dissenting.
I would affirm the judgment of the state court. I can find no sound basis for this Court’s not reaching the merits of the questions brought here for review, even though I believe that the writ should not have issued in the first place. Nor do I believe that a federal habeas corpus proceeding should be encouraged, which is the implicit effect of the Court’s “without prejudice” dismissal, or, as my Brother Douglas suggests, that the case should be remanded to the state court for a hearing.
Petitioner was convicted of a particularly brutal murder, committed in the course of an armed robbery. At trial, with advice of counsel, he entered into a written stipulation conceded to be the virtual equivalent of a guilty plea, confessing the murder. Consequently, the only question argued to the jury by counsel was whether it would recommend mercy; the jury declined to do so, and a sentence of death was imposed.
Prior to his trial, petitioner had confessed to five other homicides and one attempted homicide. These confessions were not referred to at trial. They were, however, allegedly given wide publicity by television and radio stations in the area where trial occurred. Contending that this publicity had deprived him of the right to trial before an impartial jury, petitioner brought this collateral proceeding in the state courts.
The Florida District Court of Appeal, rejecting the argument that petitioner’s claim was foreclosed by his failure to raise it in prior proceedings, held that as a matter of state law the principle of res judicata is applicable, in criminal cases, “only to those items actually raised in the prior proceedings.” Whitney v. State, 184 So. 2d 207, at 209 (Fla.). (Emphasis in original.) On the merits the court rejected petitioner’s claim, relying heavily on the fact that trial counsel had made no motion for a *142change of venue, and had not even undertaken to exercise all of his peremptory challenges. Cf. Beck v. Washington, 369 U. S. 541, 557-558. The record also reveals that counsel conducted a vigorous voir dire during which, although for obvious reasons no mention of other crimes was made, each juror represented that he could and would judge the case solely on the basis of what was presented in court. The conclusion that trial counsel deliberately chose to risk the mercy of a local jury, rather than court more imponderable hazards elsewhere, seems inescapable.
After- trial, new counsel sought to depict this perfectly understandable piece of strategy as but the product of incompetence so gross as to give rise to a constitutional claim that the petitioner was deprived of the effective assistance of counsel. In light of the record, and particularly defense counsel’s extensive summation, which clearly evinces an effort to make the best of a hopeless case by trying to save defendant from the death penalty, the claim now made is little short of frivolous.
I can find in this straightforward train of events no room for questioning the validity of this state conviction from a federal constitutional standpoint, or for further prolonging the case.