concurring in part and concurring in the judgment.
It is necessary to analyze the character of the substantive claim made by respondent before addressing the more difficult procedural questions. Properly analyzed, respondent’s habeas corpus petition raises two distinct constitutional claims: First, whether the entry of a judgment of guilt at the conclusion of his first-tier trial deprived him of liberty without due process of law because the evidence was constitutionally insufficient, and second, whether the second-tier trial, if held before the first question is answered, would violate Lydon’s constitutional right not to be twice placed in jeopardy for the same offense.
The answer to the first question is easy. If, as respondent alleged and the District Court found, the Commonwealth’s evidence at respondent’s first-tier trial was insufficient to support a finding of guilt in the first-tier trial, he was entitled to an acquittal. Such an acquittal would have given respondent his unconditional freedom. Instead, he was found guilty of a crime and sentenced to two years in jail. It is true, of course, that Massachusetts has afforded him a right to have that judgment vacated, but as the Court has demonstrated, that relief does not terminate his custodial status Ante, at 300-302. As a matter of federal constitutional law, he had a right to a judgment of acquittal that would eliminate the restraints on his liberty. The Due Process Clause does not permit a State to deprive a person of liberty based on a finding of guilt beyond reasonable doubt after a proceeding in which it failed to adduce sufficient evidence to persuade any *329trier of fact of guilt beyond reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (1979). Therefore, respondent’s continued custody constitutes a deprivation of liberty without due process of law.
The answer to the second question is more difficult. Petitioners concede and the Court assumes that jeopardy attached at the swearing of the first witness at respondent’s first-tier trial. Ante, at 309; see also ante, at 314 (Brennan, J., concurring in part and concurring in judgment). The question then becomes whether the Commonwealth now seeks to place respondent in jeopardy a second time. The Court and Justice Brennan seem to state that had respondent been acquitted at his first-tier trial, the Constitution would prohibit the second-tier trial. Ante, at 308; ante, at 318 (Brennan, J., concurring in part and concurring in judgment). There is also common ground on the proposition that a judgment of acquittal is a necessary precondition to the success of respondent’s double jeopardy claim. The Court says that an acquittal would “terminate” jeopardy; thus a second trial would constitute a new and therefore second and unconstitutional attachment of jeopardy, ante, at 308-309. Justice Brennan writes that once a judgment of acquittal is obtained the Constitution prohibits retrial, and frames the question as whether respondent was entitled to such a judgment prior to his second trial, ante, at 317-319.
What makes this case difficult is that the first-tier trial actually ended with a judgment of conviction. Respondent does not rely on that judgment as the bar to the second-tier trial. Instead, the predicate for his double jeopardy claim is a hypothetical judgment that he contends should have been entered at the end of the first trial. I agree with Justice Brennan that the Court’s use of the concept of “continuing jeopardy” is unhelpful, and that the underlying issue in this case is whether respondent is constitutionally entitled to a judgment of acquittal that could form the predicate for his double jeopardy claim. Ante, at 313-319. To *330put it another way, until a judgment of acquittal is entered — or until there is an adjudication establishing his right to such a judgment — respondent’s double jeopardy claim is premature.
