(dissenting).
The function of the federal courts in a habeas corpus proceeding brought to test a state court conviction challenged as invalid under the Fourteenth Amendment for want of due process is not to substitute their own conceptions of sub*366stantive and procedural justice for that of the state but rather to determine whether the state has denied the relator due process of law. Thus, attention must be concentrated upon those processes made available to relator by the state to assure him of adequate opportunities and facilities to .claim and to have adjudicated his constitutional rights. The lengthy opinion of the majority, while paying occasional lip service to certain fundamental and well-established jurisdictional principles relating to federal review of state convictions, actually repudiates in radical fashion the very principles developed over the years by the Supreme Court. The doctrine now enunciated by the majority is that whenever a group of appellate judges wish to depart from previously settled principles, they may find that “extraordinary circumstances” exist and that such a finding entitled them to ignore on an ad hoc basis all otherwise applicable principles. Realizing that such a declaration has alarmist implications, it will be necessary to analyze the facts, the law and the majority opinion rather critically lest the cry of “wolf-wolf” rouse in vain those watchful of the administration of criminal justice.
On May 11, 1941, Noia, Bonino and Caminito were apprehended and thereafter charged with first-degree murder. Upon a jury trial, they were convicted. Clemency was recommended by the jury so that sentences of life imprisonment instead of death were imposed. Bonino and Caminito appealed through the state courts and sought certiorari from the Supreme Court which was denied. Noia, the relator here, having been advised by counsel of his right to appeal, chose not to do so. On the habeas corpus proceeding, there was testimony given by Noia’s trial counsel that Noia did not wish to risk an appeal which, if successful, might result in a re-trial upon which, if convicted, the death penalty might be imposed. Noia testified that he had no funds to retain an attorney to prosecute an appeal and did not wish to put his family further into debt. The trial court made no findings on these factual issues.
As a result of the court proceedings set forth in the majority opinion, Bonino and Caminito find themselves relieved of their judgments of conviction because of decisions that coerced confessions were used against them. Quite naturally, Noia regrets his original decision not to appeal and, despite this failure, wishes to enjoy the same benefits as his former co-defendants. And so he now argues that, although he has knowingly and voluntarily failed to appeal and no longer has the right to appeal, he may still substitute federal habeas corpus for the state provided appellate procedure which he chose not to pursue.
Were such an argument to be accepted as sound, any defendant convicted in a State court after a trial, in which an allegedly coerced confession has been used and in which the question of coercion has been fairly submitted for jury determination, can in the event of an adverse decision obtain a new trial of the identical issue before a federal judge merely by allowing the time to appeal to elapse and then applying under Section 2254 for a federal writ. To the majority, such failure is without legal significance because it should “not sit well on the consciences of civilized men that a man should spend the rest of his life in confinement when it is patent to all that the only reason for the detention is that he did not timely appeal his conviction” (Maj.Op., p. 362).
In order to accomplish the result they desire, the majority have to find that Noia’s right to habeas corpus was not barred by any one of three well-established rules of federal review: (1) that a party cannot seek to have a conviction set aside on the ground that his constitutional rights were violated if he has intentionally waived his right to assert that claim; (2) that federal habeas corpus is not available to state prisoners who have not exhausted their state remedies, 28 U.S.C. § 2254; and (3) that state convictions are not subject to federal *367review if there is an adequate state ground which will sustain the conviction.
Thus, “The first question before us is whether, inasmuch as his conviction was not appealed, Noia waived his undeniable constitutional right of being tried without his coerced confession in evidence” (Maj.Op., p. 350). In answering this question, the majority starts out by purporting to adhere to legal principles and by conceding that “waiver is ordinarily ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 82 L.Ed. 1461] (1938).” Next they recognize that, “It would seem that a conscious and willing failure to appeal could indeed be a form of waiver. Brown v. Allen, 344 U.S. 443, 503 [73 S.Ct. 397, 437, 97 L.Ed. 469] (1953) (opinion of Frankfurter, J.).” Undisputedly Noia knew that a “coerced” confession had been used against him on his trial. His failure to appeal was “conscious and willing” enough. What better exercise of judgment than to exercise it in favor of saving his life. The majority “cannot believe that Noia would consciously and willingly have surrendered his constitutional right had he known then what he knows now:”. Nor can I. What defendant would ever plead guilty or waive for good cause his right to appeal if he knew in advance that he would be acquitted or that his conviction would be reversed and the indictment dismissed. Nevertheless, the decision of the majority is that “relator did not waive his right under the Fourteenth Amendment not to be tried and convicted solely upon his coerced confession.”, and that despite the adequacy of State appellate procedure, Noia was not required to use it because “it was not at all clear that Noia could convince an appellate court of the unconstitutionality of his treatment” (Maj.Op., p. 351).
