(concurring specially).
We acknowledged and enforced in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737, (1976), the rule embodied in Minn.Stat. ch. 590 (1984) and Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965), that a convicted defendant is entitled to at least one right of review by an appellate or post-conviction court where, “[u]pon a showing of either constitutional error or error in the admissibility or sufficiency of evidence so prejudicial as to require reversal, affirmative relief must be available.” Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. In Knaffla, we overruled our decision in Tyson v. State, 298 Minn. 559, 214 N.W.2d 461 (1974), to the extent that it required courts not to consider issues raised in post conviction proceedings unless a direct appeal had been taken. We did not, however, overrule our adoption in Tyson of the rule proposed in A.B.A. Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies (Approved Draft, 1968) § 6.1:
(a) Unless otherwise required in the interest of justice, any grounds for post conviction relief set forth in section 2.1 which have been fully and finally litigated in the proceedings leading to the judgment of conviction should not be re-litigated in post-conviction proceedings.
*801(c) Where an applicant raises in a post-conviction proceeding a factual or legal contention which he knew of and which he deliberately and inexcusably
(i) failed to raise the proceeding leading to judgment of conviction, or
(ii) having raised the contention in the trial court, failed to pursue the matter on appeal,
a court should deny relief on the ground of an abuse of process.
See Tyson, 214 N.W.2d at 462, n. 1 (emphasis added). It is true that we said, in dicta, in Knaffla, 243 N.W.2d at 741, and again, in dicta, in State v. Myers, 273 N.W.2d 656 (Minn.1978) that when a defendant has taken a direct appeal, “he may not thereafter raise in a post-conviction proceeding any matter which he raised on direct appeal, or which he knew at that time but did not raise. Id. at 657 (emphasis added). We must still determine, however, when, as here, a defendant does raise an issue not raised on direct appeal, whether he “deliberately and inexcusably” failed to raise that issue on appeal. It is not a question of whether we should extend Knaffla, it is a question of whether we should afford the broad relief intended by the legislature when it enacted chapter 590 — a remedy wherein the state courts could rule on fundamental issues which had not been tried before those issues reached the federal courts on habeas corpus.
In Knaffla, there had been no direct appeal. In Myers, the issue raised in the post-conviction proceeding had been raised and decided on direct appeal. In the matter before us now, for the first time, we have a situation where certain issues were, presumably, deliberately not raised on direct appeal because appellate counsel, heeding the words of Chief Justice Burger in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), sifted through the potential issues and raised only those which, in the judgment of a professional, were meritorious. But, as to petitioner Case, who wanted to raise every issue on direct appeal, was his failure to raise those issues discarded by appellate counsel inexcusable, as required by our rule? If he was denied the opportunity to raise those issues, either in counsel’s brief or in a supplementary pro se brief, his failure to raise those issues was excusable and the unraised issues were properly raised when the federal court sent him back to exhaust state remedies in a post-conviction proceeding. Furthermore, failure to consider the issues raised in such a case on the merits impinges on the right of a criminal defendant to proceed pro se or pro se with some help from counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), State v. Olsen, 258 N.W.2d 898 (Minn.1977). We are not dealing with an abuse of process. The parties properly tried the issues; the trial court properly analyzed and decided those issues, denying relief; and we have properly affirmed the decision of the trial court on the merits. We should overrule the technical basis for affirmance applied in this case by the Court of Appeals. If we do not, future federal habeas courts will be ruling on issues which our state courts should have ruled on but have not.