dissenting:

I respectfully dissent because I believe that the “deliberate by-pass” standard announced in Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963), applies to a pro se petitioner’s failure to take an appeal. Moreover, I would reach the merits of Hughes’s claim even under the “cause and prejudice” standard adopted by the majority, and grant the petition.

FACTS 1

In exchange for the prosecution’s promise to recommend a 15-year sentence, William Hughes pleaded guilty in Idaho state court to robbery. At sentencing, Hughes’s court-appointed counsel, Mr. Downen, was absent. Instead, another member of Dow-nen’s firm represented Hughes. After conducting a voluntariness examination regarding the guilty plea, the court asked for the prosecutor’s recommendation. The prosecutor, after detailing Hughes’s prior record and emphasizing the circumstances of the present offense, responded as follows:

On the heels of this recommendation, the court sentenced Hughes to an indeterminate sentence not to exceed 25 years.

Later, Hughes, acting pro se, filed a petition for post-conviction relief in Idaho District Court, alleging that the prosecutor had violated the plea bargain. Another inmate aided Hughes in preparing the petition because Hughes is illiterate. The same judge who presided over sentencing summarily dismissed the petition, and Hughes failed to take an appeal, apparently because the inmate who had been helping him had been released.

Thereafter, Hughes, still acting pro se, filed in federal court the present petition for writ of habeas corpus. The state filed an answer claiming that Hughes had failed to exhaust his state remedies, and that the petition should be denied on the merits. In his report, the Magistrate ignored the exhaustion argument, and recommended that the petition be granted and that the case be remanded to state court for resentencing. In objecting to this report, the state addressed only the merits of Hughes’s claim, and did not object to the Magistrate’s failure to respond to the exhaustion issue. The district court, also ignoring the question of exhaustion, disregarded the Magistrate’s recommendation and dismissed the petition on the merits because the prosecuting attorney in fact had recommended a 15-year sentence. Subsequently, Hughes filed the present appeal.

DISCUSSION

A. Applicability of “Deliberate By-Pass" Standard

In Fay v. Noia, 372 U.S. 391, 434 , 83 S.Ct. 822, 846 , 9 L.Ed.2d 837 (1963), the Supreme Court held that a federal court has the power to grant habeas relief despite a petitioner’s failure to appeal in state court. However, the Court also held that as a matter of discretion, a federal court may deny relief to a petitioner “who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.” Id. at 438 , 83 S.Ct. at 848 (emphasis added). Where, on the other hand, a habeas petitioner fails to appeal in state court because of inadvertence or neglect, “thereby forfeiting his state remedies, appellate and collateral, ... those consequences should be sufficient to vindicate the State’s valid interest in orderly procedures.” Id. at 433 , 83 S.Ct. at 846 . Thus, under Fay , we may refuse to hear Hughes’s petition only if he made a “considered choice” to relinquish intentionally his right to appeal in Idaho state court. Id. at 439 , 83 S.Ct. at 849 . Hughes clearly has shown that he did not make such a choice. The state has failed to show otherwise. 2

*911 The majority finds that the “cause and prejudice” standard set forth by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 , 97 S.Ct. 2497, 2506 , 53 L.Ed.2d 594 (1977), applies to Hughes’s failure to appeal. The majority relies upon what it perceives as “the clear trend toward application of that standard” evidenced in the more recent Supreme Court decisions En-gle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982), Reed v. Ross, 468 U.S. 1 , 104 S.Ct. 2901 , 82 L.Ed.2d 1 (1984), and Murray v. Carrier, — U.S.-, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986).

I believe, however, that these decisions are inapplicable to a habeas petitioner’s failure to take an appeal of a state court judgment, and that the only “trend” evidenced in the cases is the failure of courts to be precise in stating the law applicable to a particular factual context. At issue in Wainwright was a petitioner’s failure to comply with the state’s contemporaneous objection rule. In establishing the applicability of the “cause and prejudice” standard in that context, the Supreme Court stated:

433 U.S. at 88 n. 12, 97 S.Ct. at 2507 n. 12. Thus, in refusing to paint with a “broad brush,” id., the Supreme Court explicitly left Fay applicable to a petitioner’s failure to appeal.

