(dissenting).
In our opinion at 378 F.2d 398 (1967)1 this court held that items seized during a search of Gockley’s residence made without a search warrant, nonetheless were admissible in evidence as validly seized since Gockley had consented to the search. This issue is no longer before us on the instant appeal.
Other issues remained however for determination and these are in the singularly sensitive area of comity between state and federal tribunals in relation to Section 2254, Title 28, U.S.C.
It was alleged by Gockley that two statements given by him to state authorities through his prolonged detention, statements which were partially incriminating, partially exculpatory, and in some particulars contradictory, were involuntary and were “pressed” from him by repeated and prolonged examinations by the police. The respondent insists that Gockley waived any right to have the statements excluded because his counsel made no objection to the first of the statements and did not object in any substantial way to the second statement.2 We ruled that the issue of waiver was to be decided on remand and we further stated that if the court below found no waiver of any constitutional right on Goekley’s part it would then be necessary to consider and decide whether due process of law had been denied him. We vacated the judgment and remanded “for further proceedings consistent with * * [our] opinion.”3
The court below on remand correctly decided that there had been no waiver by Gockley of his constitutional right to a determination of whether his statements were voluntarily made, but the court below did not decide the issue of the voluntariness of the statements but instead “remanded” the case to the state courts to decide that issue as provided by the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1, et seq4 See *221276 F.Supp. 748 (1967). Gockley then took the appeal presently at bar.
Gockley’s trial in the Court of Oyer and Terminer of Berks County began on September 18, 1961 and was concluded within a few days thereafter. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), had not yet been decided. In Jackson, the Supreme Court held that a habeas corpus petitioner should have a state court hearing on the issue of the voluntariness of his confession by a body other than the one trying his guilt or innocence and that if it be determined at such hearing that the confession was involuntary a new trial at which the confession is excluded is necessary. Id. at 391-396, 84 S.Ct. 1774.5 See also Fay v. Noia, 372 U.S. 391, 438-440, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The court below held that Gockley had not waived his right to have determined the issue of the voluntariness of his statements. See 276 F.Supp. at 751-753. The principle of Jackson has been applied retroactively, as the court below stated. See Senk v. Pennsylvania, 378 U.S. 562, 84 S.Ct. 1928, 12 L.Ed.2d 1039 (1964) and Oister v. Pennsylvania, 378 U.S. 568, 84 S.Ct. 1926, 12 L.Ed.2d 1038 (1964). The court below stated that: “The rule enunciated in Jackson is that before a statement may be admitted in evidence there must be a preliminary determination by the court or a jury other than the trial jury that the statement is voluntary. Pennsylvania’s procedure at the time of Gockley’s trial was similar to that proscribed in Jackson. Unless a confession was clearly coerced, the confession, including the question of its voluntariness, was required to be submitted to the jury. On the basis of what Gockley had related to counsel concerning the circumstances surrounding the giving of the statements, counsel concluded that the statements were not clearly involuntary, and, therefore were required to be submitted to the jury. Counsel could not have anticipated the Supreme Court’s holding in Jackson. Under the then state of the law an objection to the admissibility of the statements would have been fruitless and perhaps even harmful to Gockley’s case. Counsel’s choice was effectively limited to attacking voluntariness before the same jury that was to consider the eventual question of Gockley’s guilt or innocence. From Binder’s [counsel for Gockley] testimony, it is apparent that if counsel could have had the issue of voluntariness determined preliminarily by the trial judge, out of the presence of the jury, he would have done so. Since that right did not exist prior to Jackson, Gockley and his counsel cannot be said to have intelligently waived it, or to have deliberately bypassed it. See Ledbetter v. Warden, Maryland Penitentiary, 368 F.2d 490 (4 Cir. 1966).” See also Smith v. Yeager, 393 U.S. 122, 89 S.Ct. 277, 21 L.Ed.2d 246 (1968). An examination of the record demonstrates that this ruling of the district court is correct as a matter of law. On this point the majority opinion and the present writer are in accord.
