No. 91-6337.

971 F.2d 500 (1992)

Richard HARDIMAN, Petitioner-Appellant, v. Dan M. REYNOLDS, Warden; and Attorney General of the State of Oklahoma, Respondents-Appellees.

United States Court of Appeals, Tenth Circuit.

July 20, 1992.

Attorney(s) appearing for the Case

Richard Hardiman, pro se.

Susan Brimer Loving, Atty. Gen., and Steven Spears Kerr, Asst. Atty. Gen., Oklahoma City, Okl., for respondents-appellees.

Before EBEL, Circuit Judge, BARRETT, Senior Circuit Judge, and PARKER, District Judge.

EBEL, Circuit Judge.

This is an appeal from a dismissal of a habeas corpus petition under 28 U.S.C. § 2254 on the ground of state procedural default. We hold that the defense of state procedural default may be raised sua sponte so long as the court provides the petitioner an opportunity to respond to the defense.1 We also hold that defense counsel may, under some circumstances, have a constitutional duty to discuss the merits of appeal...

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