Circuit Judge, specially concurring:
We requested rebriefing in this case after we became aware of tapes containing vindictive voice-mail messages, left on Hanson’s answering machine by the victim’s mother, indicating her vendetta to do anything to get even with him after their breakup. Because that plan might have included fabricating charges of child abuse, the tapes, had they been placed into evidence, could have influenced the jury’s decision regarding Hanson’s guilt. Hanson’s trial counsel never sought to introduce the messages; under the circumstances, that failure may have constituted ineffective assistance of counsel.
However, at this juncture, that particular claim cannot be entertained. See Majority at 193 n. 1. Thus, this appeal illustrates the consequences — often tragic— that result from procedural failures, as cases proceed from trial to appeal to post-conviction proceedings. At our level of review, frequently we are unable to untie the Gordian knot. That is so in this case.
Equally tragic, Hanson continues to sit in jail even though he is eligible for release — and has been for some time. The State of Montana requires him to register as a sex offender, but Hanson maintains his innocence and refuses to do so. Thus, he remains incarcerated pending resolution of a subsequent charge for refusing to register as a sex offender. No stay of incarceration was entered during the pendency of these proceedings.
At oral argument, I suggested to the State that it consider alternatives to pursuing these new state-law charges in light *1115of the strength of Hanson’s claim of ineffective assistance of counsel and his unwavering claim of innocence. The State’s stringent and unbending approach, however unfortunate, is unremediable.