Circuit Judge (concurring):
I agree and join in all of the opinion, with two exceptions.
First, I cannot find “obviously without merit” appellant Smith’s contention that New York Mental Hygiene Law § 208, subd. 5 contemplates and permits the unconstitutional punishment of his condition of narcotics addiction, proscribed by Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), by denying only to addicts the possibility of a suspended sentence. Although the majority recognizes and properly applies the Robinson principle to Smith’s claim that he may not be punished for narcotics-related offenses, it ignores Robinson in discussing the chal*962lenge to § 208, subd. 5 and relies instead on the unassailable proposition that the distinction made in that provision is not “irrational.” Neither would it be “irrational” to punish addicts in the first instance because of their addiction on the very ground cited by the majority here, that addicts are far more crime-prone as a class than are others. But due process does not tolerate punishing people just because they are afflicted with insanity, feeblemindedness, or addiction. This is the teaching of Robinson. I cannot see how the practice sanctioned by § 208, subd. 5 is distinguishable from the practice proscribed by Robinson. Perhaps members of a three-judge district court would be able to thread their way past this objection, but it surely raises a “substantial” issue.
I concur with the result reached by the majority, however, because I believe that these applications are essentially habeas corpus petitions, requiring exhaustion of state remedies, 28 U.S.C. § 2254(b). Each petitioner is “‘challenging the validity of his sentence with the ultimate object of obtaining release’ from prison, Hancock v. Avery, 301 F. Supp. 786, 791 (M.D.Tenn.1969),” Sostre v. McGinnis, 442 F.2d 178, 182 (2d Cir. 1971) (holding exhaustion unnecessary as to complaint directed against internal prison discipline). Petitioners are not seeking release only incidentally to a claim that actions of prison, parole, or other correctional authorities are illegal. See Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); Hancock v. Avery, 301 F.Supp. 786 (M.D.Tenn.1969); Edwards v. Schmidt, 321 F.Supp. 68 (W.D.Wis.1971). It is the historic and essential function of the habeas corpus petition to afford relief from confinement unlawfully imposed. See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1042-45. Thus, there is no reason for denying their natural meaning to the words of 28 U.S.C. § 2254, that a writ of habeas corpus may be entertained by a federal court “in behalf of a person in custody pursuant to the judgment of a State court * * * on the ground that he is in custody in violation of the Constitution * * *” (emphasis added). Nor is it of any moment that part of the remedy sought by petitioners is not outright freedom from all confinement, but rather transfer from a state penal institution to another institution for treatment of their addiction. Outright freedom is not the only remedy available by a writ of habeas corpus. We know, for example, that the writ has been allowed to test the validity of one of several consecutive sentences, not yet being served where the petitioner’s eligibility for parole turned on the outcome, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). The Supreme Court long ago ruled that a petitioner seeking release because he had been confined to the wrong penitentiary could bring his claim via habeas. In re Bonner, 151 U. S. 242, 14 S.Ct. 323, 38 L.Ed. 149 (1894).
Moreover, the exhaustion requirement “preserves orderly administration of state judicial business, preventing the interruption of state adjudication by federal habeas proceedings” and affords to state courts primary responsibility for conforming their own proceedings to constitutional strictures. Developments in the Law — Federal Habeas Corpus, supra, at 1094. Unlike a prisoner attacking, for example, a prison disciplinary rule, the petitioner who challenges the validity of the judicial process by which he was incarcerated need not initiate a collateral state judicial proceeding to raise his claim. He may bring it in the very judicial proceeding leading to his confinement, although he may also resort to state collateral attack. The exhaustion requirement encourages the defendant to bring all his claims to the illegality of the initial proceeding leading to his incarceration in that very proceeding, and thus promotes judicial economy and efficiency. The exhaustion requirement is also justified by other considerations of federal-state comity, id. 1094-05, each of which would be served by regarding the present applications as habeas corpus petitions.
*963Of course, the one claim that I believe may have merit, Smith’s objection to § 208, subd. 5, is a classic instance of a suit appropriately brought by habeas corpus, and because Smith has not litigated his claim in the New York courts, I would deny his application for a three-judge court. But the exhaustion requirement also supplies an alternative ground for the result reached by the majority on the merits of petitioners’ other arguments, with which result and reasoning I am in full accord.