dissenting.
In this circuit, a habeas corpus petitioner may be granted bail pending disposition of his petition where “extraordinary circumstances” are present. Lucas v. Hadden, 790 F.2d 365 (3d Cir.1986). Here, the district court based its finding of extraordinary circumstances in part on a finding of probable innocence.1 Because I believe a finding of probable innocence should override usual considerations of comity even when there is a lack of exhaustion, I respectfully dissent.
The majority “believe[s] that an analysis of Lucas leads” to the conclusion that no extraordinary circumstances justifying the district court’s grant of bail are present here. Majority at 1241-42. I cannot agree. Landano, unlike Lucas, raises federal constitutional claims in his habeas petition. More importantly, the district court found, based on newly discovered evidence, that Landano “may be innocent of the charges for which he was convicted” and has “a likelihood approaching certainty of success on the merits.” Landano v. Rafferty, 782 F.Supp. 986, 993 (D.N.J.1992).
Lucas involved a petitioner who alleged that upon his release on parole from federal prison, he was wrongly re-committed to state prison to serve a term that had run concurrently with his federal term. He “asserted no constitutional violation nor did he identify any violation of federal law that was alleged to be the cause of his confinement.” Lucas, 790 F.2d at 366. Furthermore, Lucas, who had pleaded guilty to federal narcotics violations, made no showing of probable innocence. In that context, we stated: “We doubt that it is appropriate to grant bail prior to ruling on a state habeas petition solely on the ground that there is a high likelihood of success on the merits, especially absent exhaustion of state remedies.” Id. at 367.
The circumstances here are fundamentally different from those in Lucas. Landano alleges that his conviction was unconstitutionally obtained through coerced testimony and the State’s suppression of exculpatory evidence, and has convinced the district court of his probable innocence.
The Supreme Court has recognized a crucial distinction in its habeas corpus jurisprudence between a likelihood of success on the merits and a probability that a constitutional violation has resulted in the conviction of an innocent person. Generally, petitioners are denied federal habeas relief in cases of procedural default,2 abuse of the writ,3 or failure to develop a claim in state-court proceedings,4 unless they can show cause and prejudice. However, these failings are excused in those “extraordi*1243nary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). The Supreme Court’s “probable innocence” or “miscarriage of justice” exception applies where a petitioner “ ‘established] that under the probative evidence he has a colorable claim of factual innocence,’ ” i.e., where there is “ ‘a fair probability that, in light of all the evidence, including any alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of the facts would have entertained a reasonable doubt of his guilt.’ ” Sawyer v. Whitley, — U.S. -, fn. 5, 112 S.Ct. 2514, 2519 fn. 5, 120 L.Ed.2d 269 (1992) (quoting Kuhlmann v.. Wilson, 477 U.S. 436, 454-55, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986); other citation omitted). .Because the district court here found “a substantial probability ... that the jury’s verdict would have differed had [the suppressed evidence] been brought out at trial,” and that Landano “may be innocent of the charges for which he was convicted,” see supra note 1, the probable innocence exception should apply.
The majority distinguishes the Supreme Court’s probable innocence cases on the ground that those cases address “the federal court’s right to overlook a procedural default, not a failure to exhaust state remedies.” Majority at 1241. I believe this distinction is immaterial.
The probable innocence exception to the cause and prejudice requirement embodies the Court’s belief that “the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’ ” Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982)). Yet, the majority says that “[w]hen the State has not completed its review of the petitioner’s claims, it is inappropriate for a federal court to reach the merits of petitioner’s case in ruling on a motion for bail.” Majority at 1241. I can discern no reason why comity will not prevent correction of a fundamental miscarriage of justice in the context of procedural default, abuse of the writ, or failure to develop a claim, but will preclude relief absent exhaustion.
Moreover, the relief granted by the district court here poses little threát to comity. The doctrine of comity “ ‘teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.’ ” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). The parties agree, and the district court found, that New Jersey does not provide for bail in cases like this one. See Landano, 782 F.Supp. at 995. Therefore, as the district court noted, there is no “affront to the state courts in this court retaining jurisdiction solely in order to extend bail, since New Jersey courts could not ‘pass upon the matter’ in any case.” Id. Furthermore, because the district court held that Landano had not exhausted his state remedies, and therefore did not grant Landano’s petition for writ of habeas corpus, the New Jersey courts will be afforded the first opportunity to correct their own constitutional errors, if any, as comity requires. In any event, Lucas states that comity must give way under “extraordinary circumstances.”
Although “a preliminary grant of bail is an exceptional form of relief in a habeas corpus proceeding,” Lucas, 790 F.2d at 367, our standard of review is abuse of discretion. I believe the district court did not abuse its discretion in holding that the factors it cited, especially Landano’s probable innocence, justified the grant of bail pending exhaustion of state remedies.
. On July 27, 1989, the district court found that there was a “distinct possibility that [Landano], indeed, may be innocent of the charges for which he was convicted," and that there was “a substantial probability ... that the jury's verdict would have differed had [the suppressed evidence] been brought out at trial.” Landano v. Rafferty, 126 F.R.D. 627, 649, 654 (D.N.J.1989), rev'd on other grounds, 897 F.2d 661 (3d Cir. 1990), cert. denied, - U.S. -, 111 S.Ct. 46, 112 L.Ed.2d 23 (1990). On May 6, 1991, and February 4, 1992, the district court found that Landano "may be innocent of the charges for which he was convicted.” Landano v. Rafferty, Nos. 85-4777, 89-2454, slip op. at 7 (D.N.J. May 6, 1991); Landano v. Rafferty, 782 F.Supp. 986, 993 (D.N.J.1992). The district court is not alone in this view. A judge of this court has stated that "the State's case [against Landano], erected upon a house of cards, has little, if any, credible foundation to it." Landano, 897 F.2d at 685 (Rosenn, J., dissenting). The Landano majority stated that it "joinfed] with the district court in finding Landano’s new allegations deeply troubling,” id. at 675 n. 23, but held that Landano had failed to exhaust his state remedies.
. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Wise v. Fulcomer, 958 F.2d 30 (3d Cir.1992).
. Keeney v. Tamayo-Reyes, — U.S. -, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).