Ralph Buelow v. Walter Dickey, Carol Buelow v. Walter Dickey ( 1988 )

RIPPLE, Circuit Judge,

concurring.

I join the judgment of the court. Like my brothers, I believe that the procedural default issue here is governed by the “cause and prejudice” test of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). See Johnson v. United States, 838 F.2d 201, 206-07 (Ripple, J., concurring). Counsel’s error here was the kind of “simple inexcusable neglect” that the court has held does not constitute “cause.” See Nutall v. Greer, 764 F.2d 462, 464 (7th Cir.1985). On this basis, I join the court in holding that the district court was obliged to dismiss the petition for habeas corpus.