specially concurring:
I concur in the result announced for the en banc court in the majority opinion. However, inasmuch as I feel that the court has grappled with issues unnecessary to the decision of this case, I concur without adopting all said for the en banc court.
When the question was asked by the prosecutor which elicited the fact that the petitioner-defendant had only recently returned from a stay in the state penitentiary, defense counsel’s objection was so far off the mark as to amount to no objection at all.1
*169Nine questions later,2 defense counsel moved for a mistrial. No proper objection to this testimony had been stated to the trial judge and certainly not at a time when the trial judge could have protected any right of the defendant sought to be preserved. Nevertheless, on his own motion, the trial judge, in his final instructions to the jury, told the jurors that they should not consider any prior incarceration of the defendant as having any bearing on his guilt or innocence of the crime presently charged.3
We are here concerned only with the constitutionality of the state court proceedings. Rose v. Hodges, 423 U.S. 19, 96 S.Ct. 175, 46 L.Ed.2d 162 (1975); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Smith v. Colman, 528 F.2d 1362 (5th Cir. 1976). Had defense counsel ultimately brought the objection properly to the attention of the trial court, all that the Constitution could require would have been that the testimony be stricken and the jurors properly instructed to disregard it. In the exercise of his discretion, and on his own motion, the trial judge did all that the defendant could have expected the Constitution to have required him to do.
In the case of United States v. Myers, 329 F.2d 280 (3d Cir. 1964), the Third Circuit was confronted with a factual posture nearly identical to the case at bar. In Myers, evidence of the defendant’s prior criminal record was admitted for purposes in addition to its bearing on the defendant’s credibility. The trial judge initially refused to confine the evidence to its permissible use. Later, upon reflection, he reversed his ruling and gave the jury an instruction limiting the use of the evidence to its proper purpose.
In observing that the limiting instruction cured any previous error as to the use of the evidence and in noting the absence of any fundamental unfairness, the court held that the petition “does not raise a question of constitutional dimension and is not a proper subject for relief under federal ha-beas corpus.” 329 F.2d at 284.
The instant case is more compelling in calling for reversal of the District Court for the failure of the petition to allege a claim of constitutional magnitude. Thus without evaluating the effect of the state’s “con*170temporaneous objection” rule and without deciding whether a “deliberate bypass,” Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), or an “inexcusable procedural default,” Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (Powell, J. concurring) occurred or whether the petition fails to show “cause and prejudice,” Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (decided June 23, 1977), I concur in the result reached by the majority.
. Q. How long had Jerry been home, Mrs. Nicholas?
A. For about a month.
Q. For about a month?
*169A. Yes.
Q. He arrived home sometime after April 20th, 1966?
A. He did.
Q. Where had he been?
MR. MOORE: Your Honor, we object to this unless she knows of her own personal knowledge.
THE COURT: I assume she’ll testify of her own personal knowledge.
Q. Where had he been, Mrs. Nicholas?
A. He had been in the penitentiary.
. Q. Where had he been, Mrs. Nicholas?
A. He had been in the penitentiary.
Q. He had not been at Carlsbad, then, with his father, had he?
A. Previously, he had been.
Q. He had gotten out of the penitentiary on the 20th of April, 1966—
MR. GREEN: Your Honor, the Prosecutor is testifying now.
THE COURT: It’s leading and suggestive. Q. Jerry didn’t come home until sometime after the 20th of April, 1966, is that right? A. That’s right.
Q. And he had been down to Huntsville State Prison?
A. Right.
What’s the first thing you said, Mrs. Nicholas, when the officer told you what Jerry had done?
A. He didn’t say for sure that Jerry did it. He took both of my boys’ pictures because he didn’t know who had done it.
Q. Did you bring those pictures with you today?
A. No, sir, I didn’t. He kept two of them and he brought my boy who is in the Marines picture back to me about three weeks later.
Q. I’ll ask you to look through these pictures, if you would, Mrs. Nicholas, and see if you see Jerry’s picture in any of these?
A. Yes.
Q. Which picture is this?
MR. MOORE: Your Honor, at this time, the Defense makes a motion for a mistrial due to the fact that the Prosecutor has brought out the fact that the Defendant was in the penitentiary.
THE COURT: Overruled.
. “You are instructed in this case that certain evidence was admitted before you in regard to the defendant having been convicted of an offense other than the one for which he is now on trial. You are instructed that such evidence cannot be considered against the defendant as any evidence of his guilt, if any, in this case.”