dissenting.
I dissent.
This is an egregious ease of incompetence of counsel in representing a defendant in a criminal ease. For the comparatively minor offenses of receiving stolen property and hindering prosecution, Shigemura is serving a twenty-year prison term.
In brief, Shigemura complained that his counsel provided ineffective assistance. The trial court essentially agreed, finding “probable cause,” and the judge directed Shigemu-ra’s counsel to withdraw. The trial court further ordered that Shigemura’s new appointed counsel determine the particular facts and grounds for an ineffective assistance claim and timely file the appropriate motion for post-conviction relief if such facts and grounds existed.
Counsel failed to follow the district court’s order. He apparently did nothing. Under these circumstances, petitioner has shown cause and prejudice for the procedural default. This is not a case of only counsel’s default. In this case, official action of the district court constituted the external factor which reheves Shigemura of the procedural default bar. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1988); Parkus v. Delo, 33 F.3d 933, 938 (8th Cir.1994).
The majority takes a very narrow and restricted view of the state trial judge’s order. Paragraph four of the trial court’s written order states:
Counsel appointed above shall ascertain whether facts and grounds exist for the filing of a motion pursuant to Rule 24.035 or Rule 29.15, and, if such facts and grounds exist, shall timely file the appropriate motion.
Op. at 252. Although the trial court may not have “ordered” or “directed” appellate counsel to file a 29.15 motion, it certainly, at least, required counsel to ascertain the merits of such a motion. Counsel did neither. Additionally, the opening of the district court’s order indicates that it had “found that probable cause of ineffective assistance of counsel exist[ed].” Because counsel did nothing, this presumptive finding still exists.
Procedural default serves as an unwitting trap for the person who may have a just grievance for the federal courts. That artificial bar to a just resolution of disputes of this sort should not be expanded without good reason. No good reason exists here.