dissenting.
Last term in Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993), the Supreme Court reiterated the principle that state court convictions should be challenged primarily through direct review. The Court emphasized, as it has before, that the Great Writ of habeas corpus is to be reserved for extraordinary situations:
The principle that collateral review is different from direct review resounds throughout our habeas jurisprudence. Direct review is the principal avenue for challenging a conviction. ‘When the process of direct review ... comes to an end, a presumption of finality and legality attaches to the conviction and sentence. The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.”
In keeping with this distinction, the writ of habeas corpus has historically been regarded as an extraordinary remedy, “a bulwark against convictions that violate ‘fundamental fairness.’ ” “Those few who are ultimately successful [in obtaining ha-beas relief] are persons whom society has grievously wronged and for whom belated liberation is little enough compensation.”
Id. at-, 113 S.Ct. at 1719 (citations omitted).
Significantly, the Court also noted that “it hardly bears repeating that ‘an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment,’” id. at -, 113 S.Ct. at 1720 (internal citations omitted), and that “ ‘[l]iberal allowance of the writ ... degrades the prominence of the trial itself and at the same time encourages habeas petitioners to relitigate their claims on collateral review,” id. at -, 113 S.Ct. at 1720-21 (citation omitted).
In this case, the majority “ha[s] no difficulty in concluding that the evidence before the [state] court would have .supported a factual finding that strategic decisions were made.” Maj. op. at 761. Nonetheless, the majority concludes that federal habeas relief is not barred under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), because counsel’s decision was made in a “legal landscape in which they could go forward in hope of an acquittal by the jury and raise the due process argument in a Rule 35 proceeding.” Maj. op. at 764. I respectfully dissent because I believe that the extraordinary remedy of habeas corpus is not meant to grant relief to someone who deliberately and strategically declined the opportunity to assert his rights during his state trial and direct appeal.
I.
Although the majority “assume[s] arguen-do” that Fay “retains independent vitality” subsequent to the Supreme Court’s decisions in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), and Coleman v. Thompson, 501 U.S.- 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), it does so only grudgingly, stating that there is “substantial support” for the view that Sykes’ “independent and adequate state law ground” has “subsumed the ‘deliberate bypass’ rule of Fay.” Maj. op. at 760. *768Because the viability of Fay underlies my approach to this case, I discuss it notwithstanding the majority's concession..
One of the two principal prongs of the Fay holding was that a state procedural default did not constitute a bar to federal court review under the federal habeas statutes comparable to the bar of direct Supreme Court review effected by an adequate and independent state law ground. The other prong gave discretion to the federal courts to deny relief to a petitioner who had deliberately bypassed the orderly procedure of the state courts and, in so doing, forfeited available state court remedies. See Fay, 372 U.S. at 428-35, 83 S.Ct. at 843-7.
Fourteen years later, after gradual erosion of the first prong of the Fay rule, the Supreme Court in Sykes reinvigorated the independent and adequate state ground basis of precluding of federal habeas review because of procedural defaults. Instead of Fay’s “deliberate bypass” rule, the Court applied the “cause and prejudice” test to procedural defaults. The suggestion here by the majority that a procedural default may be tested only under the “cause and prejudice” test disregards the context in which the Sykes rule replaced that of Fay.
It is no surprise that the Court itself has characterized the Fay “deliberate bypass” test as a “lower standard” than that it adopted under the “cause and prejudice” test. See Keeney v. Tamayo-Reyes, — U.S. -, -, 112 S.Ct. 1715, 1720, 118 L.Ed.2d 318 (1992), see also Sykes, 433 U.S. at 87, 97 S.Ct. at 2507 (the “cause” and “prejudice” standard is “narrower” than the Fay test). Fay was supplanted because the Court was uncomfortable with “an all-inclusive rule rendering state contemporaneous objection rules ineffective to bar review of underlying federal claims in federal habeas proceedings — absent a ‘knowing waiver’ or ‘deliberate bypass’ of the right to so object.” Id. at 85, 97 S.Ct. at 2505. In light of that background, the principles and purposes behind habeas corpus, the policy against relit-igation of matters that have been concluded, and the Court’s recent jurisprudence, it is not likely that the Supreme Court would disapprove the continued vitality of the Fay “deliberate bypass” test in a situation like the present one where this court held the “cause and prejudice” test unavailable.1
II.
