dissenting.
I respectfully dissent. Buckley was arrested at age nineteen for the midnight burglary of a Best Merchandise store and the theft of jewelry. Buckley testified at trial that he did not enter the store and take the jewelry, that he had merely acted as a fence to sell the stolen jewelry, that he was at a nightclub with friends on the night of the burglary and theft, and that he had been physically forced to give a taped confession while in police custody. Buckley, who had no previous criminal record, was convicted on both charges and sentenced by the jury to twenty years imprisonment for each crime. The trial judge ordered the sentences to run consecutively.
According to Buckley, he and his attorney discussed the possibility of appealing his conviction after the trial, and his attorney stated that he refused to file either a motion for a new trial or a notice of appeal because the trial judge advised against it.1 On June 24, 1983, Buckley escaped from prison and remained at large during his appeal period. In Buckley’s absence, his attorney took no action with respect to this case. On October 30, 1984, Buckley was committed to the Arkansas Department of Corrections.
DISCUSSION
On appeal, Buckley alleges that he has a right to an evidentiary hearing on the factual disputes in this record. The district court held that it was procedurally barred from considering Buckley’s habeas petition because he failed fairly to present in state court any of the issues raised in his habeas petition. The majority agrees. Because of the reasons stated below, I must dissent from this finding.
I. PROCEDURAL DEFAULT
Buckley raises essentially three claims: (1) ineffective assistance of counsel for refusing to appeal the conviction after Buckley expressed a wish to do so,2 for failing *722to dismiss a juror for cause, and for failing to seek a continuance of his trial to locate alibi witnesses; (2) prosecutorial misconduct; and (3) the use of a coerced confession at trial.
Ineffective Assistance of Counsel
The majority finds that Buckley failed to raise the claim of ineffective assistance of counsel in state court. The majority, however, places an unnecessarily narrow construction on Buckley’s Rule 37 petition. Buckley clearly included a version of this claim in his first petition. Buckley alleged the following:
Plaintiff was denied effective assistance of counsel because appointed counsel shall continue to represent a defendant until relieved by this Court, The Supreme Court, or Where a Trial is had, upon the failing [sic] of a written statement that the defendant, if convicted, does not wish to appeal as herein after [sic] provided. At know [sic] time did Plaintiff release counsel or did Plaintiff understand any form of Law or sentence concerning what would happen if the Court found him in Double Jeopardy. Where as [sic] a more effective assistance of Legal counsel who had better under standing [sic] of the Law would have advised Plaintiff following a Trail [sic] conviction appointed counsel shall advise defendant of his Right to Appeal and of his right to counsel on Appeal if requested there after [sic] to do so. Counsel shall file a proper Motion for New Trial, and if the Motion is over ruled [sic] perfect The Appeal. His representation shall continue until he is relieved by this Court [or] the Supreme Court. At know [sic] time was Plaintiff notified that his counsel has been relieved even though Plaintiff has requested to progress on his case....
Designated Clerk’s Record at 101.
While Buckley’s word choice and sentence structure are less than erudite, it is not difficult to understand Buckley’s claim. First, he alleged that his attorney recused himself without court permission. Second, he alleged that his attorney failed to advise him that his conviction might violate the double jeopardy clause of the United States Constitution. Third, he alleged that his attorney failed to advise him of his right to appeal and his right to counsel on appeal. Finally, and of significance to this appeal, he alleged that his attorney failed to move for a new trial and failed to perfect his direct appeal even though Buckley asked him to do so. These claims subsequently have appeared in Buckley’s motion for a writ of error coram nobis and in all three versions of his federal habeas petition.
The majority believes that although Buckley may have alleged ineffectiveness of counsel in state court, he did not specify the factual basis of this claim and thus failed to raise the issue in accordance with state procedural rules. Indeed, the state court found that Buckley’s allegations were conclusory; and without holding an evidentiary hearing, it denied the claim. Buckley’s allegations are not conclusory, particularly his allegation that his attorney failed to move for a new trial or to perfect his direct appeal after Buckley asked him to do so. For the purpose of this habeas review, Buckley adequately stated this ineffective-assistance-of-counsel claim in state court.
The majority finds that even if Buckley’s attorney refused to file a notice of appeal as directed by Buckley, the issue cannot be challenged here because Buckley waived his right to a direct appeal by escaping. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney’s conduct fell below an objective standard of reasonableness and that the defendant was prejudiced by that act. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Clear precedent shows *723that a defendant has been denied effective assistance of counsel when the malfeasance or nonfeasance of his counsel effectively deprived the defendant of the right to appeal. Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir.1988). The issue here is whether Buckley’s own actions have taken away from him any right to complain.