The central procedural question the case presents, therefore, is when, if ever, is respondent entitled to have his first constitutional claim — that he was denied due process as a result of the first-tier trial — adjudicated. This Court, like the Supreme Judicial Court of Massachusetts, answers this question “never.” I disagree. If, as I suggest above, respondent’s current custody is in violation of the Due Process Clause, then respondent has a due process claim cognizable on federal habeas review under Jackson. If this claim is sustained by the federal habeas court, as it was here, that judgment would provide the predicate for respondent’s double jeopardy claim. Such a judgment by the federal habeas court would fall under the rule of Burks v. United States, 437 U. S. 1 (1978). What we said of an appellate court’s reversal of a jury verdict there would apply equally to a federal habeas court’s judgment that the Commonwealth’s evidence at the first-tier trial was insufficient:
“[A]n appellate reversal means that the government’s case was so lacking that it should not have been even submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” Id., at 16 (emphasis in original).1
*331In short, if Massachusetts affords respondent no remedy, I believe a federal court must adjudicate respondent’s Jackson claim, and, if it is sustained, provide habeas corpus relief in the form of an order that requires the State to enter, nunc pro tunc, the judgment of acquittal to which respondent is constitutionally entitled. If and when such a judgment of acquittal is entered, that judgment would bar a second prosecution for the same offense. Or, if the second prosecution had already been concluded before the judgment of acquittal was entered, any jeopardy associated with the second proceeding would be foreclosed; even if the prosecutor had adduced additional evidence at the second-tier trial, the second judgment could not survive the preclusive effect of the acquittal even though it was belatedly entered.2
*332This reasoning leads me to what I regard as the most difficult issue in the case — not whether there should be federal review of Lydon’s claim, but rather, when that review should take place. In answering that question, it is important to keep in mind the precise issue that the federal court must address. That issue is not, as the Court suggests, whether "Lydon could be retried de novo without any judicial determination of the sufficiency of the evidence at his prior bench trial.” Ante, at 303 (footnote omitted). The judge who presided at the first trial did make such a “judicial determination” that the evidence was sufficient. Lydon claims that the determination was erroneous — indeed that the evidence was constitutionally insufficient — but he cannot deny that there was such a judicial determination. What is at issue is whether respondent is entitled to review of the constitutional sufficiency of the prosecutor’s evidence under Jackson v. Virginia prior to his second-tier trial.
I join the judgment because I believe it was inappropriate for the District Court to entertain respondent’s Jackson claim prior to his second-tier trial. The disruption of orderly state processes attendant to the exercise of federal habeas jurisdiction when state proceedings remain pending weighs strongly, and in my view decisively, against the exercise of jurisdiction.
“This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly *333administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.” Francis v. Henderson, 425 U. S. 536, 539 (1976). For example, we have held that federal courts should not exercise habeas jurisdiction when the petitioner has failed to comply with state simultaneous-objection rules, because of the weighty state interests underlying enforcement of such rules. See Engle v. Isaac, 456 U. S. 107 (1982); Wainwright v. Sykes, 433 U. S. 72 (1977).
One of the weightiest of state interests is that favoring speedy, efficient, and uninterrupted disposition of criminal cases. Because of this critical state interest, we have held that federal courts should abstain from exercising their jurisdiction when the effect thereof would be to disrupt ongoing state proceedings. See, e. g., Hicks v. Miranda, 422 U. S. 332, 349 (1975); Huffman v. Pursue, Ltd., 420 U. S. 592, 599-601 (1975); Perez v. Ledesma, 401 U. S. 82, 84-85 (1971); Younger v. Harris, 401 U. S. 37, 41-45 (1971).
Similarly, the statutory exhaustion requirement found in the habeas statute, 28 U. S. C. § 2254, reflects a recognition that federal habeas courts should not disrupt ongoing state proceedings. See Rose v. Lundy, 455 U. S. 509, 518 (1982). Indeed, in our leading case concerning the propriety of pretrial federal habeas intervention under the exhaustion doctrine, we cautioned that such review would be inappropriate when it threatens to disrupt pending state proceedings and orderly state processes. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U. S. 484, 490-493 (1973). Thus, the habeas statute itself reflects this concern with disrupting ongoing state proceedings.3
*334The state interest against disruption of ongoing proceedings is squarely implicated by the exercise of federal habeas jurisdiction over this case. Respondent was convicted at his first-tier bench trial on November 20, 1979, and his second-tier jury trial was originally set for November 29. That trial has been delayed for over four years. While some of that delay has been attributable to litigation in the state courts, over three years' worth of delay is attributable to federal habeas review.4
If we were to uphold the exercise of federal habeas jurisdiction here, similar delays could become routine in Massachusetts. Already there are some 14,000 cases a year taken to the second-tier jury trial- In virtually all of these cases, the defendant could seek federal habeas review at the conclusion of the first trial, claiming that the evidence used to convict him was insufficient. Defendants have every incentive to seek habeas review, not only to delay eventual *335punishment, but to obtain leverage in plea negotiations.5 The speed and efficiency of the process would quickly be eroded if collateral litigation intervened between the first and second trials. The wholesale disruption of pending proceedings that would occur if federal habeas review were available between the first and second trials to every defendant who thought the evidence of his guilt was insufficient counsels strongly against the exercise of such jurisdiction.6 The state process should be permitted to proceed in an uninterrupted fashion before federal habeas review comes into play.