In addition, Chief Justice Burger’s Wainwright concurrence explained the basis for applying the Fay standard in some contexts, and the Wainwright standard in others. The determinative question is whether the defaulted procedure involves a decision made solely by the defendant, or one made principally by attorneys in the exercise of their professional expertise. The Fay “deliberate by-pass” standard applies to a failure to appeal because the defendant “himself ha[s] to make the decision whether to appeal or not____” Id. at 92, 97 S.Ct. at 2509 (Burger, C.J., concurring). By contrast, the “cause and prejudice” standard applies to a failure to object contemporaneously because that decision “is necessarily entrusted to the defendant’s at-torney____” Id. at 93 , 97 S.Ct. at 2509 . Thus, in Wainwright , the Supreme Court not only refused to overrule Fay , but the Chief Justice, in concurrence, explained the very basis for preserving it.

Contrary to the majority’s assertion, Engle did nothing to alter the vitality of Fay . In Engle, as in Wainwright , the habeas petitioners had failed to comply with contemporaneous objection rules. 456 U.S. at 110, 124 , 102 S.Ct. at 1570 . All three petitioners in Engle had appealed their convictions in state court. Thus, despite what the majority characterizes as the Court’s “broad” holding regarding the applicability of the “cause and prejudice” standard, Engle did nothing more than reaffirm Wainwright ’s holding as applied to failures to object contemporaneously even where the alleged constitutional error affects the truthfinding function of the trial. Id. at 129 , 102 S.Ct. at 1572 . See Murray, 106 S.Ct. at 2644 (like Wainwright, Engle involved claims procedurally defaulted at trial). Indeed, the Court in Engle discussed the Fay “deliberate by-pass” standard in *912 language which suggests that standard’s vitality, not its demise. 456 U.S. at 130 n. 36, 102 S.Ct. at 1573 n. 36.

I do not understand the majority’s reliance upon Reed because that decision, rather than eroding the Fay standard, actually reinforces the applicability of Fay to a petitioner’s failure to appeal. In Reed , the procedural default was a failure by the habeas applicant’s attorney to raise the pivotal habeas issue in the direct appeal which was taken in state court. 468 U.S. at 3, 7 , 104 S.Ct. at 2903, 2906 . In addition to the “broad language” the majority cites regarding the applicability of the “cause and prejudice” standard to the facts in Reed , the Supreme Court stated: “Where ... a defendant has failed to abide by a State’s procedural rule requiring the exercise of legal expertise and judgment, the competing concerns implicated by the exercise of the federal court’s habeas corpus power have come to be embodied in the ‘cause and prejudice’ requirement____” Id. at 11 , 104 S.Ct. at 2906 (emphasis added). The significance of this language derives from the Supreme Court’s supporting citations, which, other than the Engle citation, the majority appears to disregard. First and foremost, the Court cited Chief Justice Burger’s Wainwright concurrence. As previously noted, this concurrence explains why the “deliberate by-pass” standard applies to a defendant’s failure to appeal while the “cause and prejudice” standard applies to procedural defaults for which a defendant’s counsel is responsible. In citing this concurrence, the Court in Reed clearly was recognizing this distinction and finding that the decision regarding which issues to include in an appeal belongs in the latter category which involves “the exercise of legal expertise and judgment.”

Among the Court’s other citations were three circuit court opinions relying on the Chief Justice’s explanation in Wainwright to preserve Fay in the context of a failure to appeal. Id. at 11 n. 7, 104 S.Ct. at 2908 n. 7. In Crick v. Smith, 650 F.2d 860, 867 (6th Cir.1981), cert. denied, 455 U.S. 922 , 102 S.Ct. 1281 , 71 L.Ed.2d 464 (1982), the Sixth Circuit, relying on the distinction drawn by Chief Justice Burger, stated: “Because this is at least a rational distinction, and because Wainwright could have but did not explicitly overrule Fay v. Noia, supra, we conclude that the deliberate bypass rule is still alive and well, or at least remains applicable to its own facts.” Similarly, in Graham v. Mabry, 645 F.2d 603, 606-07 (8th Cir.1981), the Eighth Circuit, citing the Chief Justice’s concurrence, reasoned that Fay applies where the alleged waiver is the result of the defendant’s own decision, including the decision whether to appeal. Finally, in Boyer v. Patton, 579 F.2d 284, 286 (3d Cir.1978), the Third Circuit noted that the Chief Justice’s concurrence “suggested that Fay’s deliberate bypass standard would continue to apply to failures to appeal, which involve ‘the exercise of volition by the defendant himself,’ ” and that Wainwright “did not offer guidance” regarding the standard applicable to such failures. The Supreme Court’s citation to these passages of these opinions belies the majority’s claim that the “broad language” in Reed — which is not really so broad when examined closely — erodes the applicability of Fay to failures to appeal. Indeed, taken in context, the language of Reed makes clear that Fay continues to apply in this context.

