dissenting:
The majority today releases 1 a New York state prisoner who was convicted of a murder committed more than 14 years ago. His *293conviction, after a jury trial in the Queens County Supreme Court in 1968, was affirmed on direct appeal by the Appellate Division, Second Department, 37 A.D.2d 863, 326 N.Y.S.2d 995 (2nd Dept. 1971), and by the New York Court of Appeals. 31 N.Y.2d 888, 340 N.Y.S.2d 405, 292 N.E.2d 674 (1972).
The majority concedes that the federal constitutional claim raised in petitioner’s federal habeas corpus petition was not even raised on his direct appeals to the New York state appellate courts; nor have the New York state appellate courts ruled on the merits of that claim on the appeals from the denial of petitioner’s collateral attack upon his conviction.
Since there is no basis whatsoever in this record to overturn the felony murder conviction and since I believe that the principles of federalism and comity behind the Congressional requirement of exhaustion of state remedies embodied in 28 U.S.C. § 2254(b) and (c) (1976) are seriously undermined by the result reached today by the majority, despite the majority’s thoughtful, well crafted opinion, I respectfully but emphatically dissent.
I.
On the afternoon of February 23, 1967— 14 years prior to the argument of the instant appeal in our Court — Mrs. Diana Goodman was stabbed to death in her home. It is undisputed that either petitioner Klein or his co-defendant Rabinowitz killed Mrs. Goodman. They had gone together to her home to obtain money.
*294Klein was indicted for premeditated murder and felony murder.2 He was convicted, after a jury trial, of second degree murder and felony murder, for which he was sentenced, respectively, to terms of 15 years to life and 20 years to life, the terms to run concurrently.
It is further undisputed that on three occasions after his arrest and before trial Klein admitted to police officers and an assistant district attorney that he had accompanied Rabinowitz to the Goodman home and that he was either present or in an adjoining room at the time of the murder. Klein repeated these admissions during his trial testimony.
Klein’s trial counsel, as the- majority points out, virtually conceded in his summation to the jury that Klein was guilty of felony murder. This concession is not surprising for the simple reason that, upon the undisputed facts disclosed by the record, there was no defense whatsoever to the felony murder charge.
Before returning to what strikes me as the extraordinarily slender reed upon which the majority relies in overturning Klein’s felony murder conviction, I shall turn first to my disagreement with the majority’s holding that Klein has exhausted state remedies.
II.
I take it to be common ground that the Congressional command of exhaustion of state remedies, 28 U.S.C. § 2254(b) and (c) (1976), is not a matter of semantics to which only lip service is to be given; it cuts to the core of every state prisoner federal habeas corpus petition. Strict adherence to the statutory requirement has been emphasized by the Supreme Court and by our Court over and over again. E.g., Picard v. Connor, 404 U.S. 270, 275-76 (1971); Krische v. Smith, 662 F.2d 177, 177-78 (2 Cir. 1981); Daye v. Attorney General, 663 F.2d 1155, 1156-58 (2 Cir. 1981); Boothe v. Superintendent, 656 F.2d 27, 31-32 (2 Cir. 1981); Rivera v. Harris, 643 F.2d 86, 91 n.3 (2 Cir.), rev’d., - U.S. - (1981), 50 U.S.L.W. 3484 (U.S. Dec. 14, 1981), see N.Y.L.J., Dec. 15, 1981, p. 1, cols. 2-3; Albuquerque v. Bara, 628 F.2d 767, 774 (2 Cir. 1980); Gayle v. LeFevre, 613 F.2d 21, 22 & n.1 (2 Cir. 1980); Twitty v. Smith, 614 F.2d 325, 331 (2 Cir. 1979); Finetti v. Harris, 609 F.2d 594, 597 (2 Cir. 1979); Johnson v. Metz, 609 F.2d 1052, 1053-56 (2 Cir. 1979); Kaplan v. Bombard, 573 F.2d 708, 710-11 & n.1 (2 Cir. 1978); Wilson v. Fogg, 571 F.2d 91, 93 (2 Cir. 1978); Fielding v. LeFevre, 548 F.2d 1102, 1106 (2 Cir. 1977); Cameron v. Fastoff, 543 F.2d 971, 977 (2 Cir. 1976); Lunz v. Henderson, 533 F.2d 1322, 1324 & n.3 (2 Cir.), cert. denied, 429 U.S. 849 (1976); United States ex rel. Johnson v. Vincent, 507 F.2d 1309, 1311 (2 Cir. 1974), cert. denied, 420 U.S. 994 (1975); Ralls v. Manson, 503 F.2d 491, 494-95 (2 Cir. 1974); United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 994 (2 Cir. 1974); United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1124 (2 Cir.), cert. denied, 409 U.S. 1045 (1972); United States ex rel. Rogers v. LaVallee, 463 F.2d 185, 187 (2 Cir. 1972); United States ex rel. Annunziato v. Deegan, 440 F.2d 304, 305 & n.1 (2 Cir. 1971); United States ex rel. Gentile v. Mancusi, 426 F.2d 238, 240 (2 Cir.), cert. denied, 400 U.S. 944 (1970); and United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 710 (2 Cir. 1960).