The Pennsylvania Post Conviction Hearing Act was not effective by its terms until March 1, 1966. Gockley has filed no petition for habeas corpus in the Pennsylvania state courts seeking to set aside his conviction of second degree murder. The habeas corpus petition was *222filed in the court below on August 7, 1964. The court entered its first judgment6 denying the writ on October 12, 1964. Our judgment of remand on our opinion, 378 F.2d supra, was entered on May 15, 1967. Our order of remand was received by the court below on July 17, 1967. The trial court’s final order from which the present appeal was taken was filed November 29, 1967. The Pennsylvania Post Conviction Hearing Act was not before the court below at the time of its first adjudication on the present petition on October 12,1964 since that statute had not yet been enacted, but at the time of our judgment of remand on May 15, 1967 the Act was in effect.
The present writer also agrees with the majority view that on consideration of the allegations set up in Gockley’s petition for habeas corpus an evidentiary hearing is required.7 The narrow issue presented on which the majority and I differ is in what court, state or federal, should that hearing be had. The Commonwealth relies in. large part upon the decision of this court in United States ex rel. Singer v. Myers, 384 F.2d 279 (1967), in which *223we held that Singer had available to him the Pennsylvania Post Conviction Hearing Act and since he had not availed himself of it he had not exhausted his state remedies. See United States v. Myers, 260 F.Supp. 91 (E.D.Pa.1966). See also United States ex rel. Gockley v. Myers, supra, 276 F.Supp. at 752-753. The Supreme Court, however, in Singer v. Myers, 392 U.S. 647, 88 S.Ct. 2307, 20 L. Ed.2d 1358 (1968) reversed our judgment per curiam simply citing Jackson v. Denno, supra, and Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967). The Supreme Court in Singer v. Myers did not state specifically that Singer’s rights should not be decided by a state tribunal but in view of the terms of the opinion reversed it appears that the Supreme Court did so indicate.
In Roberts v. LaVallee the Supreme Court indicated that a single question, purely one of federal law, should be determined by the federal district court for the purposes of convenience and the saving of time. Also in Roberts, 389 U.S. at 42-43, 88 S.Ct. 194, 196, reference was made to Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), where the application of 28 U.S.C. § 2254 is fully discussed.8 In Brown v. Allen, 344 U.S. at 449-450, 73 S.Ct. 397, the Court speaks of the three bases described by Judge Maris when he presented the Judicial Conference draft of Section 2254 to the Senate Judiciary Subcommittee.9 The Subcommittee adopted the first two grounds set out in the draft, i. e., “(1) that the applicant had exhausted the remedies available in the courts of the state, or (2) where there was no adequate remedy available in such courts * * *»
In Jackson v. Denno the issue was the voluntariness of Jackson’s confession. This, of course, presented a mixed question of fact and law and the State of New York has a strong interest in enforcing its felony laws.
Does Gockley’s case fall clearly within the provisions of Section 2254, Title 28, U.S.C.? In connection with this point I state that I cannot see how the fact that the Pennsylvania Post Conviction Hearing Act did not become effective until March 1, 1966, after the first decision in the court below on Gockley’s petition for habeas corpus, is relevant to the issue of whether an evidentiary hearing must be held in a state court or in a federal tribunal.
By reversing our ruling in Singer v. Myers and citing both Jackson v. Denno (involving an important interest of the state) and Roberts v. LaVallee (involving only a question of long settled federal law in which the state had no substantial interest) the Supreme Court indicated, I think, the course to be followed here; viz., an issue of the voluntariness of a confession should be decided by a state-court “body”. See Jackson v. Denno, 378 U.S. at 391-396, 84 S.Ct. 1774. But there is what may be described as a “condition *224subsequent” that may deprive the state tribunal of jurisdiction and may permit the interposition of a federal court. That condition subsequent is the refusal of the state tribunals and legislatures to afford merited post-conviction relief. The principle of Section 2254 is still in play.