Finally, in Murray , the Supreme Court again addressed the “cause and prejudice” standard as applied to a petitioner’s failure to raise the pivotal habeas issue in the appeal which he did take in state court. In reaffirming Wainwright’s applicability to this context, the Court stated:

106 S.Ct. at 2648 (former emphasis added; latter emphasis in original). Thus, in Murray , the Supreme Court specifically refused to expand the applicability of the “cause and prejudice” standard to contexts not already controlled by Wainwright.

Given these Supreme Court opinions, I am convinced that the Fay “deliberate bypass” standard remains applicable where, as in the present case, the petitioner fails to appeal. The Supreme Court clearly draws a distinction between this decision, made solely by the defendant, and other decisions made primarily by the defendant’s attorney. Furthermore, in light of Murray and Reed , I find difficult to understand the majority’s assertion that “the value of [the Supreme Court’s] reservation [of Fay’s applicability] has been diminished by several recent Supreme Court decisions.” Murray , which is the Supreme Court’s most recent relevant decision, expressly makes this reservation. Reed , the next most recent decision, through its language and supporting citations, reinforces the applicability of Fay to the case now before us.

Even were I to agree with the majority that the “cause and prejudice” standard generally applies to a failure to appeal, I do not agree that the standard applies where the petitioner was acting pro se at the time of the default. None of the Supreme Court cases has addressed the question of what standard applies in this context. Indeed, as the majority notes, the Court stated in Reed that “[t]he situation of of a defendant representing himself ... is not presented in this case and we express no view on the applicability of the cause-and-prejudice requirement in that context.” 468 U.S. at 11 n. 7, 104 S.Ct. at 2908 n. 7 (citation omitted).

Moreover, the Supreme Court’s language in Engle and Murray strongly suggests that those decisions are applicable only to defaults involving counsel. In Engle, the Court justified the stringent enforcement of the contemporaneous objection requirement because “[t]he defendant’s counsel ... has detracted from the trial’s significance by neglecting to raise a claim in that forum.” 456 U.S. at 128-29 , 102 S.Ct. at 1572 . See also id. at 129 n. 34, 102 S.Ct. at 1572 n. 34 (counsel’s default may stem from simple ignorance, the pressures of trial, or sandbagging). And in Murray , the Court stated the issue as whether “cause” is shown where “competent defense counsel inadvertently failed to raise the substantive claim of error____” 106 S.Ct. at 2642 (emphasis added). The Court described the Wainwright holding itself as “[a]t a minimum ... plainly implying] that default ... by counsel ... would ... bind the habeas petitioner even if he had not personally waived that claim.” Id. at 2644 (emphasis added). The Court reasoned that “[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective,” he must “bear the risk of attorney error that results in procedural default.” id. at 2645-46 (emphasis added). It focused on “counsel’s breach,” the costs of “attorney error,” sandbagging by “appellate counsel,” “counsel’s state of mind in failing to raise a claim,” and “holdpng] defendants to the errors of their attorneys.” Id. at 2647. The Court then reaffirmed Reed’s holding that “counsel’s failure to raise a particular claim ... on appeal” was governed by the “cause and prejudice.” Id. at 2648 (emphasis added). It thus is clear that the Supreme Court in these cases simply did not consider, let alone decide, what standard applies to a default occurring while the defendant was acting pro se.

