dissenting.
I respectfully dissent. Devine’s ineffective assistance claim may or may not have merit, but I have no reason to believe it has been waived.
The record shows that on his initial appeal, Devine was represented by counsel from the same firm that represented him at trial.1 Whatever may have been the procedural determinations of the state courts, that identity — of record — of trial and appellate counsel is sufficient “cause” to overlook the alleged state default. No doctrine of comity requires the federal courts to defer to state court determinations which are in conflict with the facts of record. No lawyer on appeal is expected in either state or federal jurisprudence to argue his own *769or his firm’s incompetence at trial as a ground of appeal.1 2
Hence I do not believe Devine’s ineffectiveness of trial counsel claim has been waived. It should have been considered by the district court on the merits.
. Devine alleged in his habeas petition that he had the same attorney at trial and on appeal. The name of the trial attorney is in the habeas petition, the name of appellate counsel is in the state court opinion, 55 Ill.App.3d 576, 13 Ill.Dec. 327, 327, 371 N.E.2d 22, 22 (1977), and Sullivan’s Law Directory for 1975-1976 shows that they were in the same firm.
. I agree that the ineffective assistance of appellate counsel argument has been waived.