The views just expressed are fortified, I think, by the per curiam opinion of the Supreme Court in Smith v. Yeager, supra, for Smith had exhausted his state remedies and the Supreme Court directed that the issues presented might be decided by a United States District Court. Specifically the Supreme Court stated that the issues of waiver by Smith and the voluntariness of his inculpatory statements “may be considered by the District Court.”10
I reiterate that comity requires the determination of Gockley’s rights by a Commonwealth tribunal. The Supreme Court of the United States and the lower federal courts for a long period of time have taught the desirability of the States enacting proper post conviction remedies and the importance of prompt use being made of them. The Pennsylvania Post Conviction Hearing Act would fully protect Gockley’s rights. The majority seemingly agree with this view but apparently decide the case on what can perhaps be described appropriately as “unusual circumstances”. But the Supreme Court has fashioned no “unusual-circumstances” exception nor has the majority suggested any authority for such an exception. Moreover, what are the unusual circumstances which would justify such a deviation from the rule of comity? Our decision at 378 F.2d 398 remanding to the district court was handed down on May 15, 1967, nearly two years ago. An inappropriate appointment of counsel by this court for Gockley caused a delay of eighteen months. But surely the Commonwealth should not be charged with the burden of these delays for it was not responsible for them. Of paramount importance to me, however, is the fact that no Commonwealth post conviction remedy has been sought and the majority necessarily deprives the Commonwealth of any opportunity to exercise its jurisdiction in a matter of paramount importance to it, the enforcement of its criminal statutes.11 Such a result seems hardly to comport with the friendly civility which should exist between the United States and the States.
I would affirm the Court below and must therefore respectfully dissent.
. Gockley was convicted of the second degree murder of Clement J. Smith and sentenced to imprisonment for not less than ten and not more than twenty years. The facts are reviewed thoroughly in Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963). Gockley was indicted and tried for Smith’s death at No. 167 March Term 1961, Court of Oyer and Terminer, Berks County, Pa.
It is insisted by Gockley’s counsel, as we understand his contention, that at Goekley’s trial for forgery a confession was admitted and that therefore he has exhausted his state remedies. This position is untenable. However as the court below found Gockley exhausted his state remedies as they existed prior to the Pennsylvania Post Conviction Hearing Act. He filed the instant habeas corpus proceeding on August 7, 1964.
. Gockley’s assertion was that most of the second statement was irrelevant to the death of Clement Smith and related primarily to the killing of Mabel Klein, whom Gockley was also accused of murdering. The Court of Oyer and Terminer deemed that certain portions of the statement did relate to the death of Clement Smith and in substance Gockley’s counsel agreed to the admission of what were in fact pertinent portions of the statement relating to tlie death of Clement Smith. See Transcript of the trial in the Court of Oyer and Terminer, pp. 183-84, 195.
. We stated, 378 F.2d at 401: “We have mentioned the failure of the court below in dismissing the appellant’s petition, to allude to the issue of the admissibility of the appellant’s statements as raised by his petition, much less to decide whether there was an effective waiver of any right to have this evidence excluded. We think the issue of waiver must be decided, after opportunity is afforded to the parties to supplement the record on this question if they so desire. And if the court finds no waiver of constitutional right to challenge the admission of the petitioner’s statements it will then be necessary to consider and decide whether due process of law was denied by the use of this evidence against the accused.”
. There is no law which authorizes a remand of a federal habeas corpus proceeding to a state court. The final order of the court below, that of December 28, 1967, states that it is “Ordered that the Petition for Writ of Habeas Corpus be and it is hereby Denied and the said Edwin W. Gockley is remanded to the state courts to litigate the issue of voluntariness through the procedures provided by the *221Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1, et seq.” That portion of the order which states that Gock-ley is remanded to the Pennsylvania state courts in order to relitigate the issue of voluntariness may be regarded as sur-plusage. There is no question that the relief sought by him by way of habeas corpus was denied by the court below. Cf. Williams v. Murdoch, 350 F.2d 840 (3 Cir. 1965). See also Brown v. Brough, 248 F.Supp. 342, 344 (D.Md.1965). The order denying the writ meets the requirements of 28 U.S.C. § 1291. This court may determine the merits or the instant appeal.
. Mr. Justice White stated, 378 U.S. at 393, 84 S.Ct. at 1789: “[W]e think that the further procedings to which Jackson is entitled should occur initially in the state courts rather than in the federal habeas corpus court.”
. No opinion reported for publication.
