dissenting:
In concluding that Hector Wood has forfeited his right to seek relief from a federal court for the state’s violation of his right to a fair trial, the majority relies exclusively on his failure to demonstrate cause for what it holds to have been his state procedural default — leaving Oregon without permission from his parole officer. If Wood’s leaving the state without permission were in fact the state procedural default, I might be compelled by precedent to join the majority’s opinion, despite the fact that Oregon probably convicted him without affording him a fair trial. The procedural default in this case, however, is not simply Wood’s leaving the state without permission — it is more complicated than that.
When the Oregon court dismissed Wood’s appeal, it did so on the ground of the fugitive disentitlement doctrine, which, as the majority points out, involves a discretionary determination. • In deciding to apply this doctrine to Wood, the state court took into account a number of factors, not just his failure to obtain permission before leaving Oregon for his daughter’s home in California. The state court did not say that leaving Oregon prior to obtaining permission would in itself be sufficient to warrant the dismissal of Wood’s appeal, regardless of the nature of the attendant circumstances or the gravity of the exigencies; instead, it relied on a totality of the circumstances approach.1 The majority is therefore wrong in concluding that Wood’s failure to show cause for not obtaining permission to leave Oregon prior to going to California necessarily precludes him from establishing cause for his procedural default.
Under the state court’s analysis, Wood’s failure to obtain permission was a necessary but not sufficient factor in the finding that he was disentitled from pursuing an appeal. In most eases involving a procedural default, the application of the default is fairly mechanical — if the defendant failed to take a particular action at a particular time, he defaulted. In such cases, the federal court’s cause analysis can be also be quite routine — if the defendant establishes a cognizable excuse for the particular omission, he shows cause. If not, his rights are forfeited. Where the state court looks to the totality of the circumstances, however, and not just to a single omission, the cause analysis likewise must take into account all of the relevant circumstances. Accordingly, I believe the majority errs in reducing the cause analysis to a single factor.
Given that we are not free to ignore the relevant facts and circumstances, I would remand to the district court for an evidentia-ry hearing in order to determine what those facts and circumstances actually are. Notwithstanding the importance of the compelling considerations offered by Wood in this case, no court has determined whether, as appears to be the case, Wood’s heart condition was life threatening and whether he had to leave Oregon immediately. No court has determined whether he could have obtained the necessary medical care in Oregon or whether he had no choice but to go to California. No court has ever considered whether he and his daughter constantly kept the Oregon officials apprised of his whereabouts, as they contend they did. Wood submitted affidavits raising genuine issues of fact as to all these points. No court has yet been interested enough to look into them. If all of Wood’s contentions are true, he may indeed have cause, once Oregon’s reasons for refusing .to permit him to appeal are viewed in the proper light.
I am not willing to assume, as my colleagues do, that the Oregon justice system is so harsh and unreasonable that if Wood truly left Oregon to obtain life-saving medical *381treatment that the state refused to provide, and if he constantly kept the state informed of his whereabouts, the state would refuse to allow him to appeal a deprivation of his right to a fair trial simply because he did not obtain permission in advance of his departure. Although the Oregon court’s explanation is far from clear, I would afford that court the presumption of having a commitment to fairness and justice than so cruel and arbitrary a ruling would imply. Thus, unlike the majority, I do not think that the only issue before us is whether Wood had cause for failing to obtain advance permission before taking an action that was necessary to save his life.
Because the state court’s decision to invoke the fugitive disentitlement doctrine and dismiss Wood’s appeal was ultimately based on the totality of the factors, the federal courts should not simply rubber-stamp the state court’s forfeiture of his right to have his constitutional claim determined on the merits. Rather, we have an obligation to conduct an evidentiary hearing and make the necessary factual determinations regarding those factors. Accordingly, I would remand to the district court for such a hearing.
. Specifically, the state court explained its decision as follows:
In deciding this motion [to dismiss], the court has considered these factors: Appellant left the State of Oregon allegedly because he needed heart surgery and could not get the surgery performed in Oregon; appellant may have kept Oregon authorities informed of his whereabouts; appellant has returned to Ore-
gon and has been taken into custody; appellant has a history of absconding from justice; and appellant left the State of Oregon on this occasion without permission from the supervising authority.
In light of all these factors, the court exercises its discretion in favor of determining that appellant is disentitled to pursue this appeal.