What is the legal test for deliberate by-passing in a pro se motion?
MultiRegion, United States of America
The following excerpt is from Smart v. Scully, 787 F.2d 816 (2nd Cir. 1986):
The procedural failure here does not rise to the level of a Sykes procedural default, therefore, the only remaining barrier to habeas corpus review would be the Fay v. Noia deliberate by-pass standard. Yet, here, it seems quite inappropriate to characterize appellant's failure to comply with the requirement for sworn statements in a pro se motion as deliberate. Indeed, the state does not even argue Fay v. Noia as a ground for affirmance.
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