Furthermore, I agree with the Third Circuit’s analysis in Diggs v. United States, 740 F.2d 239 (3d Cir.1984), in which the court, notwithstanding the majority’s assertion to the contrary, did decide whether *914 the “cause and prejudice” standard applies to a pro se petitioner’s procedural default. After noting that Wainwright did not overrule Fay’s application to a failure to appeal, the court stated: “Moreover, it would appear that application of the ‘cause’ prong of the cause and prejudice test has little meaning in the context of post-trial proceedings involving indigent litigants because they normally will be without the assistance of those schooled in the technicalities of our appellate procedures.” Id. at 244-45 (footnote omitted). The majority ignores this analysis, and in refusing to distinguish between the errors of defendants and those of their counsel, instead relies on what it perceives as “the clear trend toward applying [Wainwright ] and the apparent abandonment of Fay’s deliberate bypass standard.” I believe that this reliance is misplaced because as I have demonstrated, the “trend” is not clear, and the “abandonment” is not apparent. Accordingly, I would hold that regardless of the general rule, the “deliberate by-pass” standard applies to a pro se petitioner’s failure to appeal.

B. Application of “Cause and Prejudice” Standard

Even assuming that the “cause and prejudice” standard applies, I would reach the merits of Hughes’s petition given the facts before us. There can be no doubt that Hughes has shown “prejudice” within the meaning of Wainwright. Hughes now is serving a 25-year prison sentence when he could have been serving a 15-year sentence. The prosecutor’s failure to recommend unequivocally the shorter sentence, and his emphasis on certain aggravating circumstances, could well have resulted in the longer sentence.

Whether Hughes has shown “cause” for his default is a more difficult question. As the majority explains, Hughes claims that he is illiterate, and that he was incapable of perfecting an appeal or even understanding that he could take an appeal. 3 The inmate who aided Hughes in preparing his state post-conviction application was released after the state judge who sentenced Hughes denied the application. Without the aid of this inmate, Hughes could not even gain access to the prison’s law library due to the prison’s policy of granting access only upon written request.

I believe that these facts are sufficient to establish cause for Hughes’s failure to appeal. As the majority notes, the Supreme Court has not given precise definition to the term “cause,” and has stated that the requirement “may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel____” Reed, 468 U.S. at 14 , 104 S.Ct. at 2909 . However, contrary to the majority’s suggestion that only “the failure to raise a constitutional issue reasonably unknown at the time of default” satisfies this standard, “Reed specifically left open for future decisions what other situations might constitute cause.” Middleton v. Cupp, 768 F.2d 1083, 1087 (9th Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 3336 , 92 L.Ed.2d 741 (1986). Furthermore, none of the Supreme Court cases has discussed the procedural default rules as applied to a defendant acting pro se at the time of the default. Interestingly enough, in Strickland v. Marshall, 632 F.Supp. 590, 599 (S.D.Ohio), the case the majority cites as the only one “squarely addressing” this context, the district court held that “a petitioner who is representing himself on appeal because he is no longer entitled to the assistance of counsel should not be held to a stringent definition of ‘cause.’ ” It is not clear to me why the majority ignores this part of Strickland , and adopts only its reasoning regarding the decision to apply the “cause and prejudice” standard instead of the “deliberate by-pass” standard. I believe that if we adopt the “cause and prejudice” standard, we should also adopt the Strickland approach to the “cause” requirement. Thus, we generally should *915 allow illiterate petitioners who were acting pro se at the time of default to have their habeas claims heard notwithstanding their failure to appeal. Cf. Diggs, 740 F.2d at 245 n. 8 (lack of representation arguably constitutes cause). This approach would be in accord with the Supreme Court’s pronouncement that ineffective assistance of counsel is cause for a procedural default. Murray, 106 S.Ct. at 2646 .

