for habeas corpus without prejudice was approved, when, subsequent to the denial of the petition for habeas corpus in the District Court and the filing of an appeal, Nebraska enacted a comprehensive procedure for post conviction relief. The new procedure provided, inter alia, for the appointment of counsel to represent the state prisoner. The habeas applicant in Dabney had not been represented by counsel in a previous petition to the Nebraska state courts.
In Burnside v. Nebraska, 346 F.2d 88 (8th Cir. 1965), a full evidentiary hearing on relator's petition for habeas corpus had been held in the Federal District Court before the effective date of the Nebraska statute, considered in Dabney v. Sigler, supra, providing a postconviction remedy "co-extension with federal habeas corpus." 346 F.2d at 89. Even though an adequate state remedy was thus available where none had been available before, the Court of Appeals concluded that because a full evidentiary hearing had already been held in the District Court "it would be a waste of judicial time to require the Nebraska courts to re-cover the same ground" in the state courts. 346 F.2d at 89. Hence, the Court proceeded to consider the merits of the petition.
It should be recognized that the result in Payton v. Texas, supra, and Dabney v. Sigler, supra, has been criticized for wasting judicial resources and unfairly postponing relief for the habeas applicant.
In the present case, however, there has not yet been a substantial investment of Federal judicial resources in the consideration of relator's petition; further, if relator's petition is promptly considered by Pennsylvania state courts, he will in no way be prejudiced, nor will consideration of his claim be unfairly delayed. Without holding that 28 U.S.C. § 2254
compels this Court to decline to exercise its jurisdiction for failure to exhaust state remedies, I conclude that dismissal of the present application without prejudice will favor the interest of comity with state courts, without causing a significant sacrifice of judicial economy, or unfairly delaying consideration of petitioner's claim on the merits.
B. STATE RESPONSIBILITY FOR THE DEVELOPMENT AND INTERPRETATION OF CONSTITUTIONAL DOCTRINE.
Another consideration of comity with state courts also supports the dismissal of the present application without prejudice. Constitutional doctrine concerning the appointment and adequacy of counsel for criminal defendants, and also concerning the right to the confrontation of witnesses has undergone important changes, both in principle and in spirit, since the initial decision on relator's application in 1943.
State courts share an equal responsibility with federal courts for the development and evaluation of doctrine relating to the protection of Federal Constitutional guarantees. The state courts of Pennsylvania, therefore, should have the first opportunity to consider the constitutional claims of petitioner in light of the intervening developments in constitutional law since 1943. Brown v. New Jersey, 395 F.2d 917, 920 (3rd Cir. 1968), accord : In re Whittington, 391 U.S. 341, 88 S. Ct. 1507, 20 L. Ed. 2d 625 (1968).
For the foregoing reasons an Order dismissing relator's petition without prejudice will be entered.