, 83 S.Ct. at 854-861 (Harlan, J., dissenting) (all discussing history of writ). However, with respect to both state and federal prisoners, the doctrine according to which a procedural default at trial bars subsequent litigation of a claim in a collateral proceeding, regardless of its merits, consistently has been applied only in the presence of an established “contemporaneous objection” rule. See Frady, supra; Engle v. Issacs, - U.S. -, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (state prisoners’ challenges to jury instructions barred because of their failure to comply with Ohio Rule Crim.P. 30, absent “cause and actual prejudice” for such procedural default); Wainwright v. Sykes, supra (state prisoner’s federal habeas litigation of Miranda claim precluded because of procedural default under Fla.R.Crim.P. 3.190(i)); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (state prisoner’s failure to comply with Art. 202 of Louisiana Code of Criminal Procedure (1928)); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (federal prisoner’s failure to comply with Fed.R.Crim.P. 12(b)(2)). In the absence of such an established rule, there simply can be no procedural default. Pacelli v. United States, 588 F.2d 360, 363 n.8 (2d Cir. 1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979).4 Consequently, the Court has not *907applied a “waiver” analysis in such circumstances. See County Court of Ulster County v. Allen, 442 U.S. 140, 148-54, 99 S.Ct. 2213, 2220-23, 60 L.Ed.2d 777 (1979) (“[I]f neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some procedural rule, a federal court implies no disrespect for the State by entertaining the claim.”); cf. Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) (state prisoner’s ability to bring federal habeas challenge to trial court’s failure to give an unrequested jury instruction not determined according to “procedural default” analysis, but by application of the rule of Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)); Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975) (because, under state law, petitioner’s guilty plea did not preclude his subsequent constitutional challenge to the denial of a suppression motion, and state statutory requirements were otherwise satisfied, federal habeas relief was available).
Apparently, no established “contemporaneous objection” rule governs Norris’ “judge bias” and “jury prejudice” claims. With respect to the former, the majority indicates in dicta that Norris’ failure to comply with 28 U.S.C. § 144 may bar him from litigating the “judge bias” claim here. Although that statute provides a mechanism for challenging a trial judge’s alleged personal bias or prejudice, however, unlike the rules applicable in those cases discussed above in which the Court applied a waiver analysis, section 144 does not, on its face, establish a procedural bar if it is not utilized. The majority has not cited, nor have I found, any authority for construing Section 144 as involving such a consequence. Thus, the Frady rule is inapplicable to this claim.5
Regarding Norris’ “jury prejudice” claim, the majority cites Savage v. United States, 547 F.2d 212 (3d Cir. 1976), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977). However, although perhaps facially similar to the waiver ground suggested by the majority in the instant case, the actual basis for the decision in Savage was the court’s characterization of the defendant’s constitutional right. Quoting from Ristaino v. Ross, 424 U.S. 589, 597, 96 S.Ct. 1017, 1021, 47 L.Ed.2d 258 (1976), the Savage court acknowledged that a criminal defendant has a constitutional right to have the trial court ask prospective jurors “questions designed to identify racial prejudice” upon request. 547 F.2d at 217. Absent such a request, however, the defendant’s right simply has not been abridged. In this regard, Savage is like Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (right not to be compelled to stand trial in prison clothes not abridged absent a request not to be so tried).
Thus, Savage is not authority for applying a waiver analysis to Norris’ “jury prejudice” claim, although I acknowledge that in the instant case under either a waiver analysis or the analysis which I have suggested Norris would lose. Nevertheless, because the distinction may be significant in other eases, I would not characterize Norris’ failure to request questions about the jurors’ racial prejudice as a waiver subject to the “cause and actual prejudice” standard in a section 2255 proceeding. It is some consolation that with respect to Norris’ “judge bias” and “jury prejudice” claims the majority does not decide whether Norris’ failure to raise them at trial bars his litigation *908of them in the instant petition, absent “cause and actual prejudice.” Ante at 901-902.
III.