I reject the majority’s suggestion that illiterate petitioners will purposely wait until the jurisdictional period has lapsed and then proceed directly to federal court borders. I seriously doubt that an illiterate petitioner would be aware of, let alone understand, the intricacies of the exhaustion and procedural default doctrines, which we ourselves often have difficulty understanding, to a degree necessary to formulate the scheme the majority seeks to prevent. Cf . Diggs, 740 F.2d at 244-45 (“cause” prong inapplicable to pro se petitioners who normally are without aid of those schooled in technicalities of appellate process). That there may be isolated abuses of the process in the manner that the majority suggests does not justify the adoption of a per se rule that illiteracy cannot be cause for failing to appeal. Rather, I would proceed on the assumption, unless the state shows otherwise, that an illiterate petitioner who was acting pro se at the time of default has cause for the default. This approach would not require us to grant a vast number of habeas petitions. It merely would enable us to reach the merits of those petitions, a consequence I hardly see as dire. Thus, I believe that Hughes has shown “cause and prejudice” for his default, and that we should reach the merits of his claim.

C. Merits 4

In Santobello v. New York, 404 U.S. 257 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971), the Supreme Court held that prosecutors must keep plea bargains. In Santobello , the state prosecutor’s office had agreed to make no sentencing recommendation, but the prosecutor who appeared at sentencing, unaware of the agreement, recommended the maximum. The Supreme Court reversed, holding that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262 , 92 S.Ct. at 499 . Thus, in Santobello , the prosecutor’s actions required reversal even though the sentencing judge stated that he was not influenced by the recommendation.

In light of Santobello , the district court erred in finding that the prosecution did not breach Hughes’s plea agreement. The prosecutor not only failed to support the recommendation by giving reasons why it was appropriate, he openly encouraged the court to disregard the agreement by prefacing his remarks with reasons why the court should give Hughes the maximum, and stating that in his judgment, the court should give Hughes the maximum. Thus, the prosecutor breached the agreement because he did not merely leave “ ‘an impression with the court of less-than-enthusiastic support for leniency,’ ” but openly “expressed personal reservations about the agreement to which the Government had committed itself.” United States v. Ben-chimol, 471 U.S. 453 , 105 S.Ct. 2103, 2105 , 85 L.Ed.2d 462 (1985) (per curiam). See United States v. Grandinetti, 564 F.2d 723, 727 (5th Cir.1977) (breach where prosecutor in effect argues against agreement); United States v. Brown, 500 F.2d 375, 377 (6th Cir.1974) (breach where prosecutor expresses reservations about agreement). Under these circumstances, we should vacate Hughes’s sentence, and remand the case to Idaho state court for resentencing in light of a recommendation complying with the original agreement. Accordingly, I respectfully dissent.

. Given its resolution of the procedural default issue, the majority does not detail the facts underlying Hughes's claim for relief. Therefore, I briefly set them forth to aid in understanding this case.

. Indeed, in this regard, the state has failed to make any showing whatsoever. I disagree with the majority’s assertion that the state clearly raised the issue below. The state’s answer refers only to whether Hughes exhausted his remedies. Nowhere does it mention procedural default, or discuss whether Hughes has reason for his default. As we have recognized, however, exhaustion and procedural default are separate issues.

Matias v. Oshiro, 683 F.2d 318, 321 (9th Cir.1982) (citing Engle v. Isaac, 456 U.S. 107 , 125 n. 28, 102 S.Ct. 1558, 1570 , 71 L.Ed.2d 783 n. 28 (1982) ("problem of waiver is separate from the question of whether a state prisoner has exhausted state remedies")). Thus, the state’s answer, which speaks only of exhaustion, simply does not raise the question of procedural default.

I also believe that the state has failed to preserve this issue on appeal. ■ The state’s mere assertion in its review of the facts that it “did not waive the issue of exhaustion” is insufficient to make procedural default an issue on appeal. *911 As I have already noted, exhaustion and procedural default are not the same issue. Moreover, in its brief, the state does not ask us to dispose of Hughes’s petition on procedural grounds. Rather, it devotes its entire brief to a discussion of the merits. The state does not discuss whether Fay or Wainwright applies because it does not see procedural default as an issue in this case. It is unclear to me why the majority insists that it is. If we so strictly require a pro se defendant to adhere to a state’s procedural rule, we also should strictly require the state to attend to the distinction between exhaustion and procedural default, and to adhere to the requirement that it raise the latter issue separately. Given the facts as I have detailed them, I would And that the state waived the issue of procedural default.

. The state makes no attempt to contradict Hughes’s claims in this regard, and we have no reason to doubt that they are true.

. Because of my resolution of the procedural default issue, I address the merits of Hughes’s petition.