(dissenting):
I take strong exception to the conclusion reached by the majority.
Appellant Cannon, after pre-trial Huntley and Wade hearings in the state court (New York Supreme Court), which determined the propriety of Cannon’s oral confession and the victim’s identification of him at a line-up, respectively, was convicted by a state court jury of first degree rape. After his conviction, further proceedings were ordered by the Appellate Division of the New York Supreme Court to determine whether Cannon had waived his right to counsel at the line-up.1 Waiver having been found,2 the Appellate Division affirmed his conviction,3 and review was denied by the Court of Appeals. Thereafter, Cannon twice petitioned the United States District Court for the Western District of New York for habeas corpus relief. Each of these petitions was denied by a federal district judge. Cannon then appealed from those orders. This Court *706rejected his challenge to the prosecutor’s reference, at trial, to certain typewritten confessions made by Cannon; the issue of suggestiveness of the line-up was remanded to the District Court to determine whether any of the line-up participants, aside from Cannon, were dressed in green shirts.4
More than six years after the termination of the trial proceeding which resulted in Cannon’s conviction — and almost six and a half years after the original line-up was held — the district judge decided that the line-up had been impermissibly suggestive and that there had been no independent basis for Cannon’s identification at trial. This finding flies in the face of all the judicial determinations which preceded it. Two aspects of the district court’s action, and the sanction which it finds here, warrant comment. They are: disregard for the earlier state proceedings; and an equivalent disregard for the jury verdict, which demonstrated the jury’s acceptance of the prosecutor’s theory establishing an independent basis for identification of Cannon as Mrs. Rippel’s assailant.
The discussion which follows focuses on the first mentioned factor, because it is the disregard of legitimate and proper state proceedings which I find most disturbing in this case.
I.
The state court considered the issue of taint when it conducted its pre-trial Wade hearing six years ago. After hearing testimony from the victim and from Mahoney, the trial judge upheld the identification of Cannon made by Mrs. Rippel at the line-up. Cannon’s later conviction was affirmed by the Appellate Division and review was denied by the New York Court of Appeals. Both of these appellate courts permitted the conviction to stand on the basis of the trial record which included the Wade findings. There is no suggestion that the proceedings in the state courts were irregular, or conducted in bad faith. There is similarly no suggestion that the trial judge abused his discretion or made clearly erroneous findings at the Wade hearing. This Court’s comment, when it remanded Cannon’s petition to the district court, was that further proceedings were necessary because the record below, insofar as the Wade determination was concerned, struck this Court as ambiguous.
Upon remand the district court in effect, proceeded de novo and ignoring all of the state court proceedings — including the conclusions of the state trial judge who considered testimony taken within four months after the crime occurred— the district court granted Cannon’s petition based upon the district judge’s disinclination to believe Detective Mahoney’s testimony that at least one other line-up participant was wearing a shirt similar to Cannon’s. This was not due to any substantial inconsistencies between 'the earlier and later testimony elicited from Mahoney; instead, it would appear that Mahoney simply failed to strike the district judge as a credible witness.
It should be emphasized, first, that Mahoney’s original testimony at the Wade hearing and at trial was accepted by judge and jury. Second, Mahoney’s recent appearance on the witness stand in federal court occurred more than six years after his original state court testimony. In this light, I find unjustified the district court’s explanation for its disbelief of Mahoney’s testimony by pointing to his reliance on regular police procedures when he attempted to reconstruct the line-up, and by referring to his cloudy memory respecting detail. 388 F.Supp. at 1203.
Similarly, the district court’s adoption of a “presumption” that certain individuals not produced as witnesses by the Government would have testified unfavorably to the Government’s cause, disregards the trial record in this case. Only two witnesses were heard at the original Wade hearing: Mahoney, and Mrs. Rippel. Since Mrs. Rippel’s testimony at *707that hearing revealed that she could not remember the particulars of dress respecting the other line-up participants,5 the state court necessarily relied upon Mahoney insofar as the description of the participants’ clothing was concerned. None of the several state tribunals which subsequently examined Cannon’s conviction put the state on any kind of notice that — notwithstanding the trial judge’s satisfaction with the evidence given at the Wade hearing — the state had in fact been remiss in failing to produce other witnesses, presumably for the purpose of corroborating Mahoney. To conclude, six years after the fact, that the state should have divined the proclivities of the federal court respecting proper Wade evidence is entirely unreasonable. The district court apparently did not look closely at the earlier record, in view of its evident puzzlement at the state’s failure to call either the victim6 or other individuals who “have sided with the state in the past.”7 388 F.Supp. at 1204. Yet that court decided to overturn an entire chain of decisions affirming Cannon’s conviction on the basis of the district court’s own “synthesis” of the case record and the hearing upon remand, at which Mahoney substantially corroborated his own testimony given six years before and adopted by the state court.
