Lead Opinion
Appellant Will Washington appeals from a judgment entered in the United States District Court for the Western District of New York, Curtin, /., denying his petition for a writ of habeas corpus. Washington argues that the district judge erred on the merits. We do not reach the merits, however, because we believe that Washington procedurally defaulted his federal claim by failing to raise it adequately before the state courts. Because neither party briefed this issue, we requested supplemental briefs from both parties addressing the following question:
Whether, and to what extent, the analysis in Granberry v. Greer,481 U.S. 129 ,107 S.Ct. 1671 ,95 L.Ed.2d 119 (1987), should be applied by a federal appellate court reviewing the denial of a habeas petition in determining whether to reach the merits of a constitutional argument, where the state prosecutor has incorrectly conceded that the argument was properly raised to the state courts and therefore failed to object in the distriсt court that the argument could not be raised because of procedural default.
We hold that Washington’s procedural default may not be excused either under Murray v. Carrier,
BACKGROUND
On May 27, 1986 Undercover Officer Joe Petronella picked up Ms. Verenda Starks in his car and they set off to buy drugs, as arranged. Petronella had purchased drugs from Starks before. The two were accompanied by a confidential informant who was unavailable for the trial. Petronella was wired and his conversations were recorded by a surveillance team.
Starks did not know exactly where to find drugs because it seems she had not used them in some time. Nevertheless, she finally led Petronella to a street in Buffalo where Washington was standing. Petronella parked the car a half block beyond the spot where appellant was standing, and Starks got out and walked bаck to him. After talking with him for a few moments (he was a friend), she returned to the car and told Petronella that heroin cost $15 per bag. Starks testified that Petronella had already given her $50 to buy five bags on her original belief that each bag cost $10. Ultimately he gave her a total of $60 to buy four bags. She then asked Washington to enter a nearby dope house and purchase the heroin for her. Washington was in and out in under five minutes. After giving the drugs to Starks, he walked back to where he had been and Starks got back into the car. Petronella gave Starks $10 for her efforts. Although the prosecution speculated that Washington kept the extra $5 per bag, there is no evidence that he received any benefit for buying the drugs.
Both Washington and Starks were indicted in Erie County as accomplices in the Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.39 (McKinney 1992), and the Criminal Possession of a Controlled Substance in the Third Degree, N.Y. Penal Law § 220.16 (McKinney
At trial the prosecution had to prove (1) that Starks knowingly sold drugs to Petronella, and (2) that Washington was her accomplice. Under New'York law a defendant cannot be found guilty of criminal sale if he obtains drugs merely as a favor for the buyer. Therefore, the prosecution also bore the burden of disproving Washington’s “agency defense.” Washington’s agency theory was that he was merely accommodating Starks — that he was doing a favor for a friend. As far as he was concerned the subsequent Starks-Petronella transaction was entirely separate.
After unsuccessful appeals to the state appellate courts, Washington petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argued that the state trial judge’s jury instructions deprived him of a fair trial because the judge effectively vitiated his agency defense theory by committing three errors in the charge. First and foremost, Washington complained that the trial judge charged the jury that he would escape conviction if “he acted as an agent for Petronella ” (emphasis added). Washington contended that his defense was that he was Starks’ agent and that he had nothing at all to do with Petronella. According to Washington, however, the trial judge never raised this possibility to the jury. In addition, Washington argued that the trial court effectively removed from the prosecution the burden of proving accomplice liability and of proving who the “buyer” and “seller” were in the transaction.
Judge Curtin denied the petition in an order dated October 30, 1991. He reasoned that although the state court judge did indeed charge the jury incorrectly as to the agency defense, the error did not “so infectf ] the entire trial that the resulting conviction violated due process.”
DISCUSSION
Washington’s conviction in the Erie County trial court was affirmed by the Fourth Department of the Appellate Division in a short memorandum decision. People v. Washington,
I. Presentation of Federal Claims to State Courts
Washington did not fairly present to the state courts the question whether the trial judge’s agency instruction was constitutionally infirm and deprived him of due process of law. See Wilwording v. Swenson,
Washington also argued to the state courts that the trial judge “expressed a predisposition as to appellant’s guilt.” In our opinion, the crux of this argument was that the trial judge demonstrated bias against Washington and influenced the jury to accept the prosecution’s view of accomplice liability and who the “buyer” and “seller” were. Indeed, Washington mimicked the language of his trial counsel whose only objection at trial to the jury charge was that the jury “may view the Court as having a predisposition or a decision that each of those things were [sic] true.”