Since the question of whether Noia intentionally waived his right to claim • that a coerced confession was used against him involved an issue of fact, it is not proper for the majority to substitute its speculation and its conclusions as to why Noia failed to appeal for the evidence actually presented to the district court and to formulate a judgment were based on facts now known rather than on the facts existing at the time of the conviction. As previously mentioned, in the hearing before the district court Noia’s trial counsel testified for the state that Noia did not appeal because he feared that on retrial the death penalty might be imposed. If we accept this as true, it is clear that Noia intentionally waived his right to claim that a coerced confession was used against him. Although this testimony was contradicted by Noia’s testimony, the district court did not make any finding on this question because it believed that its decision on the § 2254 issue made such a finding unnecessary. 183 F.Supp. at p. 225 n. 4. Thus, even if the majority were correct in holding that Noia’s right to federal review was not barred because of a failure to exhaust state remedies or by an adequate state ground, this court should not order the district court to issue the writ because there is still a question of fact on the issue of waiver that must be decided by the district court.
The majority next turns to the question, “whether [Noia’s] failure to appeal his conviction precludes him from relief under the Great Writ because of the requirement in 28 U.S.C. § 2254 * * * that a petitioner exhaust his state remedies before seeking federal habeas corpus.” While recognizing that “language in certain recent Supreme Court decisions indicates that interpreting the section to apply only to the exhaustion of presently available remedies would be erroneous” (Maj.Op., p. 356), the majority finds it plausible to interpret § 2254 “simply to mean that when both the state and the federal courts are available to a particular state prisoner he should go into the state court first.”
Since I believe that Noia is not entitled to federal habeas corpus because his conviction is supported by an adequate state ground which precludes federal review (to be discussed infra) and also because he probably waived his constitutional *368claim, there would be little to be gained from my setting forth extensively my views on whether § 2254 applies to past as well as present state remedies although, in my opinion, a more reasonable reading of the statute would be one which would not permit a defendant to fail wilfully to avail himself of the due process which the state accords him and then claim exhaustion of remedy. However, since the majority have chosen to deal with this question at length, they should have given some consideration to the question, which will no doubt plague the district courts, namely, how does this decision aifect our prior ruling in United States ex rel. Kozicky v. Fay, 2 Cir., 1957, 248 F.2d 520. In Kozicky, a case in which the defendant had failed to appeal to the New York Court of Appeals from a state court conviction, the author of the majority opinion in this case said (for a unanimous panel), “If the state provided such a remedy (i. e., an appeal) and the petitioners failed to take advantage of it, we hold they cannot obtain a writ of habeas corpus from a federal court. This result is a necessary consequence of * * * 28 U.S.C.A. § 2254.” 248 F.2d at 522. He continued, “But, where the failure of a prisoner to obtain relief is due to his own inaction, 28 U.S.C.A. § 2254 prohibits intervention by the federal courts.” 248 F.2d at 523. Does the majority wish to overrule Kozicky completely or would they hold that the decision was right but the reasoning was wrong? What of the statement in Kozicky that “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts (sic) to correct a constitutional violation” (248 F.2d at 523, quoting from United States ex rel. Marcial v. Fay, 2d Cir., 1957, 247 F.2d 662)?
Lastly after conceding that “an adequate state ground of decision will preclude relief under federal habeas corpus,” the majority pose the question: “Whether Noia’s failure to appeal his conviction is a state procedural ground adequate to bar his path to freedom under the federal writ” (Maj.Op., p. 359). Thus, the majority has “come to the last scene in this human drama” “dooming relator to life imprisonment.” Legal principles having failed to produce the desired result, resort must be had to a tour de force by the fiat that “No state ground is entitled to unqualified deference” and “adequacy” in any event is but “a term of relativity.” After all, “for the state ground to be adequate, it must be reasonable,” and what could be more unreasonable than requiring a defendant to appeal ?
From here on the denouement comes rapidly. The “simple failure to appeal, reasonable enough to prevent federal judicial intervention in most cases, is in this particular case unreasonable and inadequate.”
