concurring in Parts III and IV, dissenting from Part II.
The majority finds that we are procedurally barred from considering the constitutionality of Dr. Loeffelholz’ testimony because Snethen failed to raise the issue in his original state post-conviction petition. Not only do I believe this issue was raised in state court, but I feel the admission of Dr. Loeffelholz’ testimony clearly violated Snethen’s privilege against self-incrimination, his right to due process and his right to a fair trial. Thus, I dissent from Part II of the majority’s opinion.
First, Snethen did not receive a fair trial. As Snethen’s defense at trial was insanity, he called a psychiatrist to testify to the issue of his mental condition at the time of the murder. In rebuttal, the state called Dr. Loeffelholz who testified that Snethen knew and understood the nature and quality of his actions on the date of the murder, September 1, 1974. Dr. Loeffelholz, however, did not confine his statements to his opinion regarding Snethen’s mental condition. He stated:
*461Eventually [Snethen, his step-brother, Luke, and the victim] ended up in a rather deserted area and the patient * * * had apparently the need to urinate. Words were exchanged according to Mr. Snethen which led to anger. Now, the exact content of the words I do not have and the patient claims that his alleged victim began to choke him * * *.
The patient stated he responded by grabbing the neck of his assailant. At that point the patient recalls a persistent and violent struggle. Eventually he says his assailant went limp and at that point the patient realized his victim was probably dead. Rather than make an effort to revive him, he apparently made a decision to make certain his assailant was dead and that resulted in considerable physical abuse on his assailant.
The patient claims he choked his victim with a belt and stabbed him in the heart and hit him over the head with a jack handle. The patient ended up burning the victim’s car in an effort to avoid apprehension.
Trial Transcript at 518. Not only did Dr. Loeffelholz relate inculpatory statements made to him during a court-ordered psychiatric examination, but he attributed to Snethen reasons for his actions. In no way did this testimony relate to Dr. Loeffelholz’ medical opinion as to Snethen’s sanity.
The admission of such inculpatory statements clearly violated constitutional law as it existed at the time of Snethen’s trial. Under Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), the fifth amendment privilege against self-incrimination prohibits the use of inculpatory statements made to a psychiatrist during a criminal trial unless the defendant has been appraised of his rights prior to the psychiatric exam and has knowingly waived those rights. While the Supreme Court rendered this opinion after Snethen was convicted, many circuit courts had dealt with this issue prior to 1981. See United States v. Reifsteck, 535 F.2d 1030, 1034 n. 1 (8th Cir.1976) (admission of inculpatory statements made to a psychiatrist during a court-ordered competency examination would raise serious self-incrimination questions); United States v. Williams, 456 F.2d 217, 218-19 (5th Cir.1972) (per curiam) (no inculpatory statements of a defendant made to a psychiatrist are admissible in evidence); United States v. Bohle, 445 F.2d 54, 66-67 (7th Cir.1971) (it is impermissible to introduce into evidence on the issue of guilt any statement made by the defendant during the course of a psychiatric examination); United States ex rel. Smith v. Yeager, 336 F.Supp. 1287, 1304-05 (D.N.J.1971), aff'd, 451 F.2d 164 (3d Cir.), cert. denied, 404 U.S. 859, 92 S.Ct. 112, 30 L.Ed.2d 101 (1971) (inculpatory statements made to psychiatrist are inadmissible as substantive evidence of guilt). Furthermore, in State v. Collins, 236 N.W.2d 376 (Iowa 1975), the Iowa Supreme Court addressed the issue of whether the use of testimony of a psychiatrist obtained without Miranda warnings violated a defendant’s fourteenth amendment right to a fair trial. Thus, under established precedent existing at the time of Snethen’s trial, the admission of Dr. Loeffelholz’ testimony was objectionable on constitutional grounds.
