dissenting.
I respectfully dissent. The Court errs, in my view, as a result of an inappropriate separation of the issues raised by the' allegations in the petition. The Court says that, absent extenuating circumstances, all issues which could have been raised in a prior post-conviction proceeding are barred by 15 M.R.S.A. § 2128(3). The Court then, by a narrow reading of the post-conviction review statute, disposes of the very allegations which may supply the extenuating circumstances. As a result, the Court affirms the summary dismissal of the petition.
I do not question the legitimate purpose of section 2128(3) to prevent piecemeal attack upon criminal convictions. The concept of issue preclusion by waiver existed in our prior statute, 14 M.R.S.A. §§ 5502 and 5507, and has been applied by prior decisions of this Court. Shorette v. State, 402 A.2d 450 (Me.1979); Mottram v. State, 263 A.2d 715 (Me.1970). We have previously recognized, however, that only a post-conviction proceeding which comports with due process can be said to preclude subsequent *891post-eonviction attack on the criminal judgment. Brine v. State, 232 A.2d 88 (Me.1967). The allegation of flaws in a prior post-conviction proceeding may serve to avoid the bar of section 2128(3). In Nadeau v. State, 232 A.2d 82 (Me.1967) we decided that a change in the law was a sufficient basis to avoid waiver even though no such basis was specifically alleged.
I would vacate the summary dismissal in this case.