The postponement of review in this case would not render petitioner’s double jeopardy claim entirely nugatory. First, if respondent’s claim is meritorious, under my view, he would ultimately obtain relief from his conviction through federal habeas review after state proceedings are complete. Moreover, if his claim is meritorious, respondent will likely be acquitted at his second-tier trial precisely because of the insufficiency of the Commonwealth’s evidence. It is true, of course, that the prosecutor may supply proof of an element of the offense that was omitted in the first trial. It is reasonable to assume, however, that in most of the relatively simple *336misdemeanor prosecutions that employ this procedure, the same evidence will again be offered and the same issue will again be presented to the second judge as to the first. The likelihood that the substance of respondent’s claim will be heard and vindicated at his impending trial argues all the more strongly against federal intervention at this point in the proceedings.7
Second, if my view were to prevail, state prosecutors would be aware that the sufficiency of the evidence at the first-tier trial would eventually be reviewed, and they would therefore have a greater incentive to adduce sufficient evidence at that trial. Thus, the ultimate availability of federal collateral review would reduce the likelihood of a constitutional violation.
Finally, as the Court explains, ante, at 310-312, the Massachusetts two-tier trial system is not an especially harsh one. By voluntarily electing that procedure, the defendant has accepted the risk of two trials when he could insist upon only one. While this election cannot justify a refusal to provide any remedy for a constitutional violation, it does indicate that the enforcement of the exhaustion requirement in this case would not place upon respondent an entirely unavoidable obligation to endure two trials.
On balance I think the principles of comity that underlie the exhaustion and abstention doctrines make the exercise of federal habeas jurisdiction in this case premature. The state interest in avoiding wholesale disruption of its criminal process requires a federal habeas court to postpone the exercise of its jurisdiction over this case until after the second-tier trial has been completed. I would hold that in order to assert his constitutional claims, respondent must first take advantage of the opportunity the State provides him for an *337acquittal in the second trial. If he is convicted in that proceeding, I would hold that a federal court may then review the record of the first trial to determine whether he was constitutionally entitled to an acquittal. If the record should then support the claim that respondent has made, I would conclude that he is entitled to release even if the State adduced enough additional evidence at the second-tier trial to support a conviction. Accordingly, I concur in Parts I and II of the Court’s opinion and in the judgment.
See also Tibbs v. Florida, 457 U. S. 31, 41 (1982) (“A verdict of not guilty whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial. A reversal based on insufficiency of the evidence has the same effect because it means that no rational factfinder could have voted to convict the defendant”).