The majority’s treatment of Norris’ failure to appeal is fundamentally flawed because it conflicts with well-established and controlling precedents of the Supreme Court. Thus, the habeas petitioner in Fay v. Noia, supra, unsuccessfully sought to suppress his confession at trial. However, because he could have received the death penalty if retried following a successful appeal, he did not further contest the admission of the confession in the state courts by appealing his conviction. The Court held that, because it was not a “deliberate bypass,” the petitioner’s failure to challenge the admission of his confession on appeal did not preclude federal habeas relief on the basis of the coerced confession claim. Six years later, in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), the Court held that a federal prisoner who had properly presented a fourth amendment claim at trial, but had not raised it on direct appeal, could obtain section 2255 relief on that claim because his failure to raise it on direct appeal also was not a “deliberate bypass.”
Then, in Davis v. United States, supra, the Court first applied the “cause and actual prejudice” standard to bar a federal prisoner’s litigation in a section 2255 proceeding of a grand jury discrimination claim which he had not raised by motion before trial, as required by Fed.R.Crim.P. 12(b)(2). The Davis Court distinguished Kaufman on the ground that Kaufman did not implicate a rule such as Criminal Rule 12(b)(2) but involved a failure to appeal. 411 U.S. at 239-40, 93 S.Ct. at 1581.6
The majority demeans Davis when it states that it simply “repeated the holding in Kaufman . . . . ” Ante at 902. Davis explicitly acknowledged a distinction between a failure to raise a claim at trial and a failure to appeal. This distinction is a necessary predicate of the Davis decision. Under Fay and Kaufman, the preclusive effect of a failure to appeal is determined according to the “deliberate bypass” standard, not the “cause and actual prejudice” standard which the majority applies here. Moreover, contrary to the majority’s assertion, Wainwright v. Sykes, supra, undermined neither Fay nor, by implication, Kaufman, because it involved a failure to raise a claim at trial, and not a failure to appeal an issue which had been properly presented at trial.7 In this regard, the Sykes court expressly stated:
We have no occasion today to consider the Fay rule as applied to the facts there confronting the Court. Whether the Francis [v. Henderson, supra] rule should preclude federal habeas review of claims not made in accordance with state procedure where the criminal defendant has surrendered, other than for reasons of tactical advantage, the right to have all of his claims of trial error considered by a state appellate court, we leave for another day.
*909The Court in Fay states its knowing- and-deliberate-waiver rule in language which applied not only to the waiver of the right to appeal, but to failures to raise individual substantive objections in the state trial. Then, with a single sentence in a footnote, the Court swept aside all decisions of this Court “to the extent that [they] may be read to suggest a standard of discretion in federal habeas corpus proceedings different from what we lay down today . . . . ” 372 U.S. at 439 n.44, 83 S.Ct. at 849. We do not choose to paint with a similarly broad brush here.
Wainwright v. Sykes, 433 U.S. at 88, 97 S.Ct. at 2507.
I disagree with the majority’s statement that “Frady casts sufficient doubt on the continued viability of Kaufman to allow us to consider, as an original matter, whether the failure to appeal on a ground later raised in a section 2255 motion should bar the motion unless good cause for not appealing is shown.” Ante at 903-904. The Court had no occasion to, and did not, reconsider Kaufman in Frady, as the majority concedes. Ante at 902-903. “[I]t is perilous to rest [a] decision on general language in an opinion . . . . ” Id. Nevertheless the majority’s conclusion depends almost entirely on such language in Frady.