I believe that allowing a psychiatrist to relate to a jury statements made by a defendant in the course of an examination, even if admitted to rebut the defendant’s own testimony, violates his due process rights. In Collins v. Auger, 577 F.2d 1107, 1109-10 (8th Cir.1978), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979), this Court held that the admission of inculpatory statements made to a psychiatrist during an examination violated a defendant’s due process rights because a defendant should not be compelled to choose between his fifth amendment right not to incriminate himself and his due process right to investigate available defenses. As we stated:
[I]t is fundamentally unfair to use defendant’s incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution’s case to establish his guilt....
The defendant is entitled to raise his mental condition at the time of the offense as a defense. He is also entitled, *462under proper circumstances, to an examination to determine his competency to stand trial. Psychiatric examinations are essential to the proof of his mental condition. An indigent must seek a court-order authorizing the examination and the payment of its costs. If the giving of a Miranda warning satisfied requirements of the Fifth Amendment and the Fourteenth Amendment and made the defendant’s incriminating admissions admissible, the defendant would be placed in a situation where he must sacrifice one constitutional right to claim another.
If a defendant cooperated with the psychiatrist and made a full disclosure of his thinking processes and his background, including incriminating statements and if he failed to establish his lack of mental capacity, he would be faced with these admissions on trial. If a defendant exercised his right to remain silent and refused to cooperate with the psychiatrist the likelihood of a meaningful and reliable examination would be considerable decreased and his opportunity to urge a possible defense thwarted. A defendant should not be compelled to choose between exercising his Fifth Amendment right not to incriminate himself and his due process right to seek out available defenses.
Collins v. Auger, 577 F.2d at 1110 (citing Collins v. Auger, 428 F.Supp. 1079, 1082-83 (S.D.Iowa 1977)). To allow a psychiatrist to reiterate statements made to him is to force a defendant to choose between his privilege against self-incrimination and his right to assert an insanity defense at trial. As the Supreme Court has stated, a defendant should not be compelled to waive one right in order to assert another. Simmons v. United States, 390 U.S. 377, 393-94, 88 S.Ct. 967, 975-76, 19 L.Ed.2d 1247 (1968).
As Snethen’s attorney failed to object to this evidence, Snethen lost his right to raise the issue on direct appeal. Iowa does not recognize a “plain error” rule. State v. Tryon, 431 N.W.2d 11, 16 (Iowa App.1988). Even alleged errors of constitutional magnitude must be preserved by a timely objection at trial. Id. Moreover, under state law, issues not raised on direct appeal may not be raised in a post-conviction petition unless “sufficient reason” is shown for the procedural default. Polly v. State, 355 N.W.2d 849, 855 (Iowa 1984). Iowa has adopted the cause and prejudice standard of Wainwright v. Sykes to determine whether it will hear an issue for the first time in a post-conviction petition. Id.
Snethen thus had to show “sufficient reason” for failing to object to Dr. Loeffel-holz’ testimony at trial. He raised the only claim available to him in his state post-conviction petition — ineffective assistance of counsel. In his pro se petition, Snethen stated that “[the] defendant did not receive a fair trial on the charge of murder, case no. 3869 in Polk County Courts, in the City of Des Moines.” The state district court interpreted this complaint to include the assertion that his trial attorney, Mike Wilson, had provided ineffective assistance of counsel for failing to object to the psychiatrist’s testimony.
On appeal, the Iowa Supreme Court stated that it would not consider this claim on its merits because Snethen had failed to specify the constitutional basis for the claim in his petition and therefore had not given the state adequate notice. Snethen v. State, 308 N.W.2d 11, 15-16 (Iowa 1981). Yet, it went on to find that Snethen’s attorney was not ineffective because the legal basis for the constitutional objection articulated by this Court in Collins v. Auger was unavailable to Snethen’s attorney at the time of his trial. Id. at 16. It also held that no prejudice had resulted from the admission of Dr. Loeffelholz’ testimony as sufficient evidence existed to implicate Snethen in the homicide without the doctor’s testimony. Id.
