Russell D. Losh v. Arthur L. McKenzie

Summary

The court held that a prisoner’s failure to raise grounds in earlier pro se habeas petitions does not establish waiver when the prisoner has never had appointed counsel or an omnibus evidentiary hearing. Res judicata and waiver principles may be applied only after the prisoner has had a full and fair opportunity, with counsel, to litigate known or reasonably discoverable collateral claims. The court therefore reversed the summary dismissal and remanded for a full evidentiary hearing.