dissenting:
I fully agree with the dissenting opinions of Chief Judge Winter and Judge Murnaghan, and write separately to express some added concerns about the process used by the majority to reach decision here.
The dissenting opinions of Chief Judge Winter and Judge Murnaghan convincingly demonstrate that in its zeal to overrule our panel decision in Adkins, thereby giving retroactive effect to West Virginia’s belated announcement of an earlier contempora*507neous objection rule, the majority has had to disregard or violate several critical principles governing federal collateral review of state court convictions.
Specifically, by simply finessing the state’s exhaustion argument, the majority has avoided the necessity for dealing with the awkward fact that Meadows had indeed exhausted his state remedies and that in the course of doing so the state courts had rejected on the merits, not on independent state procedural grounds, his burden-shifting constitutional argument. Even if, as the majority now holds, the state then had a contemporaneous objection rule, it either forgot about it, waived it sub silentio, or treated the asserted error as one of constitutional dimensions so potentially egregious that it was reviewable under an exception which the majority apparently now concedes still exists. Whatever the reason, the state courts’ failures on Meadows’ direct appeal and post-conviction proceedings to reject the constitutional argument on an independent state procedural ground precludes, on settled principle, our invocation of procedural default as a way to avoid collateral review of his claim on the merits.
We cannot, on any principled basis, live with such a means of invoking state court procedural defaults against habeas petitioners.
Another settled principle that falls victim to the majority’s rush to undo Adkins is, as Judge Winter points out, that of Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), which directs that federal habeas courts should presume against rather than for the existence of state contemporaneous objection rules where the evidence of their existence (or consistent application) was at the critical time unclear in state law. That is exactly what Judge Bryan, writing for the unanimous panel in Adkins properly did. But the majority, yielding to the state’s arguments, has now purported to find a clarity not perceived by the Adkins panel— solely in later retrospective pronouncements by the state court unsupported by any clear contemporary evidence. As Judge Murnaghan has persuasively shown, it simply defies rational belief that if a state contemporaneous objection rule with respect to constitutional error had actually been in general operational effect at the time of Adkins’ and Meadows’ trials in 1977 and 1981, respectively, its existence would not have been formally invoked or at least noted in dictum in any published decisions of the highest state court until Kopa was decided in December 1983.
Ulster in effect holds that, as a matter of federal law, ambiguities or lack of clarity on the point in state statutory and decisional law are to be resolved in favor of federal habeas petitioners seeking to avoid the bar of procedural default. The narrow federal question dispositively decided in Adkins was therefore only that state law appeared at the time not absolutely to require contemporaneous objection to constitutional error. To overrule that narrow holding, supported by Ulster’s presumption, should require more than later state court decisions which, without citing any earlier decisions clearly demonstrating that such a rule then existed, simply opine that it did. Judge Bryan’s perfectly accurate reading of the then unclear state of state law could only be overruled by disregarding the important principle of Ulster.
I have recapitulated the critical points already made in the dissenting opinions of Judge Winter and Judge Murnaghan to emphasize the dangerous precedential path taken by the majority in reaching its decision. While the decision only directly affects a single habeas petitioner, the majority opinion’s treatment of procedural default principles has far wider implications for habeas corpus jurisprudence in this circuit (unless, the immediate problem felt by one state having been attended to, the disregard of principle in this case is now in turn to be disregarded).
Particularly disturbing is the fact that in yielding to the state’s importuning to relieve it of Adkins’ limited barrier to the invocation of procedural default, the majority has reached out much more broadly than may have been necessary to decide *508this appeal, seizing upon the unusual procedure of an initial en banc hearing in order to do so. Use of the en banc procedure as a specific means of first-instance reexamination of existing circuit precedent to which no intracircuit or intercircuit conflict has developed has its own dangerous implications, and I take this opportunity to record that all the dissenters in this case voted against convening an en banc court specifically to consider overruling Adkins.
Finally, it bears emphasis that, as Judge Winter has intimated in alluding to the harmless error possibility, and as the district court necessarily determined, the substantive claim here at issue is by no means an insubstantial one. There is a significant possibility that deliberately using this case as the vehicle for overruling Adkins, thereby almost incidentally allowing denial of Meadows’ petition on procedural default grounds, forgives a due process violation that prejudicially affected the fact finding function in this petitioner’s state trial.
If so, more than principle has fallen to this extraordinary effort by the court to relieve a state of a belatedly recognized problem in the administration of its criminal justice system.
I therefore dissent both to the procedure by which the majority has enabled itself to overrule Adkins and to the overruling.
Chief Judge WINTER, Judge MURNAGHAN, and Judge SPROUSE authorize me to say that they join in this expression of my views.