However, the adequate state ground doctrine, namely, that a federal court cannot consider the merits of a constitutional claim alleged to invalidate a state conviction if that claim was not presented to the state courts by the use of all reasonable state procedures, cannot be disregarded as easily as the majority assumes. As Mr. Justice Frankfurter said in reference to this doctrine:
“Something that goes to the very structure of our federal system in its distribution of power between the United States and the States is not a mere bit of red tape to be cut, on the assumption that this Court has general discretion to see justice done. Nor is it one of those ‘technical’ matters that laymen, with more confidence than understanding of our constitutional system, so often disdain.” [Irvin v. Dowd, 359 U.S. 394, 408, 79 S.Ct. 825, 833, 3 L.Ed.2d 900, 1959 (dissenting opinion).] 1
The decision of the Supreme Court in Daniels v. Allen, decided sub nom. Brown *369v. Allen, 344 U.S. 443, 73 S.Ct. 397, 437, 97 L.Ed. 469, 1953, clearly controls the issues in this case and requires affirmance of the dismissal of the writ. The petitioners in Daniels had made timely objection to the introduction in evidence against them of confessions which were alleged to have been coerced and had also made timely motions at their trial to quash the indictment and challenge the array, alleging discrimination against Negroes in' the selection of the grand and petit jurors. On appeal, the Supreme Court of North Carolina refused to examine these constitutional claims because the statement of the case on appeal had been filed one day after the period of limitation for such service. After the Supreme Court had denied certiorari and the state court twice denied leave to apply for coram nobis, the petitions for habeas corpus were filed alleging the use of a coerced confession and discrimination in the selection of the grand and petit jurors. The Supreme Court in affirming the denial of the writ refused to pass on the substance of the federal claims because “the failure to serve the statement of the case on appeal seems to us decisive * * 344 U.S. at 483, 73 S.Ct. at 420. In holding that the state procedural ground was sufficient to preclude collateral review of constitutional claims, the Court said,
“The writ of habeas corpus in federal courts is not authorized for state prisoners at the discretion of the federal courts. It is only authorized when a state prisoner is in custody in violation of the Constitution of the United States. 28 U.S. C. § 2241, 28 U.S.C.A. § 2241. That fact is not to be tested by the use of habeas corpus in lieu of an appeal.” (344 U.S. at 485, 73 S.Ct. at 421.)
While the majority admit that Daniels established that an adequate state ground of decision will preclude relief under federal habeas corpus, they attempt to avoid the application of Daniels by claiming that there are “exceptional circumstances” in this case which justify the disregarding of the adequate state ground for decision. However, an examination of the facts in the Daniels case and in Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83, 1955, shows that the rigor with which the Supreme Court has applied the adequate state ground rule precludes the making of an exception. In Daniels, the petitioners who were under sentence-of death did not fail to appeal at all (as in this case) but were merely one day late in serving the case on appeal. On the last day for serving the case on appeal, petitioner’s attorney had called at the prosecuting attorney’s office to serve him but the prosecutor was out of town; had petitioner’s attorney mailed the statement on that day instead of delivering it on the next official day, the service would have been adequate.
In Michel v. Louisiana, despite the fact that the petitioner was under sentence of death in Louisiana, the Supreme Court refused to pass upon his constitutional claim because of a failure to comply with state procedure. Michel, a Negro, claimed that he had been denied due process of law because there had been a systematic exclusion of Negroes from the grand jury panel which indicted him. Louisiana law required that objections to a grand jury be raised before the expiration of the third judicial day following the end of the grand jury’s term but Michel’s motion to quash the indictment had not been filed until the fifth judicial day after the expiration of the term. This procedural ground was found adequate to prevent review of the constitutional claim even though Michel’s counsel was not appointed until the day the grand jury’s term expired and did not receive formal notice of appointment until three days later. It is also significant that in Michel it was clear that there had been a violation of Michel’s constitutional rights. Mr. Justice Black, dissenting, pointed out that in the memory of people living in the parish there had been only one Negro selected to serve on a grand jury in that parish and he happened to look like *370a white man. 350 U.S. at 102, 76 S.Ct. 158.
A comparison of the facts of the Daniels and Michel cases with those in the present case shows that the adequate state ground rule does not yield to exceptional cases as the majority contends:
(1) In both Daniels and Michel, the appellants were under sentence of death, while here the appellant is subject only to imprisonment.
(2) In both Daniels and Michel, the petitioners attempted to avail themselves of state procedures and came within days of doing so; here the petitioner never sought to appeal and did not raise his claim in the state court until fourteen years after his conviction.
