(concurring):
Although I concur in the result reached by the majority in this troubling case, I think it appropriate to record some further observations.
I am concerned first of all with the attitude the state has displayed in this proceeding toward the requirement that an applicant for federal habeas corpus exhaust his remedies in the state courts. That statutory requirement is not merely ■a formal admonition. It goes to the heart of the federal-state distribution of power and affords a state court system the chance to keep its own house in order before a federal court steps in to rule on a federal constitutional claim. In this court, after a request from the panel for further briefing on the exhaustion question,1 the state now suggests *1320that means were available to secure Arto Williams’s testimony for the coram nobis proceeding in the state court. Yet, before Judge Curtin, the state in effect stipulated that state remedies had been exhausted, as Judge Mulligan’s thorough opinion points out in footnote 1. More significantly, in the coram nobis proceeding, the District Attorney apparently argued that various suggested methods to obtain the testimony of Williams were unavailable. The effect of the state’s change in position, if accepted, would thus be first to deny a state remedy and then to frustrate federal relief.
This manipulation of the exhaustion doctrine is particularly disturbing because this is precisely the kind of case that has provoked frequent admonitions from state prosecutors to the federal courts not to be quick to “interfere” with the state criminal process. Justifiably or not, Sostre has become to some a symbol of the inequities of our criminal justice system.2 The record shows that in 1967 the Buffalo police were out to “get” Sostre because they thought he was the principal instigator of the then recent riot in the black ghetto of the city. Moreover, his original sentence was a savage one: 25 to 30 years on the conviction now under attack for the sale of one packet of heroin, five to ten years for his fracas with the arresting officers, one year for possession of the heroin packets, and 30 days for contempt of court, all to be served consecutively. This was virtually a life sentence for a man then in his mid-forties.3 Furthermore, Sostre has remained a marked man in prison. From prior proceedings before us, we know that he was kept in solitary confinement under outrageous conditions for over a year and was then harshly punished again for having “dust” on his cell bars.4
In a case stirring such strong feelings, a claim that the conviction was based on perjurious testimony goes to the very heart of the criminal process, which, to be effective, must ultimately rest upon the confidence of the citizenry that it is fair and thorough. How appropriate, then, that a searching inquiry into a possibly tainted conviction should have been made, in the first instance, through the state judicial process, since its integrity was being challenged. Arto Williams was located in May 1973 in custody in California. One wonders why it was impossible then for New York State officials to arrange with California officials to have Williams transported to New York for a reopened hearing on the cor-am nobis petition.
Nevertheless, I agree with the majority that it would be an unfortunate exercise in futility to dismiss now for failure to exhaust. There was substantial doubt about the technical availability of compulsory state process to secure Williams’s testimony and, as the majority points out, counsel for Sostre now indicates “his lack of knowledge of Williams’s present whereabouts.” Under the circumstances, sound judicial administration suggests upholding Judge Curtin’s assumption of jurisdiction.
I am concerned also in this case because the record is unfortunately incomplete in a number of respects which bear on whether Williams told the truth in 1973 when he exonerated Sostre or in 1968 when he implicated him. For ex*1321ample, one of the key documents before Judge Curtin was an affidavit of Williams, dated April 8, 1971, in which he swears that he framed Sostre. That document states that before Williams decided to tell “the truth” he had long discussions with Hollis Candy Latson, the coordinator of Tuum Est, and that Latson wrote to Judge Motley of the United States District Court for the Southern District of New York on March 26, 1971, telling her of Williams’s decision to recant. Was there such a letter from Lat-son? Who was Latson? Was he a person who might be particularly believable because of his background? What did Williams say to him prior to his recantation? Was Latson available as a witness? Another witness uncalled at the habeas hearing before Judge Curtin was Detective Gristmacher, who was clearly the prime mover in enlisting Williams as an informer, and who continued to look out for Williams and even used him to make another buy. Apparently, the state did not call Gristmacher because, according to Sostre’s own affidavit in support of the petition, Gristmacher “was fired from the police force on March 15, 1972 for appropriating 5 ounces of heroin from the evidence locker of Police Headquarters, and refusing to cooperate with the Federal authorities in regards to the stolen heroin.” If this allegation is accurate, Sostre’s claim that this occurrence impeaches Gristmacher’s credibility would appear to be an understatement.
The case thus presents serious procedural and factual questions. But while these matters are not free from doubt, the issue before the federal district court was whether Sostre had been denied due process because of the alleged perjury of Williams. The burden of. proof in this post-conviction proceeding was on Sostre. Appellant has had his day in court on his constitutional claim before an experienced and fair federal trial judge. The crucial fact is that Judge Curtin heard Williams testify and simply did not believe his story. After long and careful review of the record, I cannot say that Judge Curtin’s decision was clearly erroneous. Accordingly, I concur in the af-firmance of the order of the district court.
. In post-argument letters, the parties dispute the applicability of N.Y.Crim.Proc.Law § 650.-20 (McKinney 1971) (securing attendance as witness of prisoner confined in another jurisdiction), N.Y.Crim.Proc.Law § 680.10 (examination of witness on commission), and N.Y. Crim.Proc.Law § 640.10(3) (Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings). The key question, apparently decided against Sostre by the state coram nobis court and not appealed, is whether these procedures are available in a post-conviction proceeding.
. See, e. g., V. Copeland, The Crime of Martin Sostre (1970); Schwartz, A Comment on Sostre v. McGinnis, 21 Buff.L.Rev. 775, 775-76 (1972). In addition to the landmark case of Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) (en banc), cert. denied, 405 U.S. 978, 92 S.ct. 1190, 31 L.Ed.2d 254 (1972), Sostre has been a plaintiff in a number of other actions seeking to establish the rights of prisoners: Sostre v. Otis, 330 F.Supp. 941 (S.D.N.Y.1971) (Mansfield, X); Sostre v. McGinnis, 334 F.2d 906 (2d Cir.), cert. denied, 379 U.S. 892, 85 S.Ct. 168, 13 L.Ed.2d 96 (1964); Pierce v. La Vallee, 293 F.2d 233 (2d Cir. 1961), on remand, 212 F.Supp. 865 (N.D.N.Y.1962), aff’d, 319 F.2d 844 (2d Cir.), cert. denied, 374 U.S. 850, 83 S.ct. 1913, 10 L.Ed.2d 1070 (1963).
. The Supreme Court, Appellate Division, Fourth Department, modified the sentences so that they run concurrently. 42 A.D.2d 1044, 348 N.Y.S.2d 760 (1973).
. Sostre v. McGinnis, supra, 442 F.2d at 187 n. 8.