Exhibiting a predisposition or bias is simply not the same as improperly removing from the prosecution the burden of disproving the agency defense. The first goes to how the jury perceives the facts, the second to whether the jury is permitted to consider those facts. Moreover, to the extent that Washington suggested in his state court briefs that the trial judge took from the jury the questions of accomplice liability and who the “buyer” and “seller” were, he utterly failed to link these errors to the vitiation of the agency defense, which is the issue before us. The state appellate courts had no reason to believe that Washington was actually complaining about the agency defense instruction and the Appellate Division did not address that issue in its memorandum opinion.
Consequently, we do not believe Washington has fairly presented to the state courts his constitutional objection to the agency defense instruction. He has neither cited chapter and verse of the Constitution nor satisfied any of the four criteria listed in our opinion in Daye v. Attorney General of New York,
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. Washington no longer has the right to raise his claim under New York law either on direct appeal, see McKinney’s 1993 Revised N.Y.Court Rules § 500.-10(a), or on collateral review. New York’s collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y.Crim.Proc. Law § 440.10(2)(c). Therefore Washington has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke,
Generally, a federal writ of habeas corpus will not issue if the petitioner has forfeited his claim in state court through a procedural default, unless he can demonstrate cause and prejudice for the default. Wainwright v. Sykes,
If there has been a “fundamental miscarriage of justice,” however, a procedural default may be excused even without a showing of cause and prejudice. Murray,
We do not believe any such showing can be made in this case. Even if we were to hold that the erroneous jury instruction deprived Washington of a fair trial and that indeed he was prejudiced by the error, we cannot say that no reasonable juror could have found him guilty had the instruction been correct. We believe that had the question been properly presented to it, a rational jury could have found that Washington did not act as Starks’ agent. Therefore, there has been no fundamental miscarriage of justice.
Nevertheless, the inquiry does not end here. Unlike in any of the cases cited, the government here failed to raise the procedural default defense. If we are bound by, or may accept the government’s initial concession that Washington has fairly presented the state courts with the arguments he raises to us, then we are free to reach the merits. Otherwise, the petition must be denied.
III. Prosecution’s Failure to Raise the Defense
A procedural default in state court is not a jurisdictional bar in federal court. We are reluctant to hear claims procedurally defаulted in state court for the same basic reasons we prefer not to hear claims that have not been exhausted in state court. See Coleman v. Thompson, — U.S.-,-,
A. Authority to Raise the Defense Sua Sponte
The government never raised the procedural default question of its own accord. This is not a case where the government consciously waived the procedural default defense knowing that it may indeed be valid. When met with these circumstances, the Seventh Circuit held that a federal court mаy not refuse to accept the conscious waiver. Henderson v. Thieret,
We believe that we may raise the procedural default issue sua sponte. Principles of comity and federalism bear on the relations between court systems, and those relations will be affected whether or not the litigants have raised the issue themselves. We find support in at least two othеr circuits that have recently handed down decisions holding that the federal courts have the authority to raise the procedural default defense sua sponte. See Hardiman v. Reynolds,
B. Propriety of Raising the Defense Sua Sponte
We have found no direct guidance from the Supreme Court as to when we ought to raise the issue sua sponte. Nor have the parties provided us with a coherent theory. We believe, however, that the analysis in Gran-berry easily can and should be adapted to fit the procedural default context. Exhaustion and procedural default are related concepts and stem from the same policy concerns.
In Granberry, the State of Illinois successfully moved in federal district court to dismiss petitioner’s habeas complаint for failure to state a claim. For the first time on appeal, the state argued that petitioner had not exhausted his state remedies. Petitioner responded that by failing to raise exhaustion in the district court the state had waived the defense. The Court of Appeals disagreed and ordered the case dismissed on the ground of nonexhaustion.
The Supreme Court reversed and remanded. Justice Stevens wrote: “[An appellate] court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner’s claim.”