Justice Brennan resists this conclusion in “the unique context of the Massachusetts two-tier trial system” because respondent selected this system and received certain tactical advantages as a result of that decision. Ante, at 324. However, the tactical advantages Justice Brennan discusses would be entirely illusory if respondent could be convicted even if the Commonwealth adduced insufficient evidence against him at the first-tier trial. The Massachusetts system is only fair to defendants if it acquits those who deserve acquittal. We do not know whether respondent would have selected this system had he known that he had no right to be acquitted at his first-tier trial even if the Commonwealth’s evidence was incapable of persuading any rational trier of fact of his guilt. Surely respondent did not validly waive his right to be acquitted under those circumstances in the sense of intentionally relinquishing a known right, which is what the Constitution requires. See Green v. United States, 355 U. S. 184, 191-192 (1957). See also Burks v. United States, 437 U. S. 1, 17 (1978). Respondent’s right to an acquittal if there was a failure of proof at the first-tier trial must be enforced if the quid pro quo which Justice Brennan believes validates the Massachusetts system is to be realized. Moreover, if, as petitioners concede and the Court and Justice Brennan assume, jeopardy attached when the first witness at respondent’s first-tier trial was sworn, double jeopardy would operate to prevent the second-tier trial under Justice Brennan’s own analysis of the case. As he explains, ante, at 315-318, the Double Jeopardy Clause has been construed to permit jeopardy to “continue” only when there has not been a failure of proof at the *332first trial. See Burks, 437 U. S., at 15-16. Here there has been a failure of proof, and hence, as Burks and Justice Brennan explain, no legitimate interest in retrial. Without a valid reason to “continue” jeopardy, the Commonwealth cannot constitutionally subject respondent to continued criminal proceedings. Finally, if the Commonwealth convicted respondent on insufficient evidence at the first-tier trial, that trial was fundamentally unfair and the continued deprivation of respondent’s liberty is violative of due process. We have refused to tolerate fundamentally unfair first-tier trials simply because a fair trial will be provided at the second-tier. See Ward v. Village of Monroeville, 409 U. S. 57, 61-62 (1972) (availability of trial de novo does not cure bias of judge at first-tier trial).
I am not suggesting that respondent’s double jeopardy claim has not been exhausted; I agree that it has been for the reasons stated in Part II-B of the opinion of the Court. However, while that claim has been exhausted, it would nevertheless be meritless unless the antecedent Jackson claim may also be entertained by the federal habeas court. As to that claim it is true that in a technical sense respondent may well have no state *334remedy to exhaust inasmuch as the Massachusetts courts have indicated that they will not review respondent’s Jackson claim even after his second-tier trial. See ante, at 322-323, n. 6 (Brennan, J., concurring in part and concurring in judgment). However, even if there has been exhaustion in a technical sense here, the more fundamental policies underlying the exhaustion requirement may be jeopardized if a habeas petition is entertained while state proceedings remain pending. After all, exhaustion was originally a judge-made rule designed not as a technical doctrine but rather to prevent premature and unjustified interference in state proceedings. See, e. g., Ex parte Hawk, 321 U. S. 114, 116-118 (1944) (per curiam); United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 17-19 (1925); Davis v. Burke, 179 U. S. 399, 402-403 (1900); Ex parte Royall, 117 U. S. 241, 251-252 (1886).
This case was pending approximately seven months in the District Court, and in the Court of Appeals about another seven months. By this observation I intend no criticism of these courts. If anything, both courts disposed of the case with more than reasonable promptness. Rather, I make this observation to demonstrate the inevitable delay whenever federal habeas review is commenced, even if the case is adjudicated with commendable dispatch.
I have no doubt that if we approved the exercise of habeas jurisdiction in this case, the district judges in Massachusetts would attempt to minimize disruption by adjudicating habeas cases as quickly as possible. Nevertheless, the quality of justice in such a harried process is bound to suffer. Moreover, the district judges in Massachusetts, as elsewhere, have enough burdens with which they must cope without the additional time pressure created by “interlocutory” habeas cases such as this one.
Respondent and the Court of Appeals suggest that habeas review could be limited to cases in which the petitioner could make a strong initial showing of a likely constitutional violation. Nevertheless, every defendant could attempt to make such a showing in the few days between the first- and second-tier trials. Such hurry-up litigation will burden prosecutors and courts, reduce the quality of justice, and surely prove impractical (it will certainly take more than a few days just to obtain the record and transcribe the recording of the first-tier trial), forcing the state system to delay until the federal case can be adjudicated.
In this case the District Court's findings indicate that the essential problem with the Commonwealth’s case is that respondent was charged with the wrong offense. That problem cannot be remedied simply by adducing additional evidence at the second-tier trial.