UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 9, 1972; As Amended March 22, 1972.
UNITED STATES OF AMERICA EX REL. THOMAS HOYT WINSETT, APPELLANT,
RAYMOND W. ANDERSON, WARDEN, NEW CASTLE CORRECTIONAL INSTITUTION
Biggs and Van Dusen, Circuit Judges, and Green, District Judge.
Author: Per Curiam
Opinion OF THE COURT
This is an appeal from a December 29, 1970, order of the United States District Court for the District of Delaware, denying a petition for a writ of habeas corpus pending determination by the state courts of the question whether petitioner's constitutional rights were violated by the introduction into evidence in his 1964 state trial of the extrajudicial statements of petitioner's co-defendants, who were not subject to cross-examination.*fn1 This question is significant because in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the Supreme Court held that at least in the circumstances of that case*fn2 the introduction into a joint trial of the extrajudicial statements of a co-defendant violates the confrontation clause of the Sixth Amendment, notwithstanding a limiting jury instruction, and in Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968), the Bruton principle was found to be retroactively applicable to state court convictions through the Fourteenth Amendment. Winsett argues, however, that the district court erred in requiring him to exhaust conceded state court remedies,*fn3 because he contends that language in the opinion of the Delaware Supreme Court affirming his conviction, State v. Weekley, 222 A.2d 781, 789 (Del.1966) indicates that recourse to the state court based upon the Bruton doctrine would be futile. We find this argument unpersuasive, as did the district court in a carefully considered opinion. See United States ex rel. Winsett v. Anderson, 320 F. Supp. 784 (D.Del.1970). At the very least, the opinion of the Delaware Supreme Court in 1966 does not preclude state court consideration of the application of the Bruton doctrine, announced some 20 months later. Thus, we affirm the order of the district court requiring the exhaustion of state court remedies on this issue. See United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969); cf. Brown v. State of New Jersey, 395 F.2d 917 (3d Cir. 1968).
Since the district court will have to consider at some time whether Winsett has exhausted his state court remedies as to the other issues raised in his petition for writ of habeas corpus,*fn4 it would appear in the interests of judicial economy for the district court to determine, before any further consideration of the case by the state courts, whether under the circumstances paragraphs 2 and 3 of the order should be modified because of the congressional requirement that Winsett exhaust his state court remedies with respect to each of these other issues as well.*fn5 This procedure will minimize the risk of piecemeal consideration of Winsett's case by the state courts.
The decision of the district court will be affirmed, subject to the above-mentioned direction that the district court make findings on the exhaustion of state remedies as to the other issues raised in Winsett's petition filed in Habeas Corpus No. 1020.