(dissenting).
Judge Biggs’ dissent from the majority opinion of the panel raises for me sufficiently grave questions to require rehearing before the court en banc.
The majority opinion of the panel declares that “all the points now raised by appellant” were “fully considered * * * on the occasion of his first appeal to this court” in United States ex rel. Smith v. State of New Jersey, 322 F.2d 810 (3 Cir. 1963) cert. denied, 376 U.S. 928, 84 S.Ct. 678, 11 L.Ed.2d 623 (1964). The panel majority therefore “consider that opinion dispositive” of this second appeal. It seems to me, however, that three claims in this second petition for habeas corpus were not adjudicated in our prior decision.
(1) Appellant claims that his confirmation of his confession, given after his indictment, was unconstitutionally obtained because it was taken outside the presence of his counsel, contrary to the subsequent rule of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), which he contends is retroactively applicable to his case. While the facts on which this claim is made were in the first petition for federal habeas corpus this contention obviously could not have been advanced in the first case either in the district court or on appeal to us, for Massiah was handed down after we decided the first appeal.
(2) Appellant claims that evidence against him was obtained as a result of information involuntarily extracted from him by the use of a truth serum. This claim substantially was presented in appellant’s first petition for federal habeas corpus, but it was not considered either in the district court or by us on appeal because of failure to exhaust available state court remedies.
(3) Appellant claims that he was deprived of due process because the jury was permitted to render a verdict of guilty of first degree murder which automatically required the imposition of the death penalty without being informed that this consequence would follow unless they made a recommendation of mercy. This claim was not raised in the first petition for federal habeas corpus and was not involved in the first appeal.
I say nothing of the merits of these contentions. It is enough for me that they were not previously adjudicated and are now lost in the majority’s conclusion that the first appeal is dispositive of the present one.
Appellant also claims that he is entitled to a federal court hearing on the voluntariness of his confession because the state court record is inadequate under the expanded right to a hearing recognized in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).1 This claim was rejected by the district court on the ground that it was adjudicated by our decision on the first appeal. The panel majority now affirms this and adds that although the first appeal was argued before Townsend v. Sain was handed down, its application to appellant’s first appeal was considered by the first panel in rendering its decision and by the court en banc in refusing a petition for rehearing in which Townsend was expressly relied on.
*257I find this answer to appellant’s claim unpersuasive because appellant makes substantial allegations in the present proceeding which do not appear in the prior federal habeas corpus proceeding or in the state court record and which go to the question of the voluntariness of his confession and therefore affect the adequacy of the state court record.
For example, appellant now alleges for the first time that during his interrogation before making his confession he was forced to strip naked and was left in a room with two detectives who taunted him, pushed him, and knocked him down. He alleges that during this episode the detectives told him that they would question him until he told them the truth and that his wife whom he had seen in the corridor was worried and was waiting for him. He also adds now, among other new allegations, that his statement was made after the police told him that his wife, who was being held by them, would be released when he “talked”.
The fact that appellant did not present such facts in his first petition for federal habeas corpus should not preclude our consideration of them now. That proceeding occurred prior to Townsend v. Sain, when a federal plenary hearing was considered primarily a matter of grace rather than of right (Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953)) and when counsel could readily have believed that allegations such as these would be unavailing.
I also do not believe appellant’s claim that he is entitled to a federal habeas corpus hearing may be rejected summarily on the ground of waiver, even if the language of his then counsel, quoted in the majority opinion of the panel, is construed as an expression of belief that the state court record was adequate and that a federal hearing therefore was unnecessary. It is clear that counsel will not be deemed to have waived a right which did not exist at the time. To me it is equally incredible that counsel should be said to have waived in its entirety a right which existed only partially at the time.
Even if it could be said that counsel had waived expressly and completely all right to a federal hearing, I have serious doubt that such a waiver should be held binding on a defendant in a capital case. We should be on guard against applying to a defendant in such a ease a doctrine which would estop him from the assertion of rights which might save his life because of an erroneous judgment of his lawyer which does not deal with the merits of his claim.
I therefore believe the case should be reheard before the court en banc and dissent from the denial of the petition for rehearing.
. See also the new habeas corpus act, 28 U.S.C. § 2254(d).