dissenting:
I concur in Judge Murnaghan’s well-reasoned and persuasive dissenting opinion. I think that he conclusively demonstrates the error in the majority’s reasoning. I am constrained, however, to add some additional comments of my own.
I.
In its appeal, the state advances several reasons why the judgment of the district court should be overturned. One is that Meadows has not exhausted available state avenues of post-conviction relief. While I believe that the petitioner has properly exhausted his remedies under state law,15 I am disturbed by the majority’s failure to address this issue when it decides to dispose of the case by its ruling on the state’s contemporaneous objection rule. By doing so, the majority derogates from the proper authority of the state courts.
A state prisoner ordinarily may not obtain habeas corpus relief from a federal court unless he has exhausted the remedies available to him under state law. 28 U.S.C. § 2254(b), (c). The exhaustion requirement applies to each claim presented in federal habeas. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). The purpose of the exhaustion requirement is to accommodate the role of the states in the federal system by giving the state courts an opportunity to review and correct alleged violations of federal constitutional rights. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971); Picard v. Connor, supra.
Ignoring the question of whether Meadows has exhausted his state remedies, the majority proceeds to decide an important issue of state law. 1 view that as an improper judicial approach. We must first decide if there has been exhaustion because *504when we have determined in a proper case that state remedies have not been exhausted, federal principles require us to avoid “any implication as to the merits of so delicate a subject” as an interpretation of state law. Slayton v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971). In Slayton, for example, the Supreme Court criticized us because we had expressed a view on the merits of a sensitive issue of state administration of the state courts following our finding that state remedies had not been exhausted. The majority’s decision of an issue of state law in this case, without resolving whether the plaintiff has exhausted his state post-conviction remedies, likewise fails to give due deference to principles of federalism. Such an approach encourages other federal courts to reach out and touch upon issues of state law without due regard to the authority of the state courts. Indeed, the majority opinion’s purported adherence to the finality of criminal convictions has an empty ring if we may decide cases without resolving whether state remedies have been exhausted.
This derogation from the authority of the state courts is aggravated by the fact that the majority’s holding in this case cannot be reconciled with a finding that the defendant exhausted his state remedies. The majority’s opinion, viewed in the light of the state’s contention about non-exhaustion, is internally inconsistent. The majority concludes that the defendant failed to raise the issue of the improper alibi instruction on direct appeal, and that this was “a tactical decision to which the petitioner is now bound.” The remaining avenue of exhaustion was through state habeas procedures which the petitioner did pursue in original petitions to the circuit court and the Supreme Court of Appeals. These respective courts rejected both habeas petitions without mention of the state’s contemporaneous objection rule. If these original petitions failed to exhaust the petitioner’s state remedies, as the state contends, then it is clearly improper for the majority to address the merits of the contemporaneous objection issue. If those petitions were exhaustive as decisions on the merits of the petitioner’s constitutional claim, the state courts’ decision not to base dismissal of the petitions on the state’s contemporaneous objection rule means that this bar is not available as a defense against federal habeas relief.
It is well established that if a state court ignores a procedural default and decides a claim on the merits, habeas relief is not barred due to such default. Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985); Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Baker v. Muncy, 619 F.2d 327, 329 (4 Cir. 1980). Because a state contemporaneous objection rule prohibits federal habeas review only if that procedural bar is an adequate and independent state ground for the decision of a state court, the rule barring habeas relief due to procedural default is only available where it is clear from the plain language of the state court’s opinion that procedural default was a reason for the decision. Id.16 See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983) (no independent state ground exists where the “adequacy and independence of any possible state law ground is not clear from the face of the [state court’s] opinion”). Because the independence of any procedural ground for the state court’s decision is not apparent from the four corners of the opinions of the West Virginia courts which exhausted the petitioner’s state remedies in this case, application of the state contemporaneous objection rule is therefore not proper here. Id.17
*505II.
On the merits of this case, I would affirm Adkins as the correct interpretation of West Virginia law in 1981 regarding the requirement of a contemporaneous objection to a constitutional error for the reasons advanced by Judge Murnaghan. Due to the harmless error rule of Rose v. Clark, 478 U.S. -, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460, 474 (1986), the effect on the administration of justice from Adkins would not be great. Although this case is not one,18 there are many cases in which an error is harmless beyond a reasonable doubt. Reaffirming our holding in Adkins also is supported by the fact that in this case neither the circuit court nor the Supreme Court of Appeals in West Virginia applied its contemporaneous objection rule to bar the petitioner’s state habeas claim, thus raising an inference that no such rule applied at the time of Meadow’s trial. Ulster County Court, 442 U.S. at 152-54, 99 S.Ct. at 2222-23. Finally, reaffirming Ad-kin’s holding is also necessary because the West Virginia Supreme Court’s later interpretation of the contemporaneous objection rule manifestly applied a stricter interpretation of that rule for the purpose of frustrating federal law regarding the alibi instruction. We should not hasten to apply this new state rule retroactively.
We must not overlook that the basis for upholding the primacy of federal law against an uncertain interpretation of a state procedural bar is firmly established. Nonetheless, the majority chooses to apply the contemporaneous objection rule as the state has urged. The court bases its holding on its view that:
A decision in a federal habeas proceeding that a state does not require contemporaneous objection is, however, a significant determination. The effect is to substantially diminish the concept of finality in the operation of the state criminal justice system. It is, therefore, a conclusion that should not be reached lightly or without clear support in state law. Upon reconsideration, we now conclude that our analysis in Adkins did not satisfy that standard.