The majority argues that under Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), Buckley lost his right to a direct appeal when he escaped. In Molinaro, a man convicted of performing an abortion failed to surrender himself to authorities. When his appeal reached the United States Supreme Court, the Court refused to hear the case because Molinaro remained a fugitive. It stated:
No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed on him pursuant to the conviction. * * * [Such an escape] disentitles the defendant to call upon the resources of the Court for determination of his claim.
Id. at 366, 90 S.Ct. at 499.
Furthermore, this Court has held that it will not find ineffective assistance of counsel in a state habeas corpus case where counsel failed to perfect an appeal after his client escaped. Wayne v. Wyrick, 646 F.2d 1268, 1270 (8th Cir.1981). Based on the disentitlement doctrine of Molinaro and state case law, this Court found that the defendant, who escaped after filing a notice of appeal in state court, had not been prejudiced by his counsel’s failure to perfect his direct appeal.
Two very important distinctions, however, exist here, despite the majority’s view that Buckley’s motivation for escape is irrelevant. First, Buckley’s appeal was not pending when he escaped; had Buckley’s attorney filed a notice of appeal before Buckley escaped, his failure to perfect the appeal would not have been unreasonable. Under the disentitlement theory, Buckley himself would have caused the waiver of his right to a direct appeal. Moreover, had Buckley escaped before he informed his attorney of his desire to appeal his conviction, he would have no grounds for a claim of ineffective assistance of counsel. In this case, however, Buckley escaped only after he asked his attorney to file a notice of appeal and his attorney refused to do so.
Second, Buckley’s decision to escape may have been influenced by the belief that an appeal would have been futile. According to Buckley, his attorney told him that he could not appeal. In neither Molinaro nor Wayne did the defendant allege that he escaped only after receiving incorrect legal advice from his attorney.
Additionally, it appears that the decision to dismiss an appeal for reasons of escape remains a discretionary one with each court. See Brinlee v. United States, 483 F.2d 925, 927 (8th Cir.1973) (court gave defendant thirty days to turn himself in before it dismissed appeal); United States v. Baccollo, 725 F.2d 170, 172 (2d Cir.1983) (court declined to dismiss appeal because it preferred to address issues on the merits). In light of the facts of this case, a penalty less drastic than dismissal should be applied.
Although the majority disputes Buckley’s version of the facts, especially because the trial judge informed Buckley of his right to appeal, no court has addressed these factual allegations. Under Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir.1988), a district court must hold an evi-dentiary hearing when a dispute exists as to the relevant facts and the factual questions cannot be resolved on the basis of the record. Id. at 1137. Thus, this claim should be remanded to the district court for an evidentiary hearing.
Buckley also asserts that his attorney was ineffective because he failed to challenge a juror for cause and failed to seek a continuance after Buckley’s alibi witnesses did not appear to testify. These claims clearly were not raised in Buckley’s Rule 37 petition. The state trial court refused to reach these claims when Buckley raised them in his motion for a writ of error coram nobis because they had not been raised in Buckley’s first post-conviction pe*724tition. As the state court was procedurally barred from addressing these issues on the merits, so also is the federal court.
II. PROBABILITY OF ACTUAL INNOCENCE
Our inquiry, however, should not end here. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Supreme Court stated that in appropriate cases, the principles of comity and finality that form the basis for the cause-and-prejudice standard must “yield to the imperative of correcting a fundamentally unjust incarceration.” Id. at 495, 106 S.Ct. at 2649. “Where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Id.; see also Harper v. Nix, 867 F.2d 455, 457 (8th Cir.1989) (quoting Carrier).
In Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), decided the same day as Murray v. Carrier, the Supreme Court refused to consider whether the testimony of a psychiatrist during the sentencing phase of a capital murder case violated a defendant’s right against self-incrimination because the issue had not been raised in the state court system. The Court went beyond the Wainwright test and applied the probability-of-actual-innocence standard articulated in Murray v. Carrier. Smith, 477 U.S. at 538, 106 S.Ct. at 2668. The Court found that the refusal to consider the defaulted claim on federal habeas did not carry with it “the risk of a manifest miscarriage of justice” because the admitted testimony was not false or misleading, it did not foreclose any of the defendant’s defenses at trial, and it did not pervert the jury’s deliberations concerning the ultimate issue in the case. Id.
