concurring.
The ineffective assistance alternative ground on which we are remanding was not explicitly argued to the district court. Indeed, the State contends it was not even alleged in the district court. Based upon my review of Odem’s amended petition for a writ of habeas corpus, that may be a serious issue, particularly since any amendment to the petition at this time might arguably be successive or abusive. Moreover, even if this specific ineffective assistance issue was raised in the district court, there is the additional question whether it was rejected on the merits when the court stated in its November 19, 1998, order: “The Court is persuaded that trial counsel was unable to make, and should not reasonably have been expected *778to make, the connection between the red jacket seized from Odem’s brother and the red jacket which bore a head hair of Kim Smith given the manner in which this information was provided.” I do not reach the merits of these questions, or any other question relating to this theory of ineffective assistance, because they are better left for further consideration by the district court on remand.