Aside from cases in which the prosecutor fails to raise the nonexhaustion defense solely to obtain a tactical advantage,
The second line of cases seems to build on the statutory exception permitting nonexhaustion where recourse to state remedies is futile. See 28 U.S.C. § 2254(b). Thus, in Workman v. Tate,
Because the case before us does not fit into either of the two general categories, we turn to the Cranberry Court’s final example which is grounded in the notion of miscarriage of justice. Justice Stevens wrote, referring to Frisbie v. Collins,
The Granberry Court relied on the Frisbie case as its sole example of a “miscarriage of justice.” In Frisbie, the circumstances were undoubtedly exceptional: the prisoner had been beaten and kidnapped in Illinois by Michigan police officers in violation of the federal anti-kidnapping statute. Thus, the federal question raised did not go merely to the legality of the conviction or to a procedure within the trial, but rather challenged the legality of the trial itself. Collins v. Frisbie,
Even if we were to hold that Sawyer modified the definition of “miscarriage of justice” in the Granberry context, we would still be convinced that it should be defined more loosely in our context. Unlike in exhaustion cases, if we decline to reach the merits in a procedural default case, the defendant has no further recourse to either state or federal relief. Justice dictates that we act with greater leniency when determining whether to shut off a defendant’s last avenue of hope.
On the other hand, we cannot define the exception so broadly that it swallows the rule. Thus, for instance, a miscarriage of justice must be more than simply a prejudicial federal statutory or constitutional error because this is always required before we will issue a writ of habeas corpus. Nor do we think that a “clear violation” of federal statutory or constitutional rules constitutes a principled definition. An innocent person wrongly convicted because of federal statutory or constitutional error has not undergone worse treatment merely because the whole world can spot the error, and not just the legally sophisticated. Error rises to the level of “miscarriage of justice” not because it is conspicuous, but because of the nature or seriousness of its effect.
We beliеve there are two categories of circumstances that may be properly labelled “miscarriages of justice” in this context. These categories are consistent with the Granberry principles and relevant case law and strike a just balance between fairness owed to the individual defendant on the one hand and the deference owed to state courts on the other.
The first category involves a federal violation which challenges the validity of the trial itself. The most obvious example is the Frisbie case described above. Another example might involve the Double Jeopardy Clause. It is doubtful that these types of situations implicate comity or federalism at all because under federal law the state courts never obtained the authority to conduct a trial. In a sense the state courts would be acting as extralegal tribunals, and we are far less hеsitant to reach the merits in this situation.
The second category involves federal violations that were motivated by malice and not caused by mere inadvertence or poor judgment. A state court system that purposefully and unjustifiably violates a defendant’s federal rights cannot be entitled to the same deference as a system that makes only innocent mistakes. When the government fails to raise a procedural default defense, we will reach the merits if the petitioner can show that conscious malice by a state court official caused a federal violation.
The case at bar does not fall within the first category because Washington challenges only his conviction, not the validity of the trial itself. Nor do we believe it belongs in the second category. We need not decide the evidentiary standard for the second category today beсause at a minimum, there must be some evidence on the record aside from the federal violation itself indicating that the state judge intentionally violated appellant’s federal rights — and here there is none.
CONCLUSION
Washington has procedurally defaulted his federal claim regarding the agency defense and can show no cause for the default. Although the government failed to raise the issue, we have the authority to raise it sua sponte. Following the analysis in Granberry, we believe that the principles of comity and federalism dictate that we raise the defense except in four circumstances: (1) where comity and federalism are not implicated or where they are better served by reaching the merits; (2) where the state is itself at fault for the procedural default; (3) where the alleged federal violation challenges the validity of the state trial itself; or (4) where the alleged federal violation was motivated by malice. Because none of these exceptions applies to Washington’s case, we will not excuse his procedural default.
Accordingly, the judgment of the district court is affirmed.