I do not believe that this Court is procedurally barred from addressing Snethen’s due process claim in light of the Iowa Supreme Court’s decision to address the ineffective assistance of counsel claim on the merits. To find otherwise is to place Snethen in an inescapable “Catch-22” situation. According to the Iowa Supreme Court, Snethen’s attorney had no basis for an objection based on the fourteenth amendment at trial because the due pro*463cess argument did not exist at the time of Snethen’s trial. Yet, when Snethen filed a second post-conviction petition in state court, as instructed by this Court in Snethen v. Nix, 736 F.2d 1241, 1246 (8th Cir.1984), the Iowa Court of Appeals held that Snethen had not shown cause for failing to raise the sixth and fourteenth amendment issues on direct appeal. See Snethen v. State, 404 N.W.2d 593 (Iowa App.1986) (Table) (unpublished opinion). It does not explain, however, how Snethen could have done this in light of the Iowa Supreme Court’s holding that the issue was novel at that time and in light of the state rule that constitutional errors not objected to at trial cannot be raised on direct appeal.
This Court now holds that a federal court cannot review, the constitutionality of Dr. Loeffelholz’ testimony because Snethen failed to raise the issue in his initial state post-conviction petition. This holding only confuses an already confusing procedural posture and sheds no light on how, under state and federal procedural limitations, Snethen should have proceeded. The mishmash of state and federal procedural limitations has made a review of the merits of Snethen’s claim next to impossible.
The majority intimates that even if it addressed the merits of Snethen’s claims, it would agree with the Iowa Supreme Court that the admission of Dr. Loeffelholz’ testimony was harmless beyond a reasonable doubt. See supra, note 5. First, the Supreme Court of Iowa stated that, even without the testimony of Dr. Loeffelholz, sufficient evidence existed to “implicate” Snethen in the homicide. 308 N.W.2d at 16. As the majority notes, the standard for determining the effect of unconstitutional errors is much higher. We must determine whether the illegal admission of highly prejudicial evidence was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). This places on the beneficiary of the constitutional error the burden of proving beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Id.
I cannot say that the admission of Dr. Loeffelholz’ testimony was not harmless beyond a reasonable doubt The only other evidence indicating Snethen’s guilt was the testimony of Snethen’s step-brother Luke, who was originally arrested for the murder, and Snethen’s mother, who was obviously prepared to sacrifice one son for another. Snethen’s admission to the police that he was involved in the murder, although voluntary, did not amount to a full confession to the murder. The closest Snethen came to an actual confession was the statement “I will say I am a guilty suspect in the case, but I can’t admit to any murder or anything.”
While the equivocal “confession” was very general in' nature, the account presented by Dr. Loeffelholz was very graphic and was consistent with the physical evidence presented at trial. If the jury had not been privy to the conversation between Dr. Loeffelholz and Snethen, I cannot say, beyond a reasonable doubt, that Snethen would have been convicted of murder in the first degree.
Because the admission of inculpatory statements made to a psychiatrist violated Snethen’s due process right to a fair trial, and the issue was adequately raised in state court, I feel the proper recourse is to grant the writ of habeas corpus and to order the state to release Snethen from prison unless it provides him with a new trial within 90 days.
This case exemplifies more than any other the tortured route á prisoner must travel to obtain federal review of constitutional violations in state criminal proceedings. State and federal courts have, over the last few years, imposed more and more procedural limitations on post-conviction relief. These steps have been taken on the theory that prisoners can be discouraged from filing complaints. The statistics, however, do not support this assumption. For example, in Iowa, the number of prisoner petitions filed in federal district court has risen from 22 in 1968 to 398 in 1988. In 1966, this Court dealt with 53 prisoner cases. Last year, 815 prisoner cases, 38 percent of all appeáls, were filed with the Circuit Court. *464Prisoners and their representatives apparently are as innovative as the courts in attempting to find ways to avoid or to comply with artificial procedural barriers. As a result, state and federal courts at every level spend much time determining whether the prisoners have followed the proper road maps, rather than quickly reaching the merits of the matter and ending the case.
This case has been pending for fourteen years and no court, state or federal, has determined whether Snethen received a fair trial. In my view, the reliance on procedural rules to deprive Snethen and other prisoners of a constitutionally guaranteed fair criminal trial constitutes a miscarriage of justice. It certainly serves no other judicial purpose. For these reasons, I must dissent from Part II of the majority’s opinion.