concurring in part and dissenting in part.
In Norris v. United States, 687 F.2d 899, 904 (7th Cir.1982), I filed a concurring opinion in which I took issue with the view of the majority that the petitioner in that case had waived his right to habeas relief as to three of his claims because he failed to raise them on direct appeal. I concurred in the Norris result, however, because I rejected on their merits the three constitutional claims which the majority there determined were waived by failure to appeal. Norris, as Judge Pell points out, involved a federal prisoner seeking relief under 28 U.S.C. § 2255, as distinguished from a state prisoner like Spurlark seeking federal habeas relief under 28 U.S.C. § 2254. Although, for the reasons set forth there at length, I do not regard Norris as having been correctly decided, I have accepted it as the law of this circuit. In dicta, I have also (apparently too hastily) accepted the Norris principle as applicable to state prisoners. See United States ex rel. Williams v. Franzen, 687 F.2d 944, 950 (7th Cir.1982), which I wrote for a unanimous panel. Judge Pell has now seen fit (I think wisely, although I do not agree with his analysis) to replow much of the Norris ground in this en banc proceeding where, unlike Norris, the petitioner is represented by counsel and there *363has been oral argument. Judge Pell also notes that Norris is not controlling as to state prisoners, who have not had an opportunity to present their claims in a federal forum. Against this factor, as Judge Pell again notes, weigh comity principles which are arguably implicated when a state prisoner does not present a claim, as to which he seeks federal habeas relief, in state court. Apparently, in the Franzen dictum, I focused on the comity considerations alone and assumed that the Norris rule applied a fortiori to state prisoners seeking federal habeas corpus relief.
Judge Pell has again presented arguments similar to those advanced by the majority in Norris (although in the somewhat different context of a state prisoner). Although I believe the issue here is better developed for our consideration than it was in Norris, the same basic considerations are involved. Therefore, I must record my dissent on this branch of the case, relying on the relevant portions of my Norris concurrence at 687 F.2d 904. Inter alia, as I pointed out in my Norris concurrence, the Supreme Court in Davis explicitly acknowledged a distinction between a failure to raise a claim at trial and a failure to appeal. And Davis was written by Justice Rehnquist, certainly a leader in the movement to curtail habeas jurisdiction. Fay, Kaufman and Davis are the controlling Supreme Court precedents; as they apply to failures to appeal, they have not been overruled; and it is by no means clear to me that a majority of the Court now would abandon their pertinent aspects. In any event, I adopt the relevant portions of my concurrence in Norris as in point here.
I am inclined, however, to believe that the state trial judge, under all the unusual circumstances of this case, did not commit constitutional error in exercising his discretion to deny Adam leave to appear at sentencing; and, if there was error, it appears to have been harmless. See United States ex rel. Spurlark v. Wolff, 683 F.2d 216, 222 (7th Cir.1982) (Pell, J., Concurring and dissenting). I therefore concur in the result.