(3) In both Daniels and Michel, there were extenuating circumstances which could have been considered as supplying a reason for the appellants’ failure to comply with the state procedures.
(4) In Michel, it was, at least, as clear as it is here that there had been a denial of constitutional rights.
I do not contend that state procedural grounds for denying a hearing to federal claims must always be considered adequate to preclude federal review of that claim. Certainly, a procedural ground will not bar federal review if the state procedure discriminates against the assertion of federal claims, Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161, 1955; Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751, 1920; N. A. A. C. P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, 1958, or unreasonably prevents the assertion of federal rights, Davis v. Wechsler, 263 U.S. 22, 44 S.Ct. 13, 68 L.Ed. 143, 1923; Rogers v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417, 1904; Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77, 1955; Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302, 1958. However, inadequacy must be determined according to principles established by the Supreme Court. Since Daniels v. Allen has established that the failure to take an appeal is a reasonable ground for a state’s refusal to entertain constitutional claims, we should not now hold that the failure to appeal is not a reasonable ground for denying a hearing to such claims unless the petitioner did not have an “opportunity to appeal because of lack of counsel, incapacity, or some interference by officials.” Daniels v. Allen, 344 U.S. at 485, 73 S.Ct. at 422. However, the petitioner here had a hearing before the district court at which he was afforded an opportunity to present facts which might have excused his failure to appeal. After weighing the proof, the district court found that “the hearing utterly failed to reveal any such circumstances.”
The reliance of the majority on the “exceptional circumstances” language in Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), both of which were concerned with the exhaustion problem under § 2254, is misplaced. It is interesting to note that the majority recognizes that the exhaustion of state remedies doctrine under § 2254 is distinct from the adequate state ground doctrine; yet without discussion, they find that, if there are exceptions to the exhaustion doctrine, there are like exceptions to the adequate state grounds doctrine. However, in my opinion, a proper analysis of these doctrines shows that the exception rules of the one are not applicable to the other.
The majority, in recognizing that “all the cited cases from Ex parte Royall to Hawk recognize that much cannot be foreseen, and that ‘special circumstances’ justify departure from rules designed to regulate the usual case,” Darr v. Bur-ford, 339 U.S. at 210, 70 S.Ct. 587, 593, 94 L.Ed. 761, should also have noted that the Supreme Court has always recognized that it had the power to hear these exhaustion cases without requiring resort to the state courts. Thus, the Supreme Court said in Darr v. Burford:
“Ex parte Royall, decided in 1886, held that a federal district court had *371jurisdiction to release before trial a state prisoner who was held in violation of federal constitutional rights but it approved denial of the writ as a matter of discretion.” 339 U.S. at 205, 70 S.Ct. at 590. (Emphasis added.)
Although the requirement of exhaustion of state remedies is a matter of discretion and “special circumstances” might require the exercise of that discretion so as to hear the federal claim on the merits even though state procedures are not exhausted, in cases in which an adequate state procedural ground for decision has been held to cut off federal review, the Supreme Court has often stated that the fact that the judgment of conviction was supported by a procedural ground for decision deprived it of the power to set aside the conviction. Whitney v. California, 274 U.S. 357, 372, 47 S.Ct. 641, 71 L.Ed. 1095, 1927 (Brandeis, J., concurring); Herndon v. Georgia, 295 U.S. 441, 442, 55 S.Ct. 794, 79 L.Ed. 1530 (1935); Edelman v. California, 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387, 1953; Irvin v. Dowd, 359 U.S. 394, 412-413, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959) (Harlan, J., dissenting); Wolfe v. North Carolina, 364 U.S. 177, 196, 80 S.Ct. 1482, 4 L.Ed.2d 1650, 1960; see Cicenia v. Lagay, 357 U.S. 504, 507 n. 2, 78 S.Ct. 1297, 2 L.Ed.2d 1523. Although all of these cases except Irvin v. Dowd, involved direct review, Mr. Justice Harlan pointed out in Irvin that the same rule applies in habeas corpus cases:
“It is clear that the federal courts would be without jurisdiction to consider petitioner’s constitutional claims on habeas corpus if the Supreme Court of Indiana rejected those claims because, irrespective of their possible merit, they were not presented to it,in compliance with the State’s ‘adequate and easily-eomplied-with method of appeal.’ Brown v. Allen, 344 U.S. 443, 485 [73 S.Ct. 397, 437, 97 L.Ed. 469].” [359 U.S. at 412-413, 79 S.Ct. at 835],2
Neither Patterson v. Alabama, 294 U.S. 600, 55 S.Ct. 575, 79 L.Ed. 1082 (1935), nor Williams v. Georgia, supra, support the proposition that on a clear showing of a constitutional deprivation, the federal courts can ignore an adequate state ground. In Patterson, supra, the Supreme Court recognized that even though the federal right was clear, the state could refuse to hear that claim because of a failure to comply with state procedures. 294 U.S. at 605, 55 S.Ct. 575. The Court decided to remand, however, because it was not certain that the state court would have considered itself powerless to consider the constitutional claim if it had been aware of the merit of that claim. A reading of Patterson implies that the state on remand could have again rested its decision on the state procedural ground and that the Supreme Court would not then have reviewed that decision. Since in this ease the state court was fully aware of the validity of the constitutional claim when it asserted that Noia’s failure to appeal precluded review of his federal claim, see 3 N.Y.2d at 598—599, 170 N.Y.S.2d 799, 148 N.E.2d 139, the reasoning of Patterson is inapplicable here.
