(dissenting) .
I respectfully dissent. Cotner did have the opportunity to withdraw his plea of guilty and move that the judgment be vacated within the term at which the plea was entered. He failed to exercise that remedy. Faced with a similar problem, the Fourth Circuit, in Whitley v. Steiner, 293 F.2d 895, 898, 899 (1961), stated: “* * * Where a state prisoner, asserting a denial of constitutional rights in connection with his conviction, has a remedy in the state court but fails to avail himself of it, and later finds himself without a state remedy, he may not have redress through federal habeas corpus.” See also Brown v. Allen, 344 U.S. 443, 482-487, 73 S.Ct. 397, 97 L.Ed. 469 (1953).
To grant Cotner relief as the majority opinion does, would seem to assert that federal courts have broad supervisory powers over the manner in which state courts handle criminal prosecutions for violations of state laws. I disagree.
In Koepke v. Hill, 157 Ind. 172, 60 N.E. 1039, 1041, an Indiana case, the court said: “If a federal question were duly presented, we would be constrained to follow the decisions of the Supreme Court of the United States.” But Cotner never gave the Indiana courts any opportunity to pass on the issue.
The majority opinion concedes that it is possible that if Cotner had sought relief in the Indiana courts, he would have been permitted to challenge his conviction in the manner in which he does in the instant habeas corpus petition.
The majority opinion injects the idea that the state should have shown that Cotner used force. I think such a theory is entirely unwarranted.
I take it that if Cotner had shot his wife in the privacy of their bedroom, the majority of the panel which heard this appeal would not proclaim that there is a difference between a crime committed in the bedroom and otherwise. I take it that in such a case there would be no claim of “ * * * an unwarranted invasion of marital privacy under the Fourteenth Amendment.” I also assume *877that under such circumstances there would be no claim that Cotner’s conduct could not be questioned because, as the majority states “it is essential to the preservation of the right of privacy that a husband have standing to protect the marital bedroom aginst unlawful intrusion.”
I would affirm the District Court.