dissenting.
I respectfully dissent. I would remand for a determination of whether Widgery “deliberately bypassed” an appeal in favor of a section 2255 proceeding. Widgery’s claim is that the government violated his right to due process as interpreted in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); see also United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976) (fifth amendment), by failing to inform him that a key government witness, Harvey Jefferson, had been promised immunity from prosecution in exchange for cooperation in helping to convict him.1 Widgery submits that Jefferson, in an October 4, 1982, affidavit and in sworn testimony, stated that in May, 1979, the FBI asked him to place a hidden microphone on his body and set up a meeting with Widgery. “I understood this was necessary to guarantee my immunity. Before giving testimony for the government at the trial in Kansas City, my attorney and I personally spoke with Mr. Ronald Reed, the U.S. Attorney, regarding my testimony and making sure I was not going to be prosecuted. It was my understanding that I would not be prosecuted if I would cooperate with the government.” Jefferson went on to state that, “[sjince the trial in Kansas City, I have discovered that Mr. Widgery was convicted of supplying bogus purchase orders of car-wash equipment for *227Haskell Stone and Charles Howell, and that he received wire transfers as advances on commissions on fraudulent orders. I know personally that both Haskell Stone and Charles Howell ordered car-wash equipment and that they received money from the wire transfers to get started with their car wash. The money I received from these advances I considered as loans.” On October 5, 1982, Widgery raised this issue in a motion for a new trial, or, in the alternative, for an evidentiary hearing. The district court denied the motion without an evidentiary hearing. Widgery filed an appeal but failed to prosecute it and, on June 14, 1983, this Court dismissed the appeal on its own motion. United States v. Widgery, No. 82-2323 (8th Cir. July 14, 1983) (unpublished).
Widgery then filed this section 2255 motion raising, inter alia, the issue concerning Jefferson’s alleged “deal” with the government. The district court refused to consider the merits of Widgery’s claim on the ground that his failure to prosecute his appeal due to misunderstanding or a belief that a section 2255 motion “would be more expeditious” was an abuse of process because it did not constitute “cause” under United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The majority now affirms this result, apparently on the ground that the district court did not abuse its discretion.
My primary disagreement with the majority’s opinion is that it leaves confusion over the correct standard to be applied for determining whether Widgery’s failure to prosecute his appeal bars his present section 2255 motion, even though this question has already been settled in this Circuit by our controlling decision in United States v. Little, 608 F.2d 296, 300 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1053, 62 L.Ed.2d 777 (1980). There, we reiterated that habeas petitions raising issues which were not raised on direct appeal are not barred unless there was a “deliberate bypass” of the appeals process. Despite this controlling ruling, the trial court rather applied the “cause and prejudice” standard set forth in Frady, 456 U.S. 152, 102 S.Ct. 1584, which applies where a habeas petition seeks relief based on trial errors to which a required contemporaneous objection was not made. Frady, 456 U.S. 152, 102 S.Ct. 1584); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (In absence of showing of “cause and actual prejudice,” state prisoners’ federal habeas challenge to admission of confession barred by failure to comply with state law requiring a pretrial challenge to admissibility.); Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (State prisoners’ federal habeas challenge to jury instructions barred in absence of showing of “cause and actual prejudice” justifying failure to comply with state’s contemporaneous objection rule.); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (State prisoner who failed to comply with state law requiring contemporaneous objection to composition of grand jury barred, in absence of showing of “cause and prejudice,” from challenging grand jury composition in federal habeas proceeding.); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973) (“Cause and prejudice” standard first applied where federal habeas petitioner failed, during trial court proceedings, to comply with federal contemporaneous objection rule.).
