Harry Blackmun

“ In a sleight of logic that would be ironic if not for its tragic consequences, the majority concludes that a state prisoner pursuing state collateral relief must bear the risk of his attorney's grave errors-even if the result of those errors is that the prisoner will be executed without having presented his federal claims to a federal court-because this attribution of risk represents the appropriate "allocation of costs." ”

“ See also The Federalist No. 51, p. 324 (C. Rossiter ed. 1961) (J. Madison) ("Justice is the end of government. It is the end of civil society") . In this context, it cannot lightly be assumed that the interests of federalism are fostered by a rule that impedes federal review of federal constitutional claims.
Moreover, the form of federalism embraced by today's majority bears little resemblance to that adopted by the Framers of the Constitution and ratified by the original States. The majority proceeds as if the sovereign interests of the States and the Federal Government were co-equal. ”

“ It then must determine whether that judgment expresses the substance that the court wishes to convey in its summary order, and react accordingly. If the previous reasoned judgment rests on a procedural default, and the subsequent court wishes to forgive that default, it now must clearly and expressly indicate that its judgment does not rest on a state procedural default. I see no benefit in abandoning a clear rule to create chaos. ”

“ Accordingly, if a State desires to remove from the process of direct appellate review a claim or category of claims, the Fourteenth Amendment binds the State to ensure that the defendant has effective assistance of counsel for the entirety of the procedure where the removed claims may be raised. Similarly, fundamental fairness dictates that the State, having removed certain claims from the process of direct review, bear the burden of ineffective assistance of counsel in the proceeding to which the claim has been removed. ”

“ The majority's attempt to distinguish between the interests of state courts and the interests of the States in this context is inexplicable. States do not exist independent of their officers, agents, and citizens. ”

“ Rather, the important office of the federal courts in vindicating federal rights gives way to the States' enforcement of their procedural rules to protect the States' interest in being an equal partner in safeguarding federal rights. ”