(Op. at 497) The majority’s “standard” — in effect a presumption that the state will apply a contemporaneous objection rule absent a clear statement by the state courts to the contrary — directly contradicts the Supreme Court’s decision in Ulster County Court v. Allen, supra. In that case, the Court reviewed New York law to determine whether the courts of that state apply *506a contemporaneous objection rule in cases of constitutional level error. After determining that “New York has no clear contemporaneous-objection policy that applies in this case,” the Court unanimously concluded that the petitioner’s constitutional argument was properly before the Court. 442 U.S. at 149-50, 168, 99 S.Ct. at 2220-21, 2230. The majority here concludes that a similar body of unclear state law existed at the time of our decision in Adkins, finding that Adkins was “not inherently unreasonable” and that the case law on the subject was ambiguous. (Op. at 497) But, despite the fact that West Virginia law, like New York law in Ulster County Court, had according to the majority’s view no clear contemporaneous-objection policy, the majority nevertheless concludes that it will apply a contemporaneous objection rule to bar the petitioner’s constitutional claim.
The primacy of federal law in cases such as this was also considered in Walker v. Engle, 703 F.2d at 966-67. There, the Sixth Circuit, relying on the Court’s decision in Ulster County Court, rejected application of a state contemporaneous objection rule where application of the rule “had no foundation in the record or state law.” The court’s holding was limited to the narrow situation before it:
We do not by this holding sanction blanket federal court review of state procedural rulings, rather the rule is to ensure that the state courts do not block federal vindication of federal constitutional rights by procedural rulings that have no basis in state law.
Id. A similar set of facts exists in this case because of the uneven application of West Virginia’s rule of discretion in considering constitutional errors for which no objection was made.
III.
The other aspect of the case which warrants comment is the majority’s failure, without assigning any reason therefor, to remand this case for consideration of whether the instruction in this case was plain error under the majority’s conception of West Virginia’s current formulation of its contemporaneous objection rule. Even if I assume the correctness of the majority’s interpretation of West Virginia’s contemporaneous objection rule, plain error of constitutional magnitude in the giving of a jury charge is subject to review if the giving of an instruction substantially impairs the truth-finding function of the trial. State v. Hutchinson, 342 S.E.2d 138, 142 (W.Va.1986). To my mind, the error in this case substantially impaired the truth-finding function of the trial as a matter of federal law, because of the tenuous basis for Meadows’ conviction of first-degree murder. Cf. Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705 (1967) (“Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean”). Thus, even accepting the majority’s holding, I would still remand the case to the district court to consider whether the alibi instruction, on the facts of this case, was plain error.
In summary, I dissent from the majority’s principal holding. I dissent from its failure to decide whether Meadows exhausted state remedies, and I dissent from the failure to remand the case to determine if there was plain error in the proceedings resulting in Meadows' conviction.
Judge PHILLIPS, Judge MURNAGHAN, and Judge SPROUSE authorize me to say that they join in this expression of my views.. As Judge Murnaghan’s dissent demonstrates, Meadows in his direct appeal did raise the question of the constitutionality of the charge, and it was considered by the West Virginia Supreme Court. Indeed the Circuit Court of Mercer County dismissed Meadows’ state habeas petition because it concluded that Meadows’ objection to the instruction had already been decided on direct appeal.
. See also Walker v. Engle, 703 F.2d 959, 966 (6 Cir. 1983); Bell v. Watkins, 692 F.2d 999 (5 Cir. 1982), cert. denied sub nom, Bell v. Thigpen, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983); Henson v. Wyrick, 634 F.2d 1080 (8 Cir.1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1981); Quigg v. Crist, 616 F.2d 1107 (9 Cir.1980), cert. denied, 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 150 (1980); Brinlee v. Crisp, 608 F.2d 839 (10 Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980).
. A few cases have not required a plain statement by the state courts of the procedural *505grounds for their decision, but these cases predate Michigan v. Long which requires such a plain statement in order for a ruling on state law to constitute adequate and independent state grounds. E.g. Gruttola v. Hammock, 639 F.2d 922, 929 (2 Cir.1981). But see Klein v. Harris, 667 F.2d 274, 285 (2 Cir.1981).
. In this case the evidence against Meadows was circumstantial, and his presence at the scene of the crime was the key issue. The evidence bears repetition:
The murder victim Ms. Hairston, with whom Meadows was romantically involved, was killed on the evening of November 28, 1979, but the time of her death was a fact of some dispute. State v. Meadows, 304 S.E.2d at 837. Witnesses identified an automobile which Meadows had borrowed as being parked at the scene of the murder on that evening. Id. Earlier that day, Meadows had a fight with the murder victim. Id. at 834. The evidence indicated that several hours after the murder, the murderer returned to the scene of the crime and used the victim’s car to transport her body to a secluded location where the body was later found. Id. at 837. The victim’s car was observed near her home the following morning.
On November 29, the victim was reported as missing. Meadows told a witness that day that he knew the whereabouts of the victim’s car; nonetheless, he participated in a search for the car the following day with the victim’s cousin without mentioning this fact. Id. at 835. On December 1, Meadows reported that he had found the car. Meadows had a set of keys to the car that may have been the original set that belonged to the victim. Id. at 835-36.
Meadows’ defense at trial was that he was at the home of Veronica Finney watching television when the murder occurred. Ms. Finney testified that Meadows had returned to her home at 7:20 or 8:20 p.m. and stayed under 10:30 on the night of the murder. Id. at 837. No witness testified that Meadows was at the scene of the crime, and the murder weapon was never found. On direct appeal, one judge from the Supreme Court of Appeals of West Virginia dissented from the conclusion that this circumstantial evidence was sufficient to prove that Meadows was at the scene of the crime. Id. at 841-42 (Harshbarger, J., dissenting.)