Biggs, Freedman, and Van Dusen, Circuit Judges. Hastie, Chief Judge, and Biggs, Kalodner, Freedman, Seitz, Van Dusen, Aldisert and Stahl, Circuit Judges. Biggs, Circuit Judge (dissenting).
This unusual habeas corpus case is before the court en banc on reargument of a second appeal. The question is whether the District Court on remand after the first appeal was correct in refusing to decide the merits of petitioner's claim that his confessions were involuntary because it should be determined by the State courts.
In the earlier appeal we held that the District Court had correctly decided that petitioner's consent had rendered admissible the items of evidence seized on a warrantless search. We went on to hold, however, that the petition had adequately raised another issue which the District Court had not passed on, i. e., whether the admission of petitioner's confessions amounted to a denial of his constitutional rights. We therefore declared that the District Court "was obligated to decide [the merits of this question] * * * unless there had been an effective waiver of whatever constitutional claim the defendant might have made."*fn1 Accordingly, we vacated the judgment and remanded the case for further proceedings consistent with our opinion, with this language of remand:
"We think the issue of waiver must be decided, after opportunity is afforded to the parties to supplement the record on this question, if they so desire. And if the court finds no waiver of constitutional right to challenge the admission of the petitioner's statements it will then be necessary to consider and decide whether due process of law was denied by the use of this evidence against the accused."*fn2
On remand the District Court held a full hearing and took testimony on both the question of waiver and the substantive issue of the voluntariness of the confessions. The Commonwealth presented no evidence on either issue, although, of course, it had the opportunity to do so. The District Court found that petitioner had not waived the right to challenge the admission of the confessions. It then went on to hold, however, largely because of our decision in United States ex rel. Singer v. Myers, 384 F.2d 279 (3 Cir. 1967), which was handed down after the hearing and filing of briefs, that the voluntariness of petitioner's confessions should be decided by the State courts. United States ex rel. Gockley v. Myers, 276 F. Supp. 748 (E.D.Pa.1967).*fn3 From this decision on remand petitioner has taken the present appeal. It thus becomes necessary to review the history of the case in both the State and Federal courts.
Petitioner was convicted of murder in the second degree in the Court of Oyer and Terminer at Berks County, Pennsylvania, on September 27, 1961. While his motions for new trial and arrest of judgment were pending in the State trial court, he applied for a writ of habeas corpus to the United States District Court for the Eastern District of Pennsylvania.*fn4 The District Court denied his petition for failure to exhaust his State remedies. Thereafter the State trial court denied the motions for new trial and arrest of judgment, and on April 17, 1963, the Supreme Court of Pennsylvania affirmed his conviction. Com. v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963).
On August 7, 1964, almost five years ago, the present petition for habeas corpus was filed in the District Court. This pro se petition was denied by the District Court on October 12, 1964.*fn5 At the same time the District Court denied petitioner's requests for the appointment of counsel but shortly thereafter granted a certificate of probable cause for appeal. On petitioner's application we appointed counsel for him on February 19, 1965. For almost a year and a half counsel did nothing on petitioner's behalf, and we therefore vacated his appointment on August 3, 1966 and appointed his present counsel, who has ably and energetically represented him.
The language of our mandate on the first appeal may well be deemed to have required the District Court to decide the substantive question of the voluntariness of the confessions if it decided that the issue had not been waived. Even if the mandate contained any ambiguity, this would certainly have been its reasonable construction, for waiver was merely the threshold question to the issue of voluntariness, and there would have been no reason to require the District Court to decide the preliminary question of waiver if even in the event of success, petitioner was nevertheless to be remitted to seek relief in the State court. The District Court, however, evidently believed that our intervening decision in Singer compelled it to refrain from deciding the substantive question of voluntariness, even after it had decided the preliminary question of waiver in petitioner's favor. Our Singer decision, however, was reversed by the Supreme Court, Singer v. Myers, 392 U.S. 647, 88 S. Ct. 2307, 20 L. Ed. 2d 1358 (1968), in a per curiam opinion whose brevity has given rise to speculations on its meaning.
Petitioner urges that the question of the voluntariness of the confessions actually was considered on his appeal from his conviction to the Supreme Court of Pennsylvania, and that under Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953), there was therefore no need to seek post-conviction relief in the State courts. The discussion to which we are referred*fn6 is not sufficient, however, to justify such an interpretation. Indeed it would have been futile for petitioner to have raised the question on his direct appeal to the State Supreme Court for the jury had already resolved against him the factual question of the voluntariness of the confessions, and Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), requiring a preliminary decision on voluntariness by the judge, lay in the future. Nor need we accept petitioner's claim that the Commonwealth's brief after the remand in the District Court conceded the involuntary nature of the confessions and his right to a new trial in the event there was a finding of no waiver.*fn7
The requirement that a habeas corpus applicant exhaust his State court remedies, now embodied in 28 U.S.C. § 2254, is a principle of comity and does not rise to jurisdictional proportions. If the case is sufficiently exceptional the doctrine need not be rigidly followed to the point of inflicting manifest injustice. See Fay v. Noia, 372 U.S. 391, 420-441, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Ex Parte Hawk, 321 U.S. 114, 116-117, 64 S. Ct. 448, 88 L. Ed. 572 (1944). See also Beto v. Martin, 396 F.2d 432, 434 (5 Cir. 1968).
Section 2254 does not require a Federal court to split off the issue of the voluntariness of a confession after it has gone through the process of deciding whether there was a waiver of the right to make the claim in the Federal courts. The Federal court might in the first instance have remitted petitioner to the State courts. But this was not done. The Federal courts decided the ...