On Petition for Rehearing
Cecil, Senior Circuit Judge.This cause is on petition for rehearing of our decision of July 2, 1969, remanding the case to the district court to conduct an evidentiary hearing on the basis that the appellant had exhausted his state remedies.
Appellant’s motion to the Ohio Ninth District Court of Appeals for leave to appeal under Section 2953.05, Revised Code, was denied on November 29, 1967. He did not appeal this denial--by the court of appeals to the Supreme Court of OMo.
Counsel for appellee argue that there is still open to the appellant the remedy of a delayed appeal to the Supreme Court of Ohio under Section 2953.05, Revised Code. Counsel do not state whether tMs potential delayed appeal would be from the order of the Ninth District Court of Appeals of November 29, 1967, denying the motion for leave to appeal or whether it would be a delayed appeal from *107the conviction in the Common Pleas Court of Summit County, Ohio.
"We know of no provision in such a case as this, nor has any been cited to us, for a direct appeal, delayed or otherwise, from the common pleas court to the Supreme Court. Neither are we cited any authority that a delayed appeal may be taken to the Supreme Court from a denial of a delayed appeal by the court of appeals. Section 2953.05, Revised Code, after allowing for a delayed appeal, presumably to the court of appeals, provides,
“An appeal may be taken to the supreme court by giving notice as provided by law and rule of such court within thirty days from the journalization of a judgment or final order of the court of appeals in all cases as provided by law.” (Emphasis added.)
We interpret this to mean that an appeal may be taken to the Supreme Court within thirty days from the jour-nalization of a final order of the court of appeals denying leave for a delayed appeal. We have found no Ohio or Sixth Circuit cases where a delayed appeal was taken to the Supreme Court from a judgment or order of the court of appeals.
Counsel have cited several cases in support of their contention that there is still open to the appellant the remedy of delayed appeal to the Supreme Court of Ohio. None of these cases is applicable to the facts of the case before us. In Rollins v. Haskins, 6 Cir., 348 F. 2d 454, 455, we said:
“Accordingly, even though appeal to the Ohio Court of Appeals as a matter of right is no longer open to bim, there is presently available to appellant the remedy of seeking a delayed appeal to the Ohio Court of Appeals and, should that court reject his delayed appeal, appellant could thereupon appeal such denial to the Supreme Court of Ohio ‘as a matter of right,’ inasmuch as questions arising under both the Constitution of the United States and the Constitution of Ohio are presented.” (Emphasis added.)
It is to be noted that the court decides only that the appellant must avail himself of the remedy of delayed ap*108peal to the court of appeals. On page 456 [of 348 F. 2d], the court attempted to state a general rule applicable to all similar cases. This is dictum and as so often happens when a court attempts to generalize it goes beyond what specific facts warrant. We think what the court was saying was that a delayed appeal to the court of appeals could be appealed to the supreme court as a matter of right if a state or federal constitutional question were involved.
In Gravette v. Maxwell, 6 Cir., 340 F. 2d 95, we held that the appellant had available the procedure for petitioning the Court of Appeals of Cuyahoga County for a delayed appeal. In Bussey v. Maxwell, 6 Cir., 362 F. 2d 973, we merely determined that the appellant raised a new question on appeal that had not been considered in the state courts and that he had a remedy for delayed appeal under Sections 2953.02 and 2953.21 to 2953.24, inclusive, Revised Code. In Click v. State of Ohio, 6 Cir., 319 F. 2d 855, the appellant had a habeas corpus action pending before the Supreme Court of Ohio at the time he filed his petition in the District Court. We held that the failure of the Supreme Court to pass on his case for two months did not constitute an exhaustion of state remedies.
The appellant in the case before us has exhausted his remedy of a delayed appeal to the court of appeals. There is no indication that he intentionally or deliberately bypassed an appeal to the Supreme Court as a tactical or strategic litigation step. Fay v. Noia, 372 U. S. 391, 439, 83 S. Ct. 822, 9 L. ed 2d 837; Anderson v. Nelson, Warden, 390 U. S. 523, 525, 88 S. Ct. 1133, 20 L. ed 2d 81; Warden, Maryland Penitentiary v. Hayden, 387 U. S. 294, 297, 87 S. Ct. 1642, 18 L. Ed. 2d 782, Note 3; Wilson v. Bailey, 375 F. 2d 663, 669 (C. A. 4); Mitchell v. Stephens, 353 F. 2d 129, 140 (C. A. 8). He pursued the inapplicable procedure of filing a petition for habeas corpus in that court. Until the Supreme Court of Ohio interprets Section 2953.05, Revised Code, to allow a delayed appeal from the court of appeals to the Supreme Court we will hold that the last sentence of. that section does not include such an appeal to the Supreme Court. This is an entirely reasonable interpretation. If a *109defendant is permitted to set his dormant case in motion by a delayed appeal to the court of appeals, having been once in default, it would be inexcusable for him to get in default again by not taking a timely appeal to the Supreme Court.
We do not hold, as counsel infer, that an appellant need not avail himself of the Ohio delayed appeal procedure in order to exhaust his state remedies, but hold only that in this case he has exhausted that remedy.
The petition for rehearing is denied.