dissenting:
A prisoner who escapes from incarceration in state A only to be incarcerated for conviction of another crime in state B while still a fugitive from state A makes an instinctively unattractive petitioner for federal habeas relief from the original incarcera*147tion. But aside from the ever-present possibility that notwithstanding the unattractiveness of his self-imposed predicament his habeas challenge could have merit, much more than individual interests are at stake here.
I
This is one of those hard cases that invites the making of bad law — specifically here, bad exhaustion law. With all respect, I think the majority does just that, by beginning and ending its analysis with an ascription of dispositive legal relevance to the earlier escape that I think does not exist. Under the circumstances of this case, the fact of the escape has no more legal relevance to the availability of a federal habeas forum than do any other of the usual run of unsavory events and prior conduct that exist in the backgrounds of many federal habeas petitioners. That is to say, I think it has no legal relevance— whatever the thoughts of just deserts and the like it may inspire.
The only issue raised for us by the district court’s dismissal of Whittlesey’s petition is whether, within controlling legal principles, Whittlesey had exhausted his state remedies. More specifically, it is whether he had “fairly presented” the substance of the claims now sought to be raised in federal habeas so that the Maryland state courts have had the “opportunity” to address the merits of the claims. See Francisco v. Gathright, 419 U.S. 59, 63, 95 S.Ct. 257, 259-60, 42 L.Ed.2d 226 (1974) (per curiam); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408-09, 30 L.Ed.2d 418 (1971) (per curiam). It is undisputed that Whittlesey had complied with state procedures by twice presenting the same claims he now seeks to present in his federal habeas petition to the Circuit Court for Baltimore County. Each petition was dismissed without prejudice, and his application for leave to appeal the second dismissal was denied by the highest Maryland court with jurisdiction over such an appeal. See Md. [Cts. & Jud.Proc.] Code Ann. § 12-202(1) (1989). By any account, Whitt-lesey has properly “presented” these claims to the state courts. The mere fact that those courts have declined to address their merits does not preclude federal habe-as relief. See Wilwording, 404 U.S. at 250, 92 S.Ct. at 407-08.
Neither, on the present record, could it be concluded that the state courts nonetheless have had no “opportunity” to address the merits of the claims. The grounds given by the state court for failing to do so — that Whittlesey could not personally appear to prosecute his claims — cannot suffice for the purpose. The state obviously could have imposed conditions upon the way in which Whittlesey could prosecute his claims while incarcerated in Florida— whether by affidavit, depositions, or other means not requiring his personal appearance — but so far as the record reveals, no such proffer was made nor any such possibility considered. See Cook v. Florida Parole and Probation Comm’n, 749 F.2d 678, 680 (11th Cir.1985) (per curiam); cf. Price v. Johnston, 334 U.S. 266, 285-86, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948) (incarceration a valid basis for qualifying the right personally to plead and manage one’s own cause in federal court); Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 111 (4th Cir.1988) (alternatives to personal appearance by incarcerated litigant in federal action discussed). Under the circumstances, the foregoing of a properly presented opportunity to consider the claims on any basis cannot be treated for exhaustion purposes as the absence of any opportunity. The obvious question is: “What else could the petitioner do?” And the answer, “Nothing,” as obviously satisfies the ultimate concerns of comity underlying the exhaustion requirement.
As this indicates, the fact that the petitioner happens earlier to have escaped from his Maryland incarceration has no legal relevance to the concerns of comity— hence the requirements of exhaustion— that were the sole basis upon which he was denied a federal habeas forum. Neither of the bases upon which the fact of his escape is relied upon to deny him this forum has any merit.
First off, the escape has no bearing upon the threshold requirement that to seek ha-beas relief one must be “in custody” with respect to the conviction he seeks to chai-*148lenge. One on “escape status” obviously cannot be “in custody” for this purpose, but under the circumstances of this case, Whittlesey, though an “escapee,” is not now “on escape status” in relation to the Maryland conviction. Instead, he is under a Maryland detainer respecting that conviction while incarcerated in a Florida prison. In this situation, the Florida authorities hold him as an agent for the state of Maryland, and he is thereby “in custody” under 28 U.S.C. § 2241(c)(3) for purposes of challenging the Maryland conviction. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489 n. 4, 93 S.Ct. 1123, 1126 n. 4, 35 L.Ed.2d 443 (1973); see also Maleng v. Cook, — U.S. -, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989) (per curiam).
Neither is he in the situation of one who has escaped and remains free from custody during the pendency of the very judicial proceeding which he seeks to invoke. As the majority points out, in that situation courts properly may decline to entertain the proceedings while the petitioner for relief remains at large. See, e.g., Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975) (per curiam); Feigley v. Fulcomer, 833 F.2d 29, 36 (3d Cir.1987); see also United States v. Snow, 748 F.2d 928, 930 (4th Cir.1984) (noting that while review not technically foreclosed it may properly be withheld). But that simply is not this situation, and it does not have the aspects that perfectly justify a court’s declining to exercise a jurisdiction invoked before an escape has occurred. The majority’s attempt to depict Whittlesey as one who seeks to realize a preferred position vis-a-vis one who escapes while an appeal is pending simply does not wash as a logical proposition.
