I respectfully dissent. This case was taken en banc for essentially one reason. A United States federal judge had granted a writ of habeas corpus on the ground that petitioner was being held by the State of Florida in violation of the United States Constitution. A panel of this Court refused to reach the merits of an appeal from that writ but reversed on the ground that petitioner had other possible grounds for relief that had not been pursued to exhaustion in the state system. Galtieri v. Wainwright, 545 F.2d 942 (5th Cir. 1977).
with whom THORNBERRY, GODBOLD and MORGAN, Circuit Judges, join, dissenting:
That panel decision was one of a kind. No other case in federal jurisprudence has been found or cited where, the grant of habeas corpus relief on an exhausted claim was reversed without review because unexhausted claims were present. That decision clearly created an issue for en banc consideration.
*376To be sure, we have contrary language in opinions, but unless a new era in the precedential requirements of legal decisions is upon us, no amount of footnoted rhetoric can overcome the fact that in the only three cases found in this Circuit which required the court to face this situation, the grant of habeas corpus relief was reviewed, even though there were unexhausted issues. Moye v. Highsmith, 460 F.2d 1388 (5th Cir. 1972), aff’g Moye v. Georgia, 330 F.Supp. 290 (N.D.Ga.1971); West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), exhaustion issue affirmed en banc, 510 F.2d 363 (5th Cir. 1975), mem.; Lamberti v. Wainwright, 513 F.2d 277 (5th Cir. 1975). The Moye opinion did not discuss the question raised here, but the Court did affirm the district court’s grant of habeas corpus relief, even though the district court expressly noted that petitioner had raised several unexhausted issues.
In West, supra, petitioner had exhausted his state remedies as to the claim on which the district court granted relief, but not on other grounds. Although the opinion stated that ordinarily exhaustion is required on all issues, the Court in fact reviewed the grant of the habeas corpus writ on the merits.
In Lamberti, supra, the Court found the ground for granted relief was not exhausted, which put the district court in direct conflict with the exhaustion rule. Other contentions being interrelated, the district court was directed not to consider the petition until all claims had been exhausted. Our Court reversed the grant of habeas corpus, however, not just because there were unexhausted claims present, but because the claim underlying the writ itself had not been exhausted.
No other federal decision has been cited where contrary action was taken.
To address the precise issue before this Court, realizing that the en banc court writes on a clean slate, I would clearly and unequivocally hold that any time a federal judge has granted habeas corpus relief , reviewable by this Court, we will review that action on appeal even though there are other unexhausted grounds for relief that might be available to the petitioner. Then I would remand the case to the panel to consider the merits of the district court’s action in this case.
If we are constrained to announce some rules not required for the decision of this case, I would follow the flexible rule this Court has taken in the past and leave it to the appellate court’s discretion to review denied claims, even though unexhausted claims were presented below or asserted on appeal. Since the writer has been on this Court it has been the practice to affirm in many instances the denial of relief on such exhausted claims, a practice often buried in our Local Rule 21 practice, because not considered of precedential importance. Enough opinions have been published, however, to reveal that this Court has often followed such a course. See, e. g., Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974) (affirming denial of relief on merits of exhausted claim); Moye v. Highsmith, 460 F.2d 1388 (5th Cir. 1972), aff’g Moye v. Georgia, 330 F.Supp. 290 (N.D.Ga.1971) (affirming grant of relief on exhausted claim); McDonald v. Wainwright, 466 F.2d 1136 (5th Cir. 1972) (affirming denial of relief on merits of exhausted claim); Hill v. Dutton, 440 F.2d 34 (5th Cir.) (affirming denial of relief on merits of exhausted claim), cert. denied, 404 U.S. 845, 92 S.Ct. 145, 30 L.Ed.2d 81 (1971); Lee v. Wiman, 280 F.2d 257, 264 (5th Cir. 1960) (issue-by-issue approach preferred).
As to the procedure to be followed in the district court, I would allow a flexible rule. I would leave it to the sound discretion of the district judge to decide whether the efficiency of his office or the ends of justice are better served by considering exhausted claims asserted in a petition that also contains unexhausted claims. Subject to review only for abuse of discretion, the court is, of course, at liberty to dismiss for failure to exhaust all claims.
The rigid rule argued in Judge Tjoflat’s opinion has been rejected by other circuits. Five circuits have adopted a rigid rule that, in the absence of unusual circumstances, district courts are required to consider ex*377hausted claims even though the petition also contains frivolous claims or unrelated claims to which there has been no exhaustion. Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); United States v. Deegan, 440 F.2d 304, 305 n.1 (2d Cir. 1971); United States v. McMann, 394 F.2d 402 (2d Cir. 1968); United States v. Boyance, 372 F.2d 111 (3d Cir. 1967); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Triplett v. Wyrick, 549 F.2d 57 (8th Cir. 1977); Tyler v. Swenson, 483 F.2d 611, 614 (8th Cir. 1973).
Three circuits have not expressly articulated their rule. These courts have simply passed on the merits of appeals from decisions on claims in mixed petitions. Meeks v. Jago, 548 F.2d 134 (6th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Brown v. Wisconsin State Dept. of Public Welfare, 457 F.2d 257 (7th Cir. 1972); Smith v. Gaffney, 462 F.2d 663 (10th Cir. 1972); Watson v. Patterson, 358 F.2d 297 (10th Cir.), cert. denied, 385 U.S. 876, 87 S.Ct. 153, 17 L.Ed.2d 103 (1966).
The Ninth Circuit has adopted the view that when mixed claims are presented, a district court should not address the merits of any issue until the available state remedies are exhausted as to every issue. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976); James v. Reese, 546 F.2d 325 (9th Cir. 1976). It should be noted that in each of these cases, the district court had dismissed the petition for failure to exhaust all claims. This action was affirmed by the Ninth Circuit, a result that could well be attained under a rule leaving such decision to the district judge’s discretion.
Judge Tjoflat’s rationale for a rigid rule for district courts overlooks the fact that so-called mixed petitions are seldom filed as such, and quite often a great deal of work is done in the case by the district court, its staff and counsel, before it is discovered that some claims are in fact unexhausted. It may well be that judicial efficiency is better served in such eases for the district court to go ahead and rule on the exhausted issues, rather than to cast the ease out for later repetition of the judicial exercise and confrontation by perhaps a different judge. A flexible rule leaving the course to be followed in a particular case to the sound discretion of district judges will satisfy all the concerns expressed by Judge Tjoflat for judicial efficiency in a system which in fact permits successive petitions.
Several considerations underlie the correctness of this decision: (1) the historical and current value of the petition for writ of habeas corpus in our judicial system, see Sokol, Federal Habeas Corpus 1-27 (2d ed. 1969); (2) the fact that each circuit judge has original jurisdiction of petitions for writ of habeas corpus, if we choose to exercise it, in addition to our appellate jurisdiction, 28 U.S.C.A. § 2254(a); (3) the statutory restriction of 28 U.S.C.A. § 2254(b) proscribes the grant of relief on an unexhausted claim, not the denial thereof; (4) exhaustion is bottomed on comity, not jurisdiction; and (5) the doctrine of comity is not undermined by federal consideration of exhausted issues.
In conclusion, I would disavow any prior opinions of this Court that indicate a grant of habeas corpus on an exhausted issue in a mixed petition to be either improper, inappropriate, or unwise. I would hold that our Court is required to review any grant of habeas corpus relief on the merits. I would remand the case to the panel of this Court that heard oral argument for decision on the merits of this appeal.