In the present case, Buckley continues to protest his innocence. The record indicates that the only direct evidence put forth at trial to support his conviction was his confession. No doubt exists that the confession had a significant effect on the jury’s deliberations as to Buckley’s guilt or innocence. If Buckley confessed as a result of physical or verbal threats and the confession is untrue, ignoring Buckley’s claim for procedural reasons would result in an innocent man spending forty years of his life in an Arkansas prison.
Furthermore, Buckley took the stand at trial and alleged that he spent the evening of the burglary with his girlfriend and others at a local nightclub. In its closing argument, the prosecution made much of these friends’ failure to appear and testify for Buckley. Yet, according to Buckley, the witnesses did not appear at trial because they had been threatened with arrest by local police. Buckley has provided this court with sworn statements from the witnesses corroborating his allegation of misconduct. See Affidavits, Designated Clerk’s Record at 154, 157, 158, 159. The absence of potential alibi witnesses not only eliminated one of Buckley’s defenses at trial, but it gave the prosecution the opportunity to cast doubt on the veracity of his entire testimony.
In Murray v. Carrier, the Supreme Court noted that effective assistance of counsel at trial provides “an additional safeguard against miscarriage of justice in criminal trials.” 477 U.S. at 496, 106 S.Ct. at 2649. Yet, we have a factual dispute as to whether Buckley received this anticipated protection. Thus, even though Buckley did not prove cause for failing to raise certain issues in state court, the facts of this case fit into the narrow exception contemplated by the Supreme Court in Smith v. Murray. The district court thus should have addressed Buckley’s habeas claims on the merits.
Buckley has sought post-conviction relief in both state and federal court. This case exemplifies the labyrinth that prisoners must negotiate when state courts do not address their petitions on their merits and bar certain claims because of procedural default. Few prisoners are equipped to navigate this procedural maze. Although current law forces us to recognize procedural default, it also causes us to deny relief to petitioners who may deserve it. State courts’ refusal to reach the merits of *725defaulted claims causes time-consuming and court-clogging appeals. The courts and the petitioners all would benefit if state courts would reach the merits of these claims. Much time could have been saved had this case been disposed of on the merits at an earlier stage.
CONCLUSION
I would reverse the decision of the district court and remand this ease for an evidentiary hearing on Buckley’s claim of ineffective assistance of counsel. Buckley may have been denied a direct appeal because of such ineffective assistance. Even if he was not, he retains the right to an evidentiary hearing on his claims of misconduct by the prosecution and the police because these issues bear directly on his guilt or innocence.
. The trial court did advise Buckley of his right to appeal. He stated:
Mr. Buckley, you are advised that you have a right of appeal from these judgments of conviction to the Arkansas Supreme Court. Should you elect after conferring with counsel to exercise your option of appeal, you must give written statutory notice within thirty days of this date. You then have ninety days in which to obtain and lodge the transcript and record with the Arkansas Supreme Court. You, having counsel of your own choice, the expense of that transcript will be borne by you.
Trial Transcript, Vol. 2, at 296.
Buckley alleges, however, that his attorney refused to appeal his convictions. Because no court has determined the veracity of this allegation, we must accept, for the purpose of this appeal, the facts as Buckley has stated them.
Although the trial court advised Buckley of his right to appeal his conviction to the Arkansas Supreme Court, the court failed to inform Buckley that counsel for the appeal would be provided for him if he was unable to retain counsel himself. If Buckley’s allegation that his trial counsel refused to appeal his convictions is true, Buckley may reasonably have concluded that an appeal was impossible.
. The State of Arkansas argues that Buckley abandoned the failure-of-counsel-to-appeal claim by omitting it from the second amended habeas petition in federal court. We disagree. First, Buckley's counsel clearly alleged in this pleading that "Petitioner’s counsel, Ralph Wilson of Osceola, failed to perfect an appeal of the trial court verdict and withdrew from Buckley’s *722case despite Buckley's wishes to appeal.” Designated Clerk's Record at 147. Second, even had Buckley left this allegation out of his second amended complaint, he did not necessarily abandon this claim. See Gulliver v. Dalsheim, 687 F.2d 655, 658 (2d Cir.1982) (without written or oral statement indicating that a habeas petitioner amended his complaint to delete certain claims, court refused to find that abandonment had occurred).