concurring:
Reluctantly,' I concur.
When the case was here before, I dissented. Neuschafer v. McKay, 807 F.2d 839, 842 (9th Cir.1987). That decision has become the law of the case.
I am sure that the majority did not foresee that counsel for the State of Nevada would seek to invoke “Abuse of the Writ.”
On remand, the district court should be certain that the prisoner has exhausted all of his points before the courts of Nevada and the Federal district court, except possibly the one that his present counsel has incompetently represented him which has not yet emerged. Surely he can’t use that one more than four or five successive times.
In preparing for our first round, Neus-chafer, 807 F.2d 839, I was worried that counsel seemingly did not bear down on the “buggery” that Neuschafer asserted was what provoked his deed. But that was before we found in the record his disgusting criminal record in the sex field when he was not in custody. When we found that, then I knew why his trial counsel chose to emphasize the weak Miranda point. The original trial record tells me that he was competently represented at his trial and that his trial counsel made a wise choice.
I repeat what Mr. Justice Douglas said in his dissent in Chessman v. Teets, 354 U.S. 156, 166-67, 77 S.Ct. 1127, 1132-33,1 L.Ed.2d 1253 (1957):
I agree that in a case like this it matters not whether the petitioner is guilty or innocent, whether his complaint is timely or tardy. We should respect a man’s constitutional right whenever or however it is presented to us. My difficulty here is not with any principle the Court announces. My dissent is based on the conviction that, in substance, the requirements of due process have been fully satisfied, that to require more is to exalt a technicality.