concur, dissenting.
I respectfully dissent. I do not agree with the majority’s conclusion that the material facts were not adequately developed at the prior state court hearings. This conclusion flies in the teeth of the Supreme Court’s holding in this case that the state proceedings were procedurally adequate and substantively acceptable. Swenson v. Stidham, 409 U.S. 224, 229-230, 93 S.Ct. 359, 34 L.Ed.2d 431 (1972). Thus the state court’s findings are entitled to a presumption of correctness with the burden being upon Stidham to establish by convincing evidence that the factual determination by the state court was erroneous. 28 U.S.C. § 2254(d); LaVallee v. Delle Rose, 410 U.S. 690, 695, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). The majority’s conclusion would strip the state court findings of this presumption. This might be understandable had the determination come at some prior stage in this litigation; coming as it does now, after the ease has been considered by the District Court, twice by panels of this court, and once by the Supreme Court, with no indication of the inadequacy of the facts developed in the state hearings, it defies understanding. Stidham, a state prisoner, is to have not merely his day in court but years in the federal courts engaged in a never-ending search for error.
As I have stated before,1 this is a case where the District Court could be reasonably certain that the state court would have granted relief if it had believed Stidham’s allegations. Cf. LaVallee v. Delle Rose, supra at 694-695, 93 S.Ct. 1203. The matter in question is whether the state court could be justified in rejecting Stidham’s allegations of coercion. In the light of his continuing protestations of innocence in the face of the substantial evidence of his guilt exclusive of the confession; his continuing reliance on his testimony of beatings and torture directly contradicted by six state officers and not accepted by any court; his testimony of deprivations of food and water before his confession 13 years after the fact when at trial less than one year after the fact he testified with specificity in regard to deprivations occurring after the confession with no mention of these newly asserted deprivations; and his assertion of a weight loss of 25 pounds as a consequence of these deprivations, an assertion which, although uncontradicted in the record, even the previous panel majority could not accept, the record fully justifies the state court’s rejection of his testimony.
Where the petitioner’s testimony is rejected by the state court after a procedurally adequate and substantively acceptable hearing, we are bound to deny the petition for relief. See United States ex rel. LaVallee v. Delle Rose, 468 F.2d 1288, 1290 (2d Cir. 1972), rev’d on other grounds, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973).2
The matters upon which the District Court is directed to make specific findings are in the main irrelevant and immaterial to a determination of the voluntariness of Stidham’s confession. What has the size of his cell, in which he had been incarcerated for some 21 months, to do with the voluntariness of his confession? It obviously was not a tiger cell. What is material is that the *490state .courts’ finding of voluntariness can only be viewed as a rejection of Stidham’s testimony; this rejection is fully supported by the record of the state court proceedings, both the original trial and 27.26 hearing; and this record was made during hearings the Supreme Court has found to be procedurally adequate and substantively acceptable. As stated previously:
[D]ue regard for the co-equal responsibilities of the state courts in determining constitutional issues and a recognition of their superior ability in this type of case where the state court has seen and heard the witnesses mandate that we accept their resolution of the facts against petitioner.
Stidham v. Swenson, No. 20,685 (8th Cir., filed March 28, 1974) (Slip op. at 13) (Gibson, J. dissenting).
I view the state courts’ proceedings as procedurally adequate and their findings substantively correct and would affirm the finding of the District Court, Stidham v. Swenson, 328 F.Supp. 1291 (W.D.Mo.1970), that Stidham’s confession was voluntary without a remand for an evidentiary hearing.
. Stidham v. Swenson, No. 20,685 (8th Cir., filed March 28, 1974) (Slip op. at 9) (Gibson, J. dissenting).
. This principle was recognized even in the dissent in LaVallee v. Delle Rose, supra 410 U.S. at 700, 93 S.Ct. at 1208.
It is possible, of course, that the state court rejected all of respondent’s testimony as incredible and therefore properly held the confessions voluntary.