Because this case, like Little and unlike the Davis line of cases, involves failure to appeal an issue rather than failure to raise it at trial, the district court should have applied the “deliberate bypass” standard first set forth in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). In Fay, the habeas petitioner unsuccessfully moved to suppress admission of his confession at trial. He failed to appeal this decision because he could have received the death penalty if retried following a successful appeal. The Court held that Fay’s failure to appeal the admission of his confession did not preclude habeas relief on his coerced confession claim because he had not “deliberate[ly] bypass[ed]” the appeals process. Six years later, in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, *22822 L.Ed.2d 227 (1969), the Court held that a federal prisoner who had properly raised a fourth-amendment claim at trial, but had not raised it on direct appeal, could obtain section 2255 relief because he had not “deliberate[ly] bypass[ed]” raising the issue on direct appeal. The Court’s footnote number 8 stated:
Where a trial or appellate court has determined the federal prisoner’s claim, discretion may in a proper case be exercised against the grant of a § 2255 hearing—
Furthermore, the § 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided at or before trial and by way of appeal— e.g., motion to suppress under Fed.Rule Crim.Proc. 41(e) or appeal under Fed. Rule App.Proc. 4(b). Fay v. Noia, supra, [372 U.S. 391,] n. 3, at 438 [83 S.Ct. 822 at 848], 9 L.Ed.2d 837 at 868; Henry v. Mississippi, supra, [379 U.S. 443,] n. 3, at 451-452 [85 S.Ct. 564 at 569, 570] 13 L.Ed.2d 408 at 414, 415.
Kaufman, 394 U.S. at 227, n. 8, 89 S.Ct. at 1074, n. 8.
The parties fail to cite and my research fails to reveal any decision of this Court applying the “cause and prejudice” standard to habeas cases raising an issue properly raised in trial court proceedings but not raised on direct appeal.
Although the majority’s citation to Little indicates the continuing applicability of the “deliberate bypass” standard,2 I disagree with its conclusion that the district court *229essentially applied this standard. The district court explicitly found that Widgery’s habeas petition on the Jefferson “deal” is barred because his failure to appeal due to misunderstanding of the appropriate procedure does not constitute “cause” under Frady. Although the district court then stated in passing that Widgery deliberately chose not to appeal, it did not apply, or take evidence on, whether this failure constitutes a “deliberate bypass” of the appeals process as that term has been construed by the courts. In Montgomery v. Hopper, 488 F.2d 877, 879-80 (5th Cir.1973), the Court noted that “[t]he term ‘deliberate bypass’ is one of art [which essentially means] that [the petitioner] deliberately bypassed his right of appeal * * * to gain * * tactical or strategic advantage in the pursuit of his claims.” See also Caceres, 745 F.2d at 936 n. 2 (“Constitutional issues may be raised in a section 2255 motion, though not raised on direct appeal, as long as the movant has not deliberately bypassed the appellate process in order to gain tactical advantage.”); Capua, 656 F.2d at 1033 (Proof of deliberate bypass generally requires showing that the petitioner sought to gain tactical or strategic advantage by foregoing direct appeal.); Sosa v. United States, 550 F.2d 244, 248 (5th Cir.1977) (Court holds that the Sosas had not deliberately bypassed their appeal in favor of a section 2255 motion because there was no evidence of an attempt to gain strategic or tactical advantage. The Court agreed with the Sosas’ contention that “they only ‘tried to expedite the instant case at the least expense and with the least inconvenience to this Court.’ ”). Additionally, numerous cases have held that there is no “deliberate bypass” unless the record clearly indicates that “[appellant’s right to appeal was voluntarily and understandably waived.” McKnight, 507 F.2d at 1036 (citation omitted). See also, e.g., Kaufman, 22 L.Ed.2d at 233-34 n. 3 (No conscious waiver of appeal.); Capua, 656 F.2d at 1037 (“Failure to appeal directly a constitutional claim of error will not bar habeas relief under section 2255 absent a deliberate choice not to appeal made by conscious election.”). Case law also requires that, before a habeas petition be barred due to a deliberate bypass of the appeals process, a record be established clearly showing that there was a “deliberate bypass” as these terms have been construed. United States v. Caceres, 745 F.2d 935, 936 n. 2 (5th Cir.1984) (“Unless the record clearly establishes a deliberate bypass of direct appeal, the issue requires an evidentiary hearing.”); United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.1981) (Same.); McKnight v. United States, 507 F.2d 1034, 1036 (5th Cir.1975) (“[W]here a district court intends to use [the Kaufman] rationale for denying a Sec. 2255 motion, this Court requires that the lower court’s decision not only indicate a finding of deliberate bypass, but also reflect sufficient evidentiary development therefor.”); Morris v. United States, 503 F.2d 457, 458 (5th Cir.1974) (Court will not assume abandonment of the right to appeal from a criminal conviction unless facts clearly supporting such an assumption are developed on the record.).