Notes
. We do not understand Washington to be claiming on appeal that either of these two latter errors, standing alone, violated his constitutional rights. Instead, each error allegedly contributed to the vitiation of the agency defense. The single "Question Presented” in appellant’s main brief reads in pertinent part as follows: "Did the judge’s charge on agency violate Petitioner’s Fifth and Fourteenth Amendment rights in directing a finding that vitiated the Petitioner’s agency defense?” In any event, we do not believe that either of the two alleged trial errors " ‘had substantial and injurious effect or influence in determining the jury’s verdict,’ ” Brecht v. Abrahamson, — U.S. -, -,
. Judge Curtin also ruled that the state court "did not remove the accessory element from the State's proof,” primarily because its statement that Starks was an accomplice as a matter of law was aimed only at protecting Washington from being convicted on the uncorroborated testimony of an accomplice. We do not understand Washington to be appealing from this particular ruling. In any event, we concur in Judge Curtin's result, particularly in light of later statements made by the state court judge in the course of his jury charge which made it perfectly clear to the jury that it was up to it to decide the issue of accessorial liability.
. That Granberry addressed a belatedly raised defense rather than a defense that was not raised at all does not destroy the analogy. As the Tenth Cirсuit recognized, the question in both situations is the same: "Is the defense sufficiently important to warrant consideration even though the government failed properly to raise it?” Hardiman v. Reynolds,
. We need not consider cases involving prosecu-torial tactics because in the procedural default context a prosecutor will rarely benefit from holding the procedural default defense in reserve. In any event, it is clear that in the present case the prosecution's concession or failure to raise the defense was not a strategic maneuver.
Concurrence Opinion
concurring:
I concur in the judgment. While I agree that Washington did not raise his present argument in his appeal to the state Appellate Division, I would affirm principally because Washington did not adequately preserve the argument by objecting even in the state trial court. Thus, in my view, the procedural default that bars our consideration of Washington’s habeas cоntentions occurred at the trial level rather than at the appellate level.
Washington’s principal defense at trial was that he had been acting solely as an agent for his friend, Verenda Starks, who had asked him to purchase drugs. Under New York law, “ ‘[one] who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics.’ ” People v. Lam Lek Chong,
Accordingly, the trial court instructed the jury as follows:
The law does not punish a buyer who buys drugs; therefore, one who acts solely in the capacity of an agent of the buyer cannot be convicted under the law pursuant to the Penal Law of the crime of the criminal sale of a сontrolled substance in the third degree or with the possession with intent to sell. One who acts solely in the capacity of claiming he is an agent for the buyer, cannot be found guilty of buying.
(Trial Transcript May 12,1987 (“Tr.”), at 83.) The court suggested to the jury factors it might consider and gave it examples of ways in which it might determine whether a person was an agent for a buyer. The court also instructed the jury that the burden was on the prosecution to prove beyond a reasonable doubt that Washington had not acted as the agent of the buyer of the narcotics in question. The court never mentioned Starks by name as the person for whom Washington contended he acted as agent. Washington’s attorney, asked whether he had any objections to the charge or any additions to request, responded in the negative.
After several hours of deliberation, the jury returned to ask for elucidation of the terms “sellеr,” “buyer,” and “agent.” The court instructed the jury that the terms “seller” and “buyer” had their ordinary meanings (Tr. 95); that “the Prosecution’s contention ... [was] that both Starks and Washington in this case were sellers of heroin to Petro-nella” (Tr. 98); and that “[i]n this case, the buyer, of course, was the undercover police officer, who you learned was Joseph Petro-nella” (Tr. 95). As to the issue of agency, the court stated:
[I]t is the defendant’s position: That he was not a seller of the drugs in this case to Petronella; that he acted as an agent for Petronella, the buyer in this case; that he*1452 acted as an agent to accommodate, as a friendly gesture; that — and, in fact, if he was an accommodating party, doing a favor for someone that he had nothing to gain, no benefit to him. It is their position — it is the defense’s position, that therefore he should be relieved of any liability.
(Tr. 98-99 (emphasis added).) Though the language italicized in this supplemental instruction evinced a misunderstanding оf Washington’s position, Washington did not offer any correction or ask the court to advise the jury that in fact his position was that he had acted as an agent not for Petronella but for Starks. Rather, Washington’s limited objection to the court’s supplemental instructions was simply as follows:
I don’t have any statements to make in regards to the jury’s questions that I want to make on the record. However, to preserve it, for the record, I would like to state that the defense takes exception to the Court’s statement to the jury that the evidence in this case tends to indicate that Starks was a seller. I would also take exception to the Court’s statement, for the record, that the — to the jury that the prosecution is characterizing Washington as a seller for both of the reasons that the jury may gain — may view the Court as having a predisposition or a decision that each of those things werе [sic] true.