The requirement that “a state prisoner . . . present the state courts with the same claim he urges upon the federal courts” and give the state courts a “fair opportunity” to consider that federal constitutional claim, Picard, supra, 404 U.S. at 276, obviously presupposes that the claim be articulated in the state courts with some precision. The claim must be framed with sufficient specificity in the state courts to permit the federal courts thereafter to determine whether the particular claim is the same claim or “substantially the same” as the one previously asserted in the state courts. Fielding, supra, 548 F.2d at 1107. Only in this way may the federal courts determine whether the state courts indeed had a “fair opportunity” to decide the claim on its merits. General references in state court briefs to “due process”, “constitutional rights”, and “fair trial” are inadequate under this standard to exhaust state remedies for purposes of compliance with the Congressional mandate of § 2254. Gayle, supra, 613 F.2d at 22 n.2; Johnson, supra, 609 F.2d at 1055; Wilson, supra, 571 F.2d at 94; Cameron, supra, 543 F.2d at 977; Gibbs, supra, 496 F.2d at 994; Nelson, supra, 465 F.2d at *2951124; and Anderson v. LeFevre, 509 F.Supp. 199, 200 (S.D.N.Y.1981) (Ward, J.).
In the instant case, petitioner simply has not complied with the requirements of specificity and identity of claims in the state and federal courts. He raised a'welter of alleged trial errors at every stage of his post-conviction proceedings. A careful reading of the state court record, and particularly of the state appellate and collateral proceeding briefs, however, makes crystal clear that under the standards set forth above petitioner has totally failed to present the “same claim” to the state and federal courts.
With respect to the challenged testimony of Klein’s codefendant, Rabinowitz, Klein claimed error on the part of the trial judge at some stages of the proceedings, error by the prosecution at other stages, and error on the part of both at still other stages. At no time in the state courts, however, was any federal constitutional claim asserted with the requisite specificity.
The majority places chief reliance, in holding that petitioner has exhausted state remedies, upon his motion for post-conviction relief pursuant to N.Y. Criminal Procedure Law § 440.10 (McKinney 1971). I shall deal more explicitly below with what I regard as the majority’s unfortunate departure from the law of this Circuit in its construction of this New York statute. For present purposes, however, suffice it to say that petitioner’s § 440 motion may be characterized charitably as a hodge-podge of claims; and, to the extent that they challenge the Rabinowitz testimony, they fall fatally short of the requisite federal constitutional specificity required by the Supreme Court and by our Court.
In short, it is not enough that petitioner may have “unsuccessfully pursued numerous avenues toward post-conviction relief in the New York state courts”, as the majority states. His pursuit must have been sufficient at law. It was not.
III.
The majority further holds that petitioner’s claim was not waived by his failure to object contemporaneously at trial or to raise it on direct appeal. It bases its analysis on its reading of Wainwright v. Sykes, 433 U.S. 72 (1977)3; Washington v. Harris, 650 F.2d 447 (2 Cir. 1981); and Gruttola v. Hammock, 639 F.2d 922, 929 (2 Cir. 1981). According to the majority, these cases require a determination of whether state procedural bars were invoked by the state courts. Such an interpretation, in my view, marks a significant departure from and expansion of our recent decisions on the issue. Washington, supra, 650 F.2d at 451; Taylor v. Harris, 640 F.2d 1, 2 (2 Cir. 1981); and Alburquerque v. Bara, 628 F.2d 767, 772-73 (2 Cir. 1980). Such an interpretation also misapprehends the policy behind a Sykes-type “waiver” in this Circuit.