II
My view that Whittlesey has, on the facts of this case, exhausted the remedies available to him in Maryland’s courts, see 28 U.S.C. § 2254(b), is supported by the decisions of other courts, including the Supreme Court. The Supreme Court dealt directly with exhaustion in this context in Braden. Braden was incarcerated in Alabama on convictions for crimes he committed after escaping from custody while awaiting trial in Kentucky. When he presented his claim of denial of the right to a speedy trial to Kentucky’s courts, the state courts rejected his claim, “apparently on the ground that since he had once escaped from custody the Commonwealth should not be obligated to incur the risk of another escape by returning him for trial.” Braden, 410 U.S. at 491, 93 S.Ct. at 1128. On these facts, the Court held that Braden had “exhausted all available state remedies,” concluding that the “fundamental interests underlying the exhaustion doctrine” were “fully satisfied.” Id. at 489, 491, 93 S.Ct. at 1127, 1128.1
United States ex rel. Smith v. Jackson, 234 F.2d 742 (2d Cir.1956), also provides persuasive and direct support. In Jackson, the petitioner was originally convicted in Virginia, but escaped. He was convicted as a second felony offender and incarcerated in New York after he was apprehended in that state. He sought to challenge the Virginia conviction, but the Virginia courts dismissed his petitions for post-conviction relief because Jackson was a fugitive from Virginia justice and the courts had no juris*149diction over him. 234 F.2d at 746. The Second Circuit held that Jackson had a right to a federal habeas forum to hear his constitutional claims, explicitly rejecting the argument raised by the respondent in that case, and by the respondent here, that the petitioner’s escape after his conviction, but while no court proceedings were pending, should preclude his right to all post-conviction relief until he could return to state court. Id. at 748.2
III
A final word needs to be said about the majority’s rejection of Whittlesey’s argument that the futility exception, see 28 U.S.C. § 2254(b), provides a basis for habe-as jurisdiction. The majority rightly notes that Whittlesey failed to seek direct state appellate review or post-conviction relief prior to his escape. Whittlesey now contends, however, as part of his claim that he was denied effective assistance of counsel, that he instructed his attorney to file an appeal, and the attorney agreed, but never filed the appeal. I point this out not to imply that Whittlesey’s contention should be believed, but only because the validity of that contention and Whittlesey’s other claims will never be known if he is denied a federal habeas forum.
IV
The majority’s analysis does not, and cannot, obscure the reality that as things now stand, although the doors of Maryland’s courts technically remain open to him, Whittlesey could spend the rest of his life in a Florida prison without the opportunity to litigate his constitutional claims.3 That is not right. Whittlesey has exhausted the state remedies that are available to him at the present time. He has the right to a federal habeas forum to present his constitutional claims.
I respectfully dissent.
. The Court also noted that Braden, like Whittle-sey here, had "made no effort to abort a state proceeding or to disrupt the orderly functioning of state judicial processes.” Braden, 410 U.S. at 491, 93 S.Ct. at 1128.
The majority says that Braden's finding of exhaustion is distinguishable because there "the state court did in fact review and reject petitioner’s speedy trial claim on the ground that it did not have to return petitioner for trial and risk his escape for a second time.” At 146 n. 1. The Sixth Circuit panel’s opinion indicates that the state trial court "took no action” on Braden's initial petition, and subsequent petitions were summarily rejected. 454 F.2d 145, 146 (6th Cir.1972). As indicated in text, the Braden majority understood that the state court summarily rejected the claim simply because it thought the earlier escape relieved it of any obligation to return the petitioner for trial and thereby risk another escape. Braden, 410 U.S. at 491, 93 S.Ct. at 1128. The Braden dissent agreed with this view of the record. Id. at 503, 93 S.Ct. at 1133-34. The majority’s conclusion from this that “state court views and findings” were critical to the Braden court’s exhaustion ruling does not follow. Nothing in Braden suggests that effective exhaustion turned on the availability of the state court’s "views and findings” on the merits of the speedy trial claim. In fact, as the *149Court understood the record, none were available.
. Whittlesey is serving a 136-year prison sentence in Florida. The sentencing court for his robbery conviction retained jurisdiction over his case for 42 years, Whittlesey’s actuarial life expectancy at the time he was sentenced, for the purpose of reviewing, and possibly interdicting, any parole release order.
. The argument outlined and rejected by the Jackson court is nearly identical to the reasoning of the majority and the district court in this case.
The argument runs something like this: If [the petitioner] had stayed in Virginia he would have been able to attack his conviction in the Virginia courts, but by becoming a fugitive from justice he made himself ineligible for the Virginia remedies. Thus his inability to assert those remedies is self-imposed and he should not be excused from exhausting them as a prerequisite to federal relief.
Jackson, 234 F.2d at 748.