(concurring specially).
I concur in Divisions I-V and the result.
I agree with the holding in Division VI that petitioner’s claim should be entertained in the postconviction court because the record does not show he deliberately failed to raise it on direct appeal. However, to the extent that Rinehart v. State, 234 N.W.2d 649, 657 (Iowa 1975), places the burden on a postconviction petitioner to plead and prove sufficient reason for such failure, I believe it should be overruled.
The Rinehart rule is inconsistent with federal waiver standards which are applicable to claims based on federal grounds. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Smith v. Wolff, 506 F.2d 556 (8 Cir. 1974). I think our legislature intended chapter 663A proceedings to be available to state prisoners asserting federal constitutional claims on the same basis such claims can be made in federal courts. The inconsistency between the Rinehart rule and federal waiver standards has the inevitable effect of closing state courts to state prisoners who cannot meet their burden to prove “sufficient reason” for failure to assert their claims in earlier proceedings. However, federal court habeas corpus relief will nevertheless be available when the State cannot meet its burden to prove a deliberate bypass of state remedies.
I would hold sufficient reason exists for failure to utilize a prior procedural remedy within the meaning of Code § 663A.8 when such procedural remedy was not deliberately bypassed, and I would put the burden of pleading and proving deliberate bypass on the State.