One of the bases for the current habeas jurisprudence is the view expressed in Sykes, over a strong dissent by Justices Brennan and Marshall, that the Fay test was not sufficiently respectful of the states’ interests in their procedural default rules. The Court explained:
We think that the rule of Fay v. Noia, broadly stated, may encourage “sandbagging” on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off.
433 U.S. at 89, 97 S.Ct. at 2508.
The Court again stressed the significance of state procedural rules in Keeney, — U.S. at-, 112 S.Ct. at 1720, where it held that the “cause and prejudice” test was applicable to a petitioner’s negligent failure to develop material facts in the state court proceeding. The Court noted that “[i]n Wainwright v. Sykes, we rejected the application of Fay’s standard of ‘knowing waiver’ or ‘deliberate bypass’ to excuse a petitioner’s failure to comply with a state contemporaneous-objection rule, stating that the state rule deserved *769more respect than the Fay standard accorded it.” Id. at-, 113 S.Ct. at 1718 (citation omitted). The Court referred to its decision the year before in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), where “we described Fay as based on a conception of federal/state relations that undervalued the importance of state procedural rules.” Keeney, - U.S. at- -, 112 S.Ct. at 1718-19. In Coleman, the Court had stated:
The cause and prejudice standard in federal habeas evinces far greater respect for state procedural rules than does the deliberate bypass standard of Fay. These incompatible rules are based on very different conceptions of comity and of the importance of finality in state criminal litigation.
501 U.S. at-, 111 S.Ct. at 2563.
A fortiori, habeas impinges at the very heart of federalism principles. The majority opinion’s view that the federalism concerns that underlie Sykes’ and Fay’s default rules do not exist when there is no “independent and adequate” state procedural bar is belied by the Court’s holding in McClesky v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). Even though there had been no state procedural default because the case arose in the context of the abuse of writ doctrine (which can be viewed as a default in a prior federal habeas petition), the Court recognized that federalism concerns are still implicated. It commented that “the doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State’s interest in' the finality of its criminal judgments.” Id.
Admittedly in this ease there may not have been a concerted effort to bypass all state review in favor of federal court review, but federalism, although an important rationale for habeas jurisprudence, is not the only consideration. The emphasis in McClesky on the significance of finality of criminal convictions (“Without finality, the criminal law is deprived of much of its deterrent effect.” Id. at 491, 111 S.Ct. at 1468 (quotations omitted)) has been a frequent theme in habeas cases. See e.g., Keeney, — U.S. at-, 112 S.Ct. at 1718 (“The writ strikes at finality, of a state criminal conviction, a matter of particular importance in a federal system.”).
Moreover, the procedural default rules, including as well the Fay “deliberate bypass” test, are based, in part, on equitable principles: Thus, the holding of Fay “that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies” is based on the equitable principle that “a suitor’s conduct ... may disentitle him to the relief he seeks.” 372 U.S. at 438, 83 S.Ct. at 849.
III.
The majority assumes, as indeed it must in light of the state court’s evidentiary findings, that, in the words of the Delaware Supreme Court, “a strategic choice was made” by Reynolds’ counsel in failing to object. App. at 10. Nonetheless, the majority concludes that despite these findings Reynolds’ failure to object did not amount to a “deliberate bypass.” Such a constrictive approach to “deliberate bypass” is inconsistent with the Fay Court’s own explanation of what it encompasses:
The classic definition of waiver enunciated in Johnston v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 — “an intentional relinquishment or abandonment of a known right or privilege” — furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understanding^ and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits.
*770Fay, 372 U.S. at 439, 83 S.Ct. at 849.2
No Supreme Court decision supports the majority’s view that Reynolds’ “strategic choices” did not constitute a “deliberate bypass” merely because Reynolds could have believed that he could bring his claim in a Rule 35 proceeding and therefore was not attempting to bypass the state courts.3 Indeed, the only court of appeals to have considered the issue decided that a strategic decision not to raise an objection constituted a deliberate bypass. In Brownstein v. Director, Illinois Dep’t of Corrections, 760 F.2d 836 (7th Cir.), cert. denied, 474 U.S. 858, 106 S.Ct. 166, 88 L.Ed.2d 138 (1985), the state court failed to admonish defendant Brown-stein of his right to a jury trial. Brownstein knew that he was entitled to a jury trial, and could have asked for it but “deliberately chose to have two chances at acquittal,” id. at 843-14, because his counsel believed he could “use the judge’s omission to secure a new trial should he lose the first time around.” Id. at 839. Despite the fact that there was no state court finding of procedural default to which the Sykes “cause and prejudice” rule would apply (because the state court had erroneously found there had been notice and waiver of a jury trial), the federal courts, both district and court of appeals, found a deliberate bypass under Fay.