The overturning of a conviction which is collaterally attacked by a defendant is not to be lightly undertaken. . This Court has specifically acknowledged the Supreme Court’s admonition in Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), wjth respect to the presumed regularity of judgments.
It is hornbook law that a collateral attack on a criminal conviction must overcome the threshold hurdle that the challenged judgment carries with it a presumption of regularity and that the burden of proof is on the party seeking relief. Williams v. United States, 481 F.2d 339, 346 (2d Cir.) cert. denied, 414 U.S. 1010, 94 S.Ct. 373, 38 L.Ed.2d 248 (1973).
In this case the presumption was particularly strong in view of the number of judges who successively had the record of the case before them, and who uniformly rejected Cannon’s challenges to the judgment of conviction entered against him.. Cannon can scarcely be said to have overcome the presumption and shouldered his burden by virtue of the district court’s skeptical views about one of the state’s witnesses.
Habeas corpus relief is an extraordinary remedy for extraordinary deprivation of rights. Cannon received a full measure of due process in the state courts, and does not by any stretch of the imagination come before this Court deprived of his rights or of a fair hearing before a disinterested forum. Nor is this an in-' stance in which an innocent man is battling to secure a just determination in his case. Cannon made several confessions to police officials; certain of these were admissible against him at trial, and they unmistakably supported the charges of first degree rape brought against him. Cannon was properly convicted after pre-trial and trial proceedings that were procedurally and substantively fair and impartially conducted. His post-trial efforts collaterally to attack the judgment of conviction strike me as so much jousting with the judicial process. Judge Learned Hand’s apt comment in this regard might well be heeded:
Justice is not a game; there is no constitutional right to “throw dust in a juryman’s eyes, or hoodwink a judge who is not overwise”. United States *708v. Paglia, 190 F.2d 445, 447-8 (2d Cir. 1951).
This Court should no more bow to-Cannon’s gamesmanship than it should sanction the district court’s action rejecting the earlier state court proceedings as so much obiter dicta. By doing both, the Court capitulates to a claim for due process that is as unpersuasive as it is disingenuous.
II.
The remaining ground for my exception to the majority’s opinion may be briefly stated.
The theory of the case, as presented by the prosecution at trial, was that Mrs. Rippel, while walking home alone, was followed for some distance by a man who, after appearing and disappearing several times, finally grabbed her from behind and raped her. Mrs. Rippel had the opportunity to observe the face and figure of the man who was following her; she did not have the opportunity to observe her assailant from the time she was actually seized from behind. The inference which the jury was asked to draw, and which they did draw, was that the man who followed Mrs. Rippel and the man who raped her were one and the same. Her observations of her assailant prior to the attack formed a sufficient basis for independent identification at trial. With the benefit of 20/20 hindsight, one might criticize the state for failing to exploit that basis to its fullest extent at trial, and instead relying more heavily on a line-up identification which, we are now informed, was impermissibly suggestive. However that may be, the testimony at trial demonstrates that an independent basis was shown. By holding to the contrary, this Court has in effect abrogated the fact-finding function of the jury and replaced the jury’s determination with its own.
If the majority opinion is to prevail, then our federal judicial system might consider one of two procedures to expedite the processing of criminal cases and to avoid needless expenditure of judicial time: abolish by federal court decree state forums for the trial of serious criminal offenses; or, alternatively, grant to every such defendant convicted in a state tribunal a trial de novo in the federal courts. Where, as here, the state procedures for the protection of a defendant’s rights have been meticulously followed, I cannot justify federal intrusion under the facts and circumstances set before us in this case.
I would reverse the district court’s decision and deny the writ.
. People v. Cannon, 33 A.D.2d 641, 305 N.Y.S.2d 106 (4th Dept. 1969).
. People v. Cannon, 61 Misc.2d 171, 305 N.Y.S.2d 108 (Monroe County Ct.1969).
. People v. Cannon, 33 A.D.2d 1104, 309 N.Y.S.2d 894 (4th Dept. 1970).
. United States ex rel. Cannon v. Montanye, 486 F.2d 263 (2d Cir. 1973).
. Tr. at 108.
. As already mentioned, supra at n. 5, the victim would not in fact have been helpful.
. How exactly these individuals sided with the State on the issue of the line-up is not clear. Neither Lieutenant Reiss nor Detective Funk had testified at the original Wade hearing. Although both men gave testimony at Cannon’s trial, none of it related to the line-up. Tr. pp. 201-221, 243-265. Detective McDonald, whose presence at the line-up was noted by Mahoney, Proceedings of July 12, 1974, Tr. pp. 35-36, had never been a witness in the case at all.