To this point, the government has presented no evidence that Widgery deliberately bypassed his appeal to gain tactical or strategic advantage or that he voluntarily and understanding^ waived his right to appeal. Nonetheless, I would remand to the district court to give the government the opportunity to make such a showing in the district court. Widgery alleges that, as a pro se litigant, he was unaware that his failure to prosecute his appeal would bar relief under section 2255. He contends that he was confused by the district court’s statement that he should bring his ineffective assistance of counsel claim under section 2255 and by the government’s suggestion in response to his fourth motion for new trial filed October 28, 1982, that “[defendant's proper remedy at this time is to proceed under 28 U.S.C. § 2255.” In light of these suggestions, Widgery’s pro se status and the complexity of the law in this area, it is understandable how Widgery could have been confused as to the proper method for getting a determination on the merits of his claim.
*230Finally, it is important to note that Widgery has never had a hearing on the merits of this important claim involving the integrity of the judicial process, see Bass, 628 F.2d at 1207, and that the dispute over claim five to be in large measure a factual one. The government’s brief contends that no “deal” was ever made with witness Jefferson and that Jefferson’s affidavit is incompetent evidence. In light of its heavy reliance on these factual contentions, the government in all fairness might be well advised to waive its reliance on procedural bars to Widgery’s claim and request an evidentiary hearing on the merits where it could resolve Widgery’s claim once and for all.
. - Widgery points out that he specifically requested any information regarding promises of immunity or leniency to government witnesses. Prior to the United States Supreme Court’s decision in United States v. Bagley, — U.S. —, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), analysis of whether evidence was sufficiently material to require its disclosure turned in part on whether a "specific” or merely "general” request was made for disclosure. In United States v. Hogan, 769 F.2d 1293 (8th Cir.1985), we pointed out that Bagley implicitly rejected these distinctions and that "[a] majority of the Supreme Court now seems to agree that irrespective of the specificity of a request for evidence made by the defense, for purposes of a Brady inquiry if either exculpatory or impeachment evidence is suppressed by the prosecution, and if the evidence is material, reversal is warranted." 769 F.2d at 1299, 1299 n. 9. But see Patterson v. Black, 791 F.2d 107, 110 n. 2 (8th Cir.1986) (Judges Hanson and Heaney disagreeing with Hogan's interpretation of Bagley, but accepting Hogan as binding precedent.).
. The Court’s failure to adequately discuss the relevant standard is particularly troubling in light of the relatively recent extension, by a divided panel of the United States Court of Appeals for the Seventh Circuit, of the "cause and prejudice" standard to habeas cases involving a failure to appeal. Norris v. United States, 687 F.2d 899 (7th Cir.1982). The majority in Norris concluded that “Frady casts sufficient doubt on the continued viability of Kaufman to allow us to consider as an original question whether 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.” 687 F.2d at 903. It seems clear, however, that Frady casts no doubt at all on the continued viability of the deliberate bypass standard. See Diggs v. United States, 740 F.2d 239, 243-45 (3d Cir.1984) (Court continues to apply deliberate bypass standard and specifically rejects Norris majority’s view that Frady requires application of cause and prejudice standard to habeas cases involving a failure to appeal.); Brien v. United States, 695 F.2d 10, 13 (1st Cir.1982) (Specifically rejecting argument that Frady requires application of “cause and prejudice” standard to case involving failure to raise ineffective assistance of counsel claim at trial or on direct appeal.); United States v. Caceres, 745 F.2d 935, 936 n. 2 (5th Cir.1984) (continuing to apply deliberate bypass standard after Frady); United States v. Cosentino, 685 F.2d 48, 50-51 (2d Cir.1982) (same); Bass v. Wainwright, 675 F.2d 1204, 1207 (11th Cir.1982) (same); United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.1981) (same); United States v. McDonald, 611 F.2d 1291, 1293 (9th Cir.1980) (same).
In sum. Supreme Court rulings, this Circuit's controlling precedent and every federal appeals court other than the divided panel in Norris, 687 F.2d at 899, apply the deliberate bypass standard to issues like that before us here. Seventh Circuit Judge Cudahy, dissenting in Norris, 687 F.2d at 910, well describes the policy behind this:
“[I]t 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.”
Norris, 687 F.2d at 910.
This reasoning, which Judge Cudahy directly derives from Chief Justice Burger’s concurrence in Sykes, 433 U.S. at 92, 97 S.Ct. at 2509, is fully applicable here where Widgery, a pro se litigant, failed to appeal due in large measure to his failure to understand the complex waiver standards. See also Diggs, 740 F.2d at 244.