The facts are strikingly similar to those here. In Reynolds I the Sykes “cause and prejudice” test was also found inapplicable. The majority’s scenario for the strategy of counsel is that they, as did counsel in Brovm-stein, sought two chances, a jury acquittal or subsequent new trial. It follows that the reasoning of the Seventh Circuit is of particular relevance. In holding that “[Fay v.] Noia enables us to look beyond the state procedural rules themselves,” id. at 842, the Brownstein court looked to equitable considerations under which “ ‘a suitor’s conduct in relation to the matter at hand may disentitle him to the relief he seeks.’ ” Id. (quoting Fay, 372 U.S. at 438, 83 S.Ct. at 848). The Court thus held that “[i]n our judgment, [Fay v.] Noia goes beyond procedural defaults and allows federal judges to deny ha-beas relief whenever the petitioner’s strategic behavior clearly requires it.” Id. It continued, “the deliberate by-pass standard of [Fay v.] Noia, relying on general equitable principles, does not require the by-pass of a requirement; the passing by of a mere opportunity may be enough, and in this case is enough, to call that standard into play.” Id. (emphasis added). The court thus concluded, “Although [Brownstein] did everything state procedural rules required, [he] did not do everything he could have; and the reason he did not was a strategic one: he wanted the chance of another trial, if he lost the first time.... We hold that he is not entitled to federal relief.” Id. at 844.
The majority, by disapproving the result reached by the Seventh Circuit, thus creates a circuit split. Although it purports to find support in Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975) and County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), neither of those eases is applicable. In both cases, unlike here, the state appellate courts had heard the merits of the petitioners’ claims notwithstanding the claimed procedural defaults. Both Supreme Court opin*771ions gave that as a significant reason why consideration on the merits by a federal court was not barred. See Lefkowitz, 420 U.S. at 292 n. 9, 95 S.Ct. at 891 n. 9 (“But the Court also held that if the state courts have entertained the federal constitutional claims on the merits in a subsequent proceeding, notwithstanding the deliberate bypass, the federal courts have no discretion to deny the applicant habeas relief to which he is otherwise entitled.”) (citations omitted).
The majority relies on the statement in Allen that “if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” Allen, 442 U.S. at 154, 99 S.Ct. at 2223. One difficulty with the majority’s position is that the state courts did indicate that they viewed Reynolds’ federal constitutional claim as barred by some state procedural rule and refused to hear his claim. The fact that this court did not agree with the state courts’ interpretation of their own procedural rule, see dissent note 1 supra, and held that it was not “adequate and independent,” Reynolds I, 843 F.2d at 719, does not mean that we can pretend that the state courts heard this claim on the merits when they did not.
It is important to note that notwithstanding the majority’s skepticism that trial counsel “deliberately bypassed” the claim relating to the opening statement in the state trial court, the record is clear that appellate counsel made a deliberate decision not to raise the issue on direct appeal for tactical purposes. He testified:
Q. Do you know the reason that was not raised on appeal?
A. The reason it was not raised on appeal was because, as far as I am concerned, the better grounds for appeal were the interpretation of the stipulation regarding the truth serum and also the very good ground of the newly-discovered evidence when we had the investigating officer saying he believed the wrong man had been convicted.
App. at 77. Thus the case cannot be governed by Lefkowitz and Allen, where counsel raised the issue in the state appeals courts. Nor is it like the decision of Noia not to appeal, also cited by the majority as governing here. As Justice Brennan noted, had Noia appealed he would have run a substantial risk of electrocution. Thus, he stated, “under the circumstances [Noia’s choice] cannot realistically be deemed a merely tactical or strategic litigation step.” Fay, 372 U.S. at 440, 83 S.Ct. at 849. On the other hand, Justice Brennan continued, “[t]his is not to say that in every case where a heavier penalty, even the death penalty, is a risk incurred by taking an appeal or otherwise foregoing a procedural right, waiver as we have defined it cannot be found. Each case must stand on its facts.” Id.
