(concurring and dissenting):
I
I concur in the opinion of the court so far as it concerns the period following October 2, 1972 until May 8, 1973.
II
I respectfully dissent from the opinion of the court as it in any wise considers that the period from May 24, 1972 to September 13, 1972 should be credited because of a claim of indigency and resulting failure to make bond.
Since the matter was not raised in the district court, we should not first consider the merits of the claim in this court but at most remand to the district court for reconsideration.
But, in all events, the claim for credit on the state sentence for the period from May 24, 1972 until October 2, 1972 on account of indigency has never been considered by any state court. The petitioner has not exhausted his state remedies. 28 U.S.C. § 2254(b).
Nowhere in the petition for habeas corpus filed in the federal court is any claim made that the petitioner was prevented by indigency from making bond for the federal offense so that he could spend his time awaiting the federal trial in state confinement, thereby receiving credit on his state sentence. The petition for habeas corpus in the district court shows that the petition in the state court only raised “[t]he same ground as is raised in the present petition,” and a reading of the petition does not even intimate the ground had been considered by any court, state or federal, until the matter was raised here in petitioner’s brief.
In the case of Smith v. Cox, 435 F.2d 453 (1970), a more aggravated situation from the prisoner’s viewpoint was presented. There, the claim was that the prisoner had been sentenced by a mentally incompetent judge, but the “state courts ha[d] not considered the issue on its merits.” 435 F.2d at 460. We remanded the case to the district court to “stay the proceeding a reasonable period to enable petitioner to attempt to litigate these questions in the Virginia courts.” 435 F.2d at 460. In the event the Virginia courts would not consider the issue, or if the issue were considered by them unfavorably, we then directed the district court to “conduct such further proceedings as may be appropriate.” 435 F.2d at 460.
On petition for certiorari, sub nom. Slayton v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971), in a per cu-riam opinion, the Supreme Court vacated our judgment for proceedings consistent with its opinion, the operative parts of which follow:
“But, having determined that state remedies had not been exhausted, the Court of Appeals would have better served the policy of the statute had it avoided any implication as to the merits of so delicate a subject. Further, absent special circumstances, cf. Nelson v. George, 399 U.S. 224 [90 S.Ct. 1963, 26 L.Ed.2d 578] (1970), Wade v. Wilson, 396 U.S. 282 [90 S.Ct. 501, 24 L.Ed.2d 470] (1970), rather than ordering retention of the case on the District Court’s docket, the Court of Appeals should simply have vacated the judgment of the lower court and directed dismissal of the petition for *1070failure to exhaust state remedies.” 404 U.S. at 54, 92 S.Ct. at 174.
The majority opinion goes further here than Slayton v. Smith permits, for it not only remands but directs consideration of the merits by the district court, completely bypassing the state courts. Action by this court not so far reaching was expressly disapproved in Slayton v. Smith.
The case here should be controlled by Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), which, referring to Slayton v. Smith, followed it by only a month.
In Picard, a claim concerning the validity of a conviction in a Massachusetts state court was attacked by federal ha-beas corpus. The petitioner claimed that the amending procedures of a “John Doe” indictment had not been followed, and, because of the faulty amendment, he had not been lawfully indicted and thus his conviction deprived him of equal protection of the laws.
In the Massachusetts court, he had presented the facts, but his federal claim there was that the Fifth Amendment requirement of indictment by grand jury should apply to the States. It is interesting to note that in Picard, as here, the federal claim asserted in the court of appeals was not asserted in the district court. The opinion of the court states:
“The Court of Appeals acknowledged that respondent had not attacked his conviction on the equal protection ground, either in the state courts or in his federal habeas petition:
‘[Respondent] did not present the constitutional question to the Massachusetts court in the particular focus in which this opinion is directed. We suggested it when the case reached us, and invited the Commonwealth to file a supplemental brief. Not unnaturally its first contention was to assert that [respondent] had not exhausted his state remedy . . . .’ Ibid.” 404 U.S. 270, 271, 92 S.Ct. 509, 510.
Thus, we see the procedural aspects in Picard were even stronger for the petitioner than are those here. In Picard, the fact situation was fully presented to the court of appeals and to the state court, while here it has not been done (indigency as the reason for failure to give bond has not been ascertained), and the court of appeals suggested briefing of the issue not raised below or in the state court, while here its briefing was spontaneous.
The court of appeals in Picard reversed the district court which had dismissed the petition, and was in turn reversed by the Supreme Court, which held the state’s objection that the petitioner had not exhausted state remedies should have been sustained.
With that background, quoted portions of the opinion are significant:
“We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent ‘unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution,’ Ex parte Royall, supra, 117 U.S. [241], at 251 [6 S.Ct. 734, 29 L.Ed. 868], it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.” 404 U.S. at 275-6, 92 S.Ct. at 512.
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“The question here is simply whether, on the record and argument before it, *1071the Massachusetts Supreme Judicial Court had a fair opportunity to consider the equal protection claim and to correct that asserted constitutional defect in respondent’s conviction. We think not.” 404 U.S. at 276, 92 S.Ct. at 513.
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“To be sure, respondent presented all the facts. Yet the constitutional claim the Court of Appeals found inherent in those facts was never brought to the attention of the state courts.” 404 U.S. at 277, 92 S.Ct. at 513.
In the light of Slayton v. Smith and Picard v. Connor, I am unable to perceive how this court has any authority to decide the question as to whether Ange should be credited for the time from May of 1972 until September of that year because he could not make the federal bond because of indigency. Neither the fact of his indigency nor the legal claim in light of the indigency was brought to the attention of either the state court or the district court, but sprang full blown from his brief in this court.
As I would not consider the claim because of failure to exhaust state remedies, I do not express an opinion on its merits, much as the dictum of the majority invites response. A single question, though, indicates only to a small extent the unanswered problems suggested by the majority opinion. Since petitioner has already received credit for the May-September 1972 period on his federal sentence, is he to receive credit for the same period on his state sentence although the crimes were unrelated and he was never in state custody during that period except for a few days for trial, for which he has already received credit?