(Tr. 99-100.)
In response to this stated objection, the court said it would “balance” its presentation, and it thereupon essentially restated its earlier instruction as to the ways in which the jury could determine whether a person was an agent for a buyer. Again Washington did not inform the court that his position was that he had acted as the agent of Starks, not of Petronella, or ask the court to so instruct the jury.
In sum, though Washington contends in his present habeas corpus petition that the trial court’s instructions were erroneous because they did not permit the jury to consider his contention that Starks rather than Petronella was the buyer for whom Washington acted as an agent, the only objection he made to the trial court was that that court had characterized the prosecution’s contentions and evidence (a) that Washington was a seller, and (b) that Starks was a seller, in a way that suggested that the court had decided “that each of those things were [sic] true.” Thus, not only did Washington fail to make his present argument in his direct appeal to the Appellate Division, he also failed to advise the trial court that this was the gist of his objection. Had the present objection been made to the trial court, the court could easily have corrected its error. '
Since the objection was not made in the trial court, it is unlikely that the state appellate court would have entertained it even if Washington had raised it in his state-court appeal. See N.Y.Crim.Pro.L. § 470.05(2) (McKinney Supp.1993) (defendant normally must object to a jury instruction at trial in order to preserve the issue for appellate review); Taylor v. Harris,
Dissenting Opinion
dissenting:
In this case the only defense, and one that was valid in law, was that Washington was the agent of a buyer (Verenda Starks, who was buying the drugs from a drug house on behalf of Petronella) and therefore he could not be guilty of the sale of a controlled substance. In a supplemental instruction responding to jury questions, the trial judge misrepresented the defense and instructed the jury that Washington was a seller, and that Washington claimed to be the agent of the undercover police officer (Petronella) who set up Starks in the operation for which Washington was prosecuted. I believe the charge vitiated Washington’s agency defense and thereby lowered the state’s burden of proof beyond a reasonable doubt as to all elements of a narcotics sale. If I am correct, this is a violation of the Fifth and Fourteenth
Judge Meskill’s oрinion holds that Washington did not raise his agency instruction due process claim before the state appellate courts and therefore his claim is procedurally defaulted. This decision is made unusual by the fact that the state conceded the procedural default issue until this court raised the question sua sponte. Judge Kearse’s opinion argues that procedural default occurred at the trial level.
Judge Meskill contends that a court of appeals may raise a procedural default defense sua sponte where the state has conceded the issue, so long as the concession is the result of an innocent error rather than a deliberate tactical decision. Further, citing Murray v. Carrier,
Nonetheless, as Judge MeskilPs opinion acknowledges, a court of appeals should consider a procedural default claim waived if it is evident that a “miscarriage of justice” has occurred. Judge Meskill appreciates that “miscarriage of justice” should be defined more loosely in this context, where the state has conceded the exhaustion question, than in either the typical procedural default context, in which a petitioner must demonstrate “actual innocence,” Murray,
I have two disagreements with the opinion. First, I think that it fails to account for an important category of cases in which it is inappropriate for a court of appeals to raise a procedural default defense sua sponte. Judge Meskill derives his “miscarriage of justice” category from the Granberry Court’s statement that “if a full trial has been held in the district court and it is evident that a miscarriage of justice has occurred, it may also be appropriate for the court of appeals to hold that the nonexhaustion defense has been waived in order to avoid unnecessary delay in granting relief that is plainly warranted.”
Granberry provides for a broader interpretation of “miscarriage of justice” than Judge Meskill’s opinion suggests. Granberry requires a court of appeals to determine “whether the interests of justice would be better served by addressing the merits of the habeas petition or by requiring additional state proceedings before doing so.” Granberry,
Granberry itself, in my view, contradicts the opinion’s position that the conspicuousness of an error is unrelated to whether a court of appeals should raise a procedural default defense sua sponte. The Granberry passage concerning “miscarriage of justice” cited above states that a nonexhaustion defense may be considered waived “in order to avoid unnecessary delay in granting relief that is plainly warranted.”