The majority urges that we seek out the living law and not be content with the dead. Ante at 904. I would be the last to denigrate this unexceptionable aspiration, but somehow I do not recognize it in the form discerned by the majority. We are not here to predict, even when there is controlling Supreme Court precedent, “how the Supreme Court will decide particular issues when presented to it for decision.” Ante at 904. (This is not a case in which there is no Supreme Court precedent on point, but one in which the determinative question has been definitively answered by the Court fairly recently.) Somehow stare decisis has come a cropper if we are to seriously pursue the majority’s approach. .Any hope of certainty must be abandoned if the majority has its way. More than the inclinations of a majority of the Supreme Court, or of a panel of the court of appeals, must shift before a controlling precedent can be declared defunct. See White v. Finkbeiner, 687 F.2d 885, 889-890 (7th Cir. 1982), cert. filed, (June 18, 1982).8
The question decided by the majority is not one of Constitutional law, as the majority apparently believes, ante at 9, but one of statutory interpretation. Stone v. Powell, 428 U.S. 465, 481 n.16, 96 S.Ct. 3037, 3046 n.16, 49 L.Ed.2d 1067 (1976) (“The issue in Kaufman was the scope of § 2255.”).9 Only the other day, the Supreme Court discussed some of the factors it considers when determining whether to overrule or reconsider one of its prior decisions interpreting a statute. See Patsy v. Florida Board of Regents, - U.S. -, -, 102 S.Ct. 2557, 2560, 73 L.Ed.2d 172 (1982). These factors include: whether the decision misconstrued the meaning of the statute as revealed by the legislative history; whether overruling the decision would be inconsistent with *910more recent expressions of Congressional intent; whether the decision constituted a departure from prior decisions; and whether overruling the decision would frustrate legitimate reliance on it. The majority does not even discuss these factors, but apparently none of them are satisfied in the instant case. We are not the Supreme Court, and our role in directing the ebb and flow of habeas jurisdiction is drastically more limited than that of the Court. Cf. White v. Finkbeiner, supra, 687 F.2d at 890 (prudence dictates leaving expansion of Stone v. Powell to Supreme Court). Finally, we should be exceedingly reluctant to “reconsider” Supreme Court precedent. Thus, as discussed in Part II, supra at 906-907, see also Wainwright v. Sykes, 433 U.S. at 81, 97 S.Ct. at 2503, although the Court perhaps has not been especially unwilling to reconsider its decisions construing the habeas statutes, we ought to be.
Returning to the procedural merits, it seems only fair to apply a different, and more forgiving, waiver standard to a failure to appeal than the standard applied to a failure to raise an issue at trial. Procedural defaults at trial do not require, and usually do not involve, a personal choice on the part of an untutored defendant. Rather, they are made by counsel, who presumably knows the law and acts in a calculating manner. On the other hand, the decision to appeal, such as the choice faced by the petitioner in Fay v. Noia, implicates “the exercise of volition by the defendant himself. ...” Wainwright v. Sykes, 433 U.S. at 92, 97 S.Ct. at 2509 (Burger, C. J., concurring). Thus, the decision to appeal is like the decision to enter a plea of guilty. In both' cases, it is unreasonable to give preclusive effect to the decision absent proof that the defendant personally made an informed and calculated choice. The “deliberate bypass” standard requires such proof while the “cause and actual prejudice” standard does not. Also, unlike the failure to raise an issue at trial, which might enable the trial court to correct or avoid an error, a failure to appeal does not itself contribute to the introduction of additional error. See Henderson v. Kibbe, 431 U.S. at 157-58, 97 S.Ct. at 1738 (Burger, C. J., concurring); Mullaney v. Wilbur, 421 U.S. 684, 704 n.*, 95 S.Ct. 1881, 1892 n.*, 44 L.Ed.2d 508 (1975) (Rehnquist, J., concurring). Finally, to the extent that application of the “cause and actual prejudice” standard to an “appellate default” protects against “sandbagging” more efficaciously than application of the “deliberate bypass” standard, the “laches” doctrine, which also applies in habeas proceedings, see Rule 9, Rules Governing § 2254 Cases; Rule 9, Rules Governing § 2255 Cases and Advisory Committee Notes, ensures that habeas relief will not be granted where a petitioner has delayed bringing his claim so-long that the State or the Government has been prejudiced.