Williams not only does not support the proposition that the federal courts can ignore an adequate state ground, but shows the reluctance of the Supreme Court to interfere with state court proceedings. In Williams the court found the procedural ground of the decision inadequate because the state court had discretion to hear the constitutional claim even though there was a failure to comply with the proper procedure and the *372state court had consistently exercised that discretion so as to hear the merits of appeals in similar cases. The inadequacy of Williams, therefore, arose from the fact that the state court had refused to exercise its discretion “to entertain a constitutional claim while passing upon similar issues raised in the same manner.” 349 U.S. at 383, 75 S.Ct. at 819; see Wolfe v. North Carolina, 364 U.S. 177, 188, 80 S.Ct. 1482, 4 L.Ed.2d 1650; Note, Supreme Court Treatment of State Procedural Grounds Relied on in State Courts to Preclude Decision of Federal Questions, 61 Colum.L.Rev. 255, 266-67 (1961). Even though the Court had jurisdiction to hear the merits of the case in Williams, and did, in fact, find a denial of a constitutional right, out of deference to the State courts it did not reverse the conviction, but instead remanded the case to the state court because in the argument before the Supreme Court the State Attorney General conceded that there had been a constitutional violation, although he had insisted before the Georgia Supreme Court that there had been no such violation. This refusal of the Court to reverse a conviction even though it had jurisdiction to do so well illustrates the deference which the Court pays to state proceedings.
The opinion of the majority could have been written in one sentence substantially, as follows: “In any criminal ease in a State court wherein a confession was introduced and a conviction resulted, the defendant may, at any time thereafter without appealing such conviction or exhausting. any other available state remedy, claim upon petition for a writ of habeas corpus that such confession was coerced and, upon a finding to that effect by a federal judge, a writ shall issue to the State directing the defendant’s release from custody (citing cases if there be any).” If this is to be the rule of law, is not a reappraisal of our criminal procedure in this field called for? If the delicate balance of the State-Federal relationship is to be upset, possibly the majority’s approach is best, namely, upset it drastically. If each case is to be decided on its own “exceptional situation” basis, let this principle be declared so that consideration of the scores of habeas corpus appeals which come before this court every year can be unfettered by legal principles. No longer will it be necessary after due deliberation to write “Failure to exhaust State remedies” or “No federal question.” And in fairness to the two distinguished appellate courts in New York, would it not be better to advise them that in any case before them involving a coerced confession they are but puppets whose strings may be cut at any time by the keen edge of the “Great Writ.” It may well be that there should be a definite rule that no case involving an allegedly coerced confession should be tried in a state court or, stated differently, that such a case should be tried only before a federal judge. Whether this should be is for those far more learned in such matters than I to determine. I point out only that such is not the law at the present time — at least until the filing of the majority opinion.
I would affirm.
. Tlie majority in Irvin never questioned the valid’ty of the adequate state ground rule for they read the state court decision as resting on the federal ground.
. Although this statement appears in a dissenting opinion, it appears that a majority of the Court agreed on this point. Justices Frankfurter, Clark and Whit-taker concurred in Mr. Justice Harlan’s dissent, and it would seem that Mr. Justice Stewart would agree with this statement for he concurred with the majority “with the understanding that the Court does not here depart from the principles announced in Brown v. Allen, 344 U.S. 443 [73 S.Ct. 397, 97 L.Ed. 469].” [359 U.S. at 407, 79 S.Ct. at 832],