Essentially, the “deliberate bypass” by Reynolds’ counsel of the opportunity to object when it might have had a curative effect gave the district court'the discretion to decline to exercise its habeas jurisdiction, and its decision to do so was reasonable. The Supreme Court has repeatedly warned against using habeas to “give litigants incentives to withhold claims for manipulative purposes and [] establish disincentives to present claims when evidence is fresh.” McClesky, 499 U.S. at 491-92, 111 S.Ct. at 1469; see also Brecht v. Abrahamson, — U.S. -,-, 113 S.Ct. 1710, 1720-21, 123 L.Ed.2d 353 (“‘liberal allowance of the writ ... ’ encourages habeas petitioners to relitigate their claims on collateral review”); Keeney, — U.S. at-, 112 S.Ct. at 1718 (Habeas review “may give litigants incentives to withhold claims for manipulative purposes.”).
There are powerful reasons to discourage a defendant from bypassing opportunities to object during his trial. As the Supreme Court stated in Estelle v. Williams, 425 U.S. 501, 508 n. 3, 96 S.Ct. 1691, 1695 n. 3, 48 L.Ed.2d 126 (1976), a case cited by the majority, “if the defendant has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation.”
One of the goals of procedural default rules is to encourage full factual development in state court. See Coleman, 501 U.S. at -, 111 S.Ct. at 2563; see also Brecht; — *772U.S. at-, 113 S.Ct. at 1721 (“state courts often occupy a superior vantage point from which to evaluate the effect of trial error”). This consideration was referred to expressly in Sykes where the Court noted the benefits of rules requiring defendants to make their objections during trial:
A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question....
A contemporaneous-objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation ... the jury may acquit the defendant, and that will be the end of the case; or it may nonetheless convict the defendant, and he will have one less federal constitutional claim to assert in his federal habeas petition. ... An objection on the spot may force the prosecution to take a hard look at its whole card.
433 U.S. at 88-89, 97 S.Ct. at 2507 (footnote omitted).
Perhaps the Court gave the most succinct summary of the rationale for its habeas jurisprudence in Sykes where it stated: “the state trial on the merits” should be “the ‘main event,’ ... rather than a ‘tryout on the road’ for what will later be the determinative federal habeas hearing.” 433 U.S. at 90, 97 S.Ct. at 2508.
On remand from this court, the district court made the “deliberate bypass” inquiry and found that it was bound by the findings of the state evidentiaiy hearing, which “was by all accounts full, fair, and adequate.” Reynolds v. Ellingsworth, 1992 WL 404453, at *8 (D.Del.Dec. 31,1992). Based on those findings and the court’s review of the record, the court concluded that Reynolds’ attorneys chose not to object to the prosecutor’s opening statement, preferring “to gamble that the jury would forget the references and eventually find Reynolds not guilty in light of the scanty case presented by the State.” Id. at *9. That was “precisely the kind of calculated decision that Henry v. Mississippi and related precedent warned against.” Id. The court concluded, similar to the holding in Brownstein, that “[a] defendant in state court may not, in short, use federal habeas proceedings as a hedge against the chance that his or her guess with regard to the jury will turn out to be incorrect.” Id.
I agree with the district court. Reynolds-took his chances and he lost. He engaged in the kind of strategic behavior that disentitles him to habeas relief.
. Although the majority accepts without discomfort our holding in Reynolds v. Ellingsworth (Reynolds I), 843 F.2d 712, 719 (3d Cir.), cert. denied, 488 U.S. 960, 109 S.Ct. 403, 102 L.Ed.2d 391 (1988), I cannot avoid some comment on the curious nature of that decision. As the majority notes, the Superior Court of Delaware, affirmed by the Supreme Court of Delaware, held that Reynolds had waived his right to object to the prosecutor's opening comments and the court’s failure to sua sponte give a curative instruction because he failed to make a contemporaneous objection as required by the Delaware Supreme Court's earlier opinion in Conyers v. State, 422 A.2d 345, 346 (Del.1980) (per curiam). Nonetheless, despite the fact that in this very case the Delaware Supreme Court acknowledged that Conyers had enunciated such a rule, this court held that the absence of a governing "specific Delaware procedural rule” precluded our finding that Conyers constituted an adequate and independent state procedural ground supporting default.
. Notwithstanding the language of Fay requiring that the bypass be personal, and not that of the defendant’s attorney, later cases have held that a litigant is bound by the conduct of his attorney. See Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965) (”[C]ounsel's deliberate choice of the strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here.”); see also McClesky, 499 U.S. at 494, 111 S.Ct. at 1470 ("Attorney error short of ineffective assistance of counsel ... does not constitute cause and will not excuse a procedural default.”); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639,- 2645, 91 L.Ed.2d 397 (1986) ("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective ... we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.”); see generally Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (“Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.”).
. We note in passing that there was no testimony by counsel that they had, in fact, adopted the plan hypothesized by the majority.