The majority states that in some cases there may be certain good reasons to permit a prisoner who has not raised a constitutional issue on direct appeal that he preserved at trial to raise that issue in a habeas proceeding. The reasons suggested are: incompetent counsel in the first appeal, newly discovered evidence, or an intervening change in the law. The majority is reassured that where such a good reason exists, a petitioner will be permitted to litigate a claim which otherwise would have been waived. Ante at 903-904. But, this analysis holds out a false hope, if only because it ignores the other half of the standard the majority applies — “actual prejudice.” Consider Norris’ judge bias claim. Even if Norris could overcome the first hurdle — “cause” — he still would have to demonstrate “actual prejudice.” Does this mean he would have to cite trial court rulings which, but for the judge’s alleged bias, would have been made more favorably to the defendant? Or does “actual prejudice” suggest that more favorable rulings would have resulted in a more favorable verdict? If, as the majority asserts, the “deliberate bypass” standard places an impossible burden of proof on the Government, Ante at 904, then surely the same must be said of the burden placed on pris*911oners by the “cause and actual prejudice” standard.10
For all of these reasons, I would apply the “deliberate bypass” standard to Norris’ suggestive identification claim. Because nothing in the record reveals such a calculated choice, I would dispose of this claim on its merits rather than on a waiver theory-
Turning to the merits of the photo-spread claim, I agree that Norris is not entitled to habeas relief. Identification testimony may not be introduced where it derives from identification procedures that are “so impermissively suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see Manson v. Braithwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). The focus of the court’s inquiry must be on the likelihood of irreparable misidentification, Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Even if the challenged identification procedure may be considered suggestive, the “corrupting effect” of the suggestiveness must be weighed against the indicia that the identification was nevertheless reliable. Manson v. Braithwaite, 432 U.S. at 114, 97 S.Ct. at 2253. Factors indicating reliability include: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation.” Id., citing Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382.
Unfortunately, the present record does not contain the allegedly suggestive photographic display that was introduced at trial. The display was returned to the FBI after the trial, and the FBI’s system of filing physical evidence after trial apparently is such that the display probably cannot be retrieved.11 Under these circumstances, we should accept, arguendo, Norris’ assertion of suggestiveness. Nevertheless, the question remains whether the identification testimony was therefore unreliable. More specifically, the question for this court is whether the record contains any indication of unreliability sufficient to warrant further investigation into the fairness of Norris’ trial by way of an evidentiary hearing. It does not.
Smith originally selected Norris’ picture from “around five or six” photographs shown to him by an agent of the FBI. At the suppression hearing, when Smith was shown the photographic display, he immediately selected Norris’ photograph and stated, “That’s the one I knowed as Ace.” He further testified that he was not sure if the other pictures were the same ones the FBI agent had shown him, and that he was only sure of Norris’ photograph. In addition, he testified that when he was first shown the photographic display, he only went through it once to find the picture of the man he knew as Ace.
The only suggestion in the record of the unreliability of Smith’s identification of *912Norris is that Smith was unable to make an in-court identification of him. But there was considerable testimony, including Norris’ own admission, that Norris’ appearance had changed drastically between the time Smith had dealings with him and the time of trial. Moreover, this issue was exhaustively considered at the trial. Norris’ attorney argued forcefully, both to the trial judge during the suppression hearing, and to the jury at closing argument, that Smith’s inability to make an in-court identification, coupled with what counsel urged was the suggestive nature of the photo display, rendered Smith’s identification of Norris unreliable. Finally, beyond asserting that none of the other photographs resembled his, Norris alleges nothing that tends to show that Smith’s identification testimony was unreliable. Thus, nothing in the record or in Norris’ motion supports the conclusion that there was “a very substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384, 88 S.Ct. at 971. For this reason, Norris photospread claim does not warrant collateral relief.
In conclusion, for reasons I have discussed above, I regard “[tjoday’s decision [as] a conspicuous exercise in judicial activism . .. . ” Engle v. Issacs, - U.S. -, 102 S.Ct. 1558, 1576, 71 L.Ed.2d 783 (1982) (Brennan, J., dissenting). Thus, I join only part of the majority opinion but concur in the judgment affirming the district court’s denial of Norris’ section 2255 petition.
. Of course, to the extent that a deliberate bypass has been shown, I would agree that the instant petition would be barred.
. But, as discussed above, a fair reading of the district court’s memorandum and the Government’s brief would not have indicated to Norris that it would be necessary to discuss whether “deliberate bypass” was still the applicable waiver test with respect to his identification and bias claims. Although the district court and the Government cite Wainwright, both rely on the “deliberate bypass” test. As indicated in note 1, supra, “to the extent that a deliberate bypass has been shown, I would agree that the instant petition would be barred.”
. The Frady Court did not consider the “cause” for the defendant’s procedural default because it found that no “actual prejudice” had resulted from the giving of the challenged instruction. Thus, it found that the petitioner could not litigate the jury instruction claim in a section 2255 proceeding. 102 S.Ct. at 1595-98.