. Gockley’s counsel makes the following statement on his brief in chief: “7. The Commonwealth does not contest the question of voluntariness and concedes that the confessions and statements were the result of constitutionally impermissible interrogation.” This contention of a concession is based on a statement in the Commonwealth’s brief in the court below at the second hearing on the petition for habeas corpus, i. e., in the case reported at 276 F.Supp. 748. In its brief the Commonwealth stated as follows: “Finally, the Commonwealth notes that in the brief prepared by Relator there are many cases cited. The Commonwealth has no argument with the propositions of law stated in Relator’s Brief and in fact agrees with the propositions of law set forth therein. If Your Honorable Court finds that the only reason that trial counsel did not object to the admissibility of the statement and therefore did not waive Relator’s rights was for the reason that such an objection would be fruitless, the Commonwealth agrees that Edwin W. Gockley would be entitled to a new trial.” (Emphasis in original.)
The Commonwealth concedes that it made this statement but points out that the final sentence of the quoted paragraph stated: “However, the Commonwealth as many times stated above, cannot accept that finding when there is not credible evidence in support thereof.” At the end of the Commonwealth’s brief a star note states: “Relator in his brief has also raised a second question as to whether or not the confessions wore coerced. The Commonwealth believes that it has sot forth sufficient argument under Question I of this brief to reiterate its position on this question. This case was tried in 1961 and the question of coercion must be decided by the applicable law of 1961. The Commonwealth here mentions only the fact that Relator in his brief is under the impression that the defendant was given no warnings of any nature, all of which is refuted by the trial record.”
The court below, as stated, found that the reason that Gockley’s counsel at his state trial did not object to the admissibility of the statement and did not waive Gockley’s rights was for the reason that such an objection would be fruitless under the state of the law as it then existed. The court below did not state that its only reason for so concluding was the state of the then existing law but it gave no other reason for its decision on that issue.
The last quotation, supra, from the Commonwealth’s brief seems to have no relevancy to the issue set out in the first quotation, and the second quotation, supra, seems to have but small relevancy if any. I will not indulge in semantical exercises in this already too lengthy opinion for whatever may have been the intent of the Commonwealth’s counsel in making this seeming concession, I conclude as I have stated that an evidentiary hearing is necessary. A substantial constitutional issue is involved and a further and fuller record should be developed by way of an adequate evidentiary hearing. See the authorities cited in the dissenting opinion in United States v. Yeager, 395 F.2d 245, 255-256 (3 Cir. 1968).
Gockley has moved pursuant to Appellate Rule 10(e), 28 U.S.C., to have the record on the instant appeal enlarged by adding thereto its brief in the court below filed on the second hearing on the habeas petition. The Commonwealth has filed an opposition to Gockley’s motion. I would grant Gockley’s motion in order that this issue may be fully before the reviewing Court if there be an application for certiorari.
. The Supreme Court gtated: “In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), we considered the statutory requirement, under 28 U.S.C. § 2254 that a petitioner exhaust his state remedies before applying for federal habeas corpus relief. We concluded that Congress had not intended ‘to require repetitious applications to state courts.’ 344 U.S., at 449, n. 3, [73 S.Ct. 397.] We declined to rule that the mere possibility of a successful application to the state courts was sufficient to bar federal relief. Such a rule would severely limit the scope of the federal habeas corpus statute.
“The observations made in the Broten case apply here. Petitioner has already thoroughly exhausted his state remedies, as the Court of Appeals recognized. Still more state litigation would be both unnecessarily time-consuming and otherwise burdensome. This is not a case in which there is any substantial state interest in ruling once again on petitioner’s case. We can conceive of no reason why the State would wish to burden its judicial calendar with a narrow issue the resolution of which is predetermined by established federal principles.”
. Judge Albert B. Maris of this court was a member of a Judicial Conference committee to present the Judicial Conference draft of Section 2254, Title 28 U.S.C., to the Senate Judiciary Subcommittee.
. See the dissenting opinion in United States v. Yeager, 395 F.2d 245, 247-257 (3 Oir. 1968). In particular examine note 1 cited to the text of that opinion at 247.
. I add that at the time of our remand at 378 F.2d 398 there appears to have been no reason why a Commonwealth court should not have decided the issue of waiver as well as that of the voluntariness of Gockley’s statements.