My disagreement with Judge Meskill’s opinion is not limited to his handling of the procedural bar — the question whether we should consider Washington’s claims on the merits — but extends also to his treatment of the merits themselves. Judge Meskill contends that the decision to raise the procedural default defense sua sponte alleviates the need to evaluate Washington’s claims on the merits. Opinion at 1448-49. Despite this claim, his opinion takes a position on the merits in footnote 1, stating that two of the three alleged trial errors standing alone did not have “1 “substantial and injurious effеct or influence in determining the jury’s verdict,” ’ and we would not issue the writ on the basis of either alleged error, standing alone.” (Citations omitted.)
As the opinion notes, Washington alleges that three errors in the trial instructions to the jury deprived him of a fair trial and violated his due process rights. First, the trial judge charged the jury that Washington would escape conviction if “he acted as an agent for Petronella.” (Washington’s defense was based on the theory that he was Starks’ agent and had nothing to do with Petronella). Second, the trial court removed from the pi’osecution the burden of proving accomplice liability, stating that “as a matter of law ... Verenda Starks was an accomplice.” Third, when asked by the jury to define and differentiate the terms “buyer” and “seller,” the court, instead, erroneously told the jury who it believed the buyer and seller to be.
Although Judge Meskill may be accurate in saying that the last two of these errors standing alone are insufficient to justify granting a writ of habeas, as a package, the trial errors were serious and should be enough to’ meet the merits-based “miscarriage of justice” category I believe the Supreme Court cases establish. My view is strengthened by the recent Supreme Court decision in Sullivan v. Louisiana, — U.S. -,
I turn to Judge Kearse’s opinion that there was procedural default at the trial level, for failure properly to objеct to the trial court’s erroneous supplemental instruction that it was the defense’s position that Washington acted as an agent of Petronella, the buyer. Defense counsel objected both to the court’s statement that the evidence indicated that Starks was a seller and to the court’s characterization of Starks’ and Washington’s roles as sellers. While the objections could have been more pointed, the court was certainly aware of the basic defense that Washington was the agent of the buyer, Starks, when she bought from the drug house, and not of Starks as seller to Petronella. The court stated to defense counsel:
The Court: As far as the charge is concerned, you have already indicated off the record that you are requesting a charge on*1455 the defense agency — agency defense; is that correct?
Mr. Hahn: Yes, Your Honor.
The Court: I will be so charging....
Trial Transcript, Petitioner’s Appendix at 75. Subsequently, defense counsel stated:
Your Honor, the Court has indiсated that it will charge on agency, and I have a proposed charge which I would like to tender to the Court on agency. It may be the same one. It may be similar to the one the Court is going to use. If, by the facts, the jury does not find that my client was an agent of the buyer and acquits on criminal sale, then....
Appendix at 79 (emphasis added). The court in its original charge to the jury did give the agency instruction that “the Defendant Washington ... claims that during the transaction in this case that he was acting as the agent of the buyer, alleging that he was the agent of the buyer.” Appendix at 95.
The supplemental instructions and objections thereto must be read in light of these instructions and what followed, including the further instruction: “How do you decide whether or not the People have proved beyond a reasonable doubt to your satisfaction that the defendant was not acting solely as a [sic] an agent of the buyer?” Appendix at 97. The supplemеntal instructions, by stating that the evidence indicated that Starks was a seller and characterizing both Starks’ and Washington’s roles as sellers, wiped out the sole defense and belied the original charge. I do not think that defense counsel, confronted suddenly with such a supplemental charge, can be required to frame his objections with the technical expertise of counsel who has been handed a written charge in advance as required by, say, the federal rules.
In my view, the supplemental charge blew the defense away by depriving the jury of the option of selecting Starks as the buyer. Because I view the objections taken in context as sufficient, I would proceed to the merits for the reasons stated above, in my discussion of Judge Meskül’s opinion. Reaching the merits, I would reverse. Because both of my colleagues’ opinions sua sponte raise unnecessary prudential barriers in a case where the defendant was deprived of fundamental fairness by the trial court’s supplemental charge, I dissent.