. The District of Columbia Circuit has also acknowledged that, absent an applicable “contemporaneous objection” rule, the preclusive *907effect of a failure to raise an issue at trial must be determined according to the “deliberate bypass” standard. However, more recently, that court has questioned the continued viability of its rule in the light of Wainwright v. Sykes, and directed the district court to consider the question after conducting an evidentiary hearing. United States v. Barnes, 610 F.2d 888, 893-94 (D.C.Cir.1979). Similarly, as noted above, we have not had the benefit of briefing, oral argument, or a lower court decision on this issue in the instant case. Thus, at the very least, the majority has not exercised what I would regard as proper judicial restraint.
. On the merits of this claim I would simply hold, as did the district court, that Norris’ allegations of bias, most of which concern adverse trial court rulings, are simply insufficient. See United States v. English, 501 F.2d 1254 (7th Cir. 1974).
. In both Sincox v. United States, 571 F.2d 876 (5th Cir. 1978), and Ramsey v. United States, 448 F.Supp. 1264, 1273-74 (N.D.Ill.1978), up.on which the majority relies, ante at 902, there is no discussion of the distinction between procedural defaults at trial and on appeal, which was acknowledged in Davis.
. The often stated principle that a federal prisoner may not use a section 2255 proceeding as a substitute for a direct appeal, Frady, 102 S.Ct. at 1593, ante at 902-903, has nothing to do with the waiver doctrine. Rather, this principle limits the issues cognizable in a collateral attack on a federal conviction. E.g., United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (technical violation of Criminal Rule 11); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (failure to invite defendant to speak at sentencing); cf. Hussong v. Warden, Wis. State Reformatory, 623 F.2d 1185 (7th Cir. 1980) (federal habeas relief unavailable to state prisoner on claim that evidence seized in violation of federal wiretap statute was admitted at trial). As a means of ensuring that the writ is utilized only to correct manifest injustice, a limitation on the issues cognizable may be more sensible than procedural barriers. Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 1213-20, 71 L.Ed.2d 379 (1982) (Stevens, J., dissenting).
. To the extent that we should base our decisions on our ability to prognosticate how the Supreme Court currently would decide a question, I am not as sure as the majority that the Court now would abandon the pertinent aspects of Fay, Kaufman, and Davis. As indicated, infra at 909-910, the Chief Justice and Justice Rehnquist, surely two of the Court’s leaders in the movement to curtail habeas jurisdiction, have recognized in their opinions that there is a valid distinction between a procedural default at trial and a failure to appeal. Indeed, Davis which first articulated this distinction was written by Justice Rehnquist. Justices Powell and Stevens, on the other hand, have indicated a preference for limiting habeas jurisdiction along substantive lines rather than by application of “gatekeeping” rules. See note 7, supra; see also Schneckloth v. Bustamonte, 412 U.S. 218, 250-75, 93 S.Ct. 2041, 2059-72, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). Thus, it is not clear to me that five justices currently would adopt the majority’s approach, at least, not in the .face of contrary Supreme Court precedent. Certainly, it is not clear enough to be the basis of our decision here.
. Of course, if Fay, Kaufman, and Davis do rest on Constitutional ground, today’s decision is all the more inappropriate.
. A similar proof problem is presented with respect to other claims which might be presented in a collateral attack. For example, assuming that ineffective assistance of counsel constitutes “cause,” to raise such a sixth amendment claim in a section 2255 proceeding a prisoner also would have to show that effective counsel would have secured a more favorable outcome. The impossibility of making such a demonstration is well-recognized. Thus, in related contexts, such a demonstration is not required. See Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). See also Engle v. Issacs, 102 S.Ct. at 1580 (“[O]n the Court’s present view it will prove easier for a camel to go through the eye of a needle than for a state prisoner to show “cause.”) (Brennan, J., dissenting).
. Counsel for the Government has informed the clerk of this court that the photographic display might possibly be reconstructed. A reconstructed record, of course, would be better than none at all. However, in light of my conclusion that, even if the display might be considered suggestive, Smith’s identification of Norris was nonetheless reliable, we need not view the actual or reconstructed photographic display in order to decide the instant case.