concurring.
The history of this case illustrates not only the foolishness and inefficiency, but more importantly the injustice which results when courts rigidly apply procedural rules in post-conviction proceedings without regard to the function and importance of the writ. Important and legitimate policies *795underlie many of the procedures which must be followed in order to obtain a writ of habeas corpus. Rules of procedure insure comity1 and protect the finality of previous decisions.2 But these policies are not always paramount, are sometimes not implicated by a particular case, and occasionally may even be frustrated by the application of procedural rules designed to advance the policies.
Courts should be continually aware that the principal function of the writ of habeas corpus is the vindication of federal constitutional rights. Courts and legislators should also consider the realities of habeas corpus litigation. Most petitioners do not have assistance of counsel, most are confined in prisons, and many are poorly educated. These facts underlie the judicial policy of liberally construing petitions for habeas relief. See Hill v. Wyrick, 570 F.2d 748, 751 (8th Cir.1978).
In order to merit federal respect, state procedures must respect the importance of federal constitutional rights and recognize the plight of those who seek vindication of their rights after criminal conviction. In Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170 (1947), the Supreme Court confronted a situation similar to that evidenced by this case. Illinois had several procedures for collaterally attacking convictions. Petitioners often followed the wrong procedure and were denied relief in state court. The Supreme Court and other federal courts consistently refused to review the petitioners’ claims on their merits until the petitioners exhausted available state remedies. In Marino, paralleling this case, the state argued in its own court that the petitioner had chosen the wrong remedy, and then it confessed error before the Supreme Court. The Court reversed and remanded the case to the state court. In a concurring opinion, Justice Rutledge wrote:
The trouble with Illinois is not that it offers no procedure. It is that it offers too many, and makes them so intricate and ineffective that in practical effect they amount to none. The possibility of securing effective determination on the merits is substantially foreclosed by the probability, indeed the all but mathematical certainty, that the case will go off on the procedural ruling that the wrong one of several possible remedies has been followed.
Id. at 565, 68 S.Ct. at 242 (footnote omitted).
Justice Rutledge concluded that the procedural barriers rendered state remedies unavailable and that the petitioner had thus satisfied the exhaustion requirement:
The Illinois scheme affords a theoretical system of remedies. In my judgment it is hardly more than theoretical. Experience has shown beyond all doubt that, in any practical sense, the remedies available there are inadequate. Whether this is true because in fact no remedy exists, or because every remedy is so limited as to be inadequate, or because the procedural problem of selecting the proper one is so difficult, is beside the point.. ..
Consequently, as far as I am concerned, the Illinois remedies are exhausted here....
Id. at 569-70, 68 S.Ct. at 244-45 (footnote omitted).
Because constitutional rights are implicated and because petitioners are seldom assisted by counsel, procedural rules should not be technically construed. Justice Stevens recently wrote, “When a person’s liberty is at stake,"... there surely is no justification for the creation of needless procedural hurdles.” Rose v. Lundy, 455 U.S. 509, 550, 102 S.Ct. 1198, 1220, 71 L.Ed.2d 379 (1982) (Stevens, J., dissenting). Procedural barriers should not be used to discourage po*796tential petitioners — for such devices will block meritorious petitions as well as frivolous petitions. See id. Nonmeritorious petitions should not be disposed of on procedural grounds when courts could decide them on their merits. Such tactics are not only dishonest but cruel because they allow prisoners to continue to hope and work for relief when no relief is possible.
This case is also an example of how technical application of procedural rules protracts litigation and frustrates the courts’ interest in finality. Instead of analyzing the merits of the petitioner’s claims, the state courts and federal trial court forced Ashby to repeatedly raise his claim in different forums and different forms. Efficiency requires flexible application of procedural rules. See Rose v. Lundy, 102 S.Ct. at 1217 (Stevens, J., dissenting).
A flexible interpretation of procedural rules is necessary to adequately protect constitutional rights and to promote efficiency. In 1973, Justice Brennan wrote:
[H]abeas corpus is not “a static, narrow, formalistic remedy,” Jones v. Cunningham, supra, 371 U.S. 236, at 243, 83 S.Ct. 373, at 377, 9 L.Ed.2d 285 but one which must retain the “ability to cut through barriers of form and procedural mazes.” Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969). See Frank v. Mangum, 237 U.S. 309, 346, 35 S.Ct. 582, 594, 59 L.Ed. 969 (1915) (Holmes, J., dissenting). “The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, supra, at 291, 89 S.Ct., at 1086. -
Thus, we have consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.
Hensley v. Municipal Court, 411 U.S. 345, 349-50, 93 S.Ct. 1571, 1573-74, 36 L.Ed.2d 294 (1973).
Courts should, whenever they have the power and competence to do so, construe petitions and procedural rules in a manner which enables them to determine if petitioners’ federal constitutional rights have been violated. As Justice Stevens wrote, “The availability of habeas corpus relief should depend primarily on the character of the alleged constitutional violation and not on the procedural history underlying the claim.” Rose v. Lundy, 102 S.Ct. at 1218-19 (Stevens, J., dissenting).
In the present case, this entire proceeding could have been determined and closed in favor of the state, or alternatively, could have vindicated the defendant’s claim of prejudicial error without further proceedings months or years ago if the state court had not been determined to set up procedural roadblocks to a lay petitioner. It is absurd to think that additional procedural roadblocks will deter prisoners from filing petitions to seek their release. Both federal courts and state courts who attempt to provide deterrents to prisoners by procedural technicalities only make work for themselves. It is true that procedural rules serve important policies as well. However, courts which too willingly enter into discussion of complicated and technical problems of exhaustion, which tackle procedural bypass questions with detailed determinations of “cause” and “prejudice,” could conclude the proceedings more expeditiously by going directly to the merits. Post-conviction cases rarely result in relief; state and federal trial courts, now long familiar with established constitutional process, generally toe the constitutional mark. The merits of a case are more easily decided than the litigation of technical problems presented by procedural rules. The point’ is that all courts should be more resourceful by passing on the merits of all claims as soon as possible, rather than resorting to intricately involved procedural concerns which only serve to extend simple issues into protracted and frustrating satellite litigation. The real losers are the courts themselves.
. See Engle v. Isaac, 456 U.S. 107, 127, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982); Schneckloth v. Bustamonte, 412 U.S. 218, 263-65, 93 S.Ct. 2041, 2066-67, 36 L.Ed.2d 854 (1973) (Powell, J., concurring).
. See Engle v. Isaac, 456 U.S. at 127, 102 S.Ct. at 1571; Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi. L.Rev. 142, 145-46 (1970); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 442 (1963).