dissenting.
I respectfully dissent. The same counsel who represented Scroggins at trial also represented him on appeal from his state court conviction. I believe Scroggins has made a sufficient showing of ineffective assistance of counsel under Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986), to establish both cause and prejudice. This would render the finding of procedural default in error and require a hearing on the merits on the ineffective assistance of counsel claim in the following areas: (1) Failure to argue excessive intoxication to demonstrate lack of capacity to consent to the search of the truck; (2) failure to adequately examine the witnesses on the issue of identification; and (3) failure during both the guilt and sentencing portions of the trial to prevent the jury from learning of Scroggins’ earlier convictions.
I also believe that the evidence concerning Billy Long, who was with Scroggins on the day of the robbery and allegedly told his brother that he, not Scroggins, had robbed the store, would demonstrate a claim of colorable innocence, and thus injustice.
I would remand for hearing on the merits.