(concurring):
I find it impossible to dismiss petitioner’s claim on the sole basis of our per curiam opinion without saying more. The court file includes a pro se memorandum to the district court and a letter written by the petitioner to his counsel1 that his claim be considered under Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957) and Cichos v. State of Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966) (see dissenting opinion). Petitioner claims he is being deprived of due process of law under the Fourteenth Amendment, by reason of its incorporation of the Fifth Amendment double jeopardy provision which reads:
“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U. S. Const., Amend. V.
Petitioner contends in view of the jury’s verdict in the first trial, the court at that time could not assess a greater punishment against him under § 747.1 as an habitual criminal. See State v. Smith, supra.2 Petitioner’s basic contention under Green, supra, is that the state in utilizing the habitual criminal statute to increase his sentence upon retrial has penalized him because he sought a new trial from his previous conviction, which had been in this ease judicially determined to rest upon prejudicial error.3 *284Petitioner’s contention is that this raises questions of double punishment as double jeopardy on the instant charge, rather than on the prior convictions, also issues of fundamental fairness under the due process clause and denial of equal protection of the laws. Compare United States v. White, 882 F.2d 445 (7 Cir. 1967) with Patton v. State of North Carolina. 381 F.2d 636 (4 Cir. 1967); Whaley v. State of North Carolina, 379 F.2d 221 (4 Cir. 1967); People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (Cal. 1963). See this court’s discussion in Beardslee v. United States, 387 F.2d 280, 297-98 (8 Cir. 1967). Petitioner’s contention also raises serious questions concerning the “selective incorporation” doctrine of the Fifth Amendment under the Fourteenth Amendment. Cf. United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2 Cir. 1965) (excellent analysis of problem by Circuit Judge Marshall, now Mr. Justice Marshall). See also Judge Blackmun's discussion in Ashe v. Swenson, 399 F.2d 40 (8 Cir. July 30, 1968). And it could, if the principles of Green are determined applicable to the present facts, raise constitutional questions as to the “reasonable possibility” (Fahy v. State of Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)) of prejudice relating to defendant’s conviction on the robbery count. See United States ex rel. Hetenyi v. Wilkins, supra; Cichos v. State of Indiana, 385 U.S. 76, 81, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966) (dissenting opinion). Petitioner, pro se, has injected these questions for the first time into the federal proceedings.
These issues have not been briefed by either counsel nor considered by the district court below. Of more importance, however, the district court file and the Iowa Supreme Court’s opinion reflect that these questions were not raised before the Iowa courts. These questions are far-reaching and again relate to sensitive federal-state relationships. They are essentially difficult federal constitutional questions, but this is a state prisoner and wherever possible these issues should initially be presented to the state court through available post-conviction remedies. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); cf. Roach v. Bennett, 392 F.2d 743 (8 Cir. 1968). I feel in the instant case this has not yet been done.4
*285I would therefore affirm the denial below for the further reason that petitioner has yet to exhaust his state remedies.
. On January 2, 1968, petitioner moved for appointment of new counsel in this court on the ground that appointed counsel was not raising the proper issues or authority in his appellate brief. This court denied petitioner’s motion on January 5, 1968. Under the circumstances, with no intended reflection on appointed counsel, I feel it incumbent upon this court to point out why we do not reach the merits of the claim raised by petitioner pro se.
. The problem of the blank verdict on the habitual criminal charge has been faced by other courts. State v. Satterfield, 336 S.W.2d 509, 516 (Mo.1960) (holding that the blank forms “amounted to a rejection by the jury of the hypothesis of the appellant’s prior convictions”); United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844, 856-63 (2 Cir. 1965); People v. McCarthy, 110 N.Y. 309, 314, 18 N.E. 128, 129 (1888). The general consensus is that it means either the state failed to prove the charge, or that the jury found the accused innocent of the same. The problem of the special verdict form (vis-a-vis interrogatory) is that the jury may be exercising their discretion and perhaps sympathy in not wanting to punish unduly the accused by such a special finding.
. Compare Circuit Judge Marshall’s (now Mr. Justice Marshall) statement in Wilkins:
“Hence, New York, conditions the power of the state to reprosecute upon a successful appeal by the accused from the conviction for lesser charge, or, to look at it from the view of the accused, under New York law, his right to appeal from a conviction for the lesser degree can only be exercised at the risk of being reprosecuted for the greater charge as well as the lesser charge if the appeal is successful, even though the state had once failed to obtain a conviction on the greater charge. This places the accused in a dilemma which was described by the Supreme Court in Green v. United States, supra, 355 U.S. at 193, 78 S.Ct. 221, as ‘incredible,’ and which is, to be sure, no less incredible because it was devised by New York rather than the federal government. By placing this unconscionable premium upon a successful appeal by an accused, a vital societal interest is threatened — assuring that liberty shall not be *284deprived without a trial free from legal error prejudicing the accused’s substantial rights.
“To permit the state to reprosecute the accused for the greater charge in these circumstances is to provide the prosecution with an opportunity ‘to do better a second time,’ not because it had been prejudiced by substantial legal error the first time, but because the accused had been prejudiced by substantial legal errors and because these errors had been perceived on appeal.” 348 F.2d at 859, 860.
. In State v. Kneeskern, 203 Iowa 929, 210 N.W. 465 (1926), the Iowa court held that it was not violative of due process to re-sentence a prisoner for death upon retrial of a case, when he first was sentenced to life. The Supreme Court of New Jersey recently commented:
“Only a few cases are to be found throughout the country which have considered the problem. Iowa (State v. Kneeskern, 203 Iowa 929, 210 N.W. 465, 473 (1926)) reached a result at odds with our present holding and in conflict with that expressed in People v. Henderson, supra. An early Florida case (Mann v. State, 23 Fla. 610, 3 So. 207, 211 (1877)) likewise seems opposed. Both states dealt with the situation long before the United States Supreme Court spoke so strongly in Green v. United States, supra. Whatever the rule elsewhere, in our judgment, the view we now take represents the only procedural standard consistent with the just administration of the criminal law.” State v. Wolf, 46 N.J. 201, 216 A.2d 586, 591, 12 A.L.R.3d 970 (1966).
I do not imply Kneeskern is wrong or even necessarily applicable to the present facts. In fact, I have trouble making a pegboard fit of the instant ease to either the facts of Oreen, supra (different degrees of offenses) or to Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) (different punishment for same offense); or perhaps there no longer exists distinction between the two as Justice Traynor urges in the HenSerson *285case and therefore it would not matter as long as the instant facts fall within the boundaries of the two. See Beardslee v. United States, supra. In any event, these are questions, “consistent with comity,” which the state court should have “the opportunity to decide in the first instance. * * *” Giles v. State of Maryland, 386 U.S. 66, 81, 87 S.Ot. 793, 800, 17 L.Ed.2d 737 (1967).