According to the majority, unless a state court “actually relies” upon a state procedural default for its dismissal, the prosecution has forfeited its otherwise dispositive claim in the federal court that petitioner failed to make timely objection under state law and so now has not presented a cognizable federal claim. In other words, the majority has added to the Sykes’ straightforward “cause and prejudice” test the prerequisite of an actual state court dismissal on procedural grounds — a requirement which was not met here and which seriously undercuts the holding of Sykes.
The import of the waiver rule, correctly applied, is that petitioner would be barred from presenting in a federal habeas proceeding a new claim which, under state procedure, must be raised prior to or during trial or on direct appeal. The import of the rule is not that respondent is barred from contesting the petition in the federal court because of the dismissal formulation utilized by the state court.
The majority’s application of a two-tiered Sykes test, I respectfully submit, results in the upside down anomaly of screening out rebuttal claims by the state rather than untimely claims by state prisoners. On this further ground I therefore dissent.
IV.
Returning to the majority’s second test for determining whether there has been exhaustion of state remedies- — namely, appellate exhaustion — I find the majority’s glossing over this issue to be most unfortunate. In particular, I am disturbed by the manner in which the majority deals with petitioner’s failure to seek review by the New York Court of Appeals of the denial *296by the Appellate Division of leave to appeal from the denial by the Queens County Supreme Court of petitioner’s motion for post-conviction relief pursuant to N.Y. Criminal Procedure Law § 440.10(2)(c) (McKinney 1971). I am especially disturbed by the majority’s departure from the law of this Circuit in construing this statute — a departure which is aggravated by the conceded failure of petitioner ever to have raised on his direct appeals to the New York state appellate courts the federal constitutional claim raised in his federal habeas corpus petition.
The late Judge Murray I. Gurfein was an exceedingly wise and perceptive judge. His long experience on this Court, on the district court, and as a prosecutor and defense attorney in the New York state courts instilled in him a sensitivity second to none regarding the principles of federalism and comity behind the Congressional requirement of exhaustion of state remedies embodied in 28 U.S.C. § 2254(b) and (c) (1976). Judge Guriein was a member of the panel in the two leading cases in our Court dealing with § 440.10(2)(c) and particularly with the critical question of whether the state courts or the federal courts should determine in the first instance what constitutes “unjustifiable failure” to raise on direct appeal an issue later sought to be raised in seeking post-conviction relief. Johnson v. Metz, 609 F.2d 1052, 1055-56 (2 Cir. 1979); Cameron v. Fastoff, 543 F.2d 971, 977-78 & n.7 (2 Cir. 1976). What Judge Gurfein, the author of the opinion in Johnson v. Metz, said in emphasizing the role of the state courts in making this critical determination bears repetition:
“The meaning of ‘unjustifiable failure’ has not yet been determined by the court of appeals nor has that court stated whether it would limit post-conviction relief in a case involving a claim of unfair trial. Nor has there been any definitive determination of whether state habeas corpus survives as a post-conviction remedy. Despite this uncertainty, we have taken the position . . . that whether New York entertains collateral relief at this point is a matter of New York law to be decided by the New York courts. Wilson v. Fogg, supra, 571 F.2d at 95, citing Cameron v. Fastoff, supra, 543 F.2d at 977-78 & n.7. It is difficult for this panel to believe, however, that no post-conviction remedy whatever will be available by way of state collateral relief when a serious federal constitutional issue is involved.
“... Particularly because of the lack of authority, we think it appropriate that the state court should be allowed, in the first instance, to pass on the constitutional point fairly presented to it.” 609 F.2d at 1056 (footnote omitted; emphasis added).
Despite what clearly is the law of this Circuit, Johnson, supra, 609 F.2d at 1055-56; Cameron, supra, 543 F.2d at 977-78 & n.7—namely, that we defer to the state courts to determine what constitutes an “unjustifiable failure” for the purpose of triggering § 440.10 relief — the majority here peremptorily holds as a matter of New York law that “no appeal to the New York Court of Appeals lies from an order denying a motion for leave to appeal to the Appellate Division.” Acknowledging that it has found no New York Court of Appeals decision to this effect, the majority boot-straps its peremptory holding with respect to New York law by going outside the record in the instant case and alluding to a letter from a court clerk in a case not before us.
With deference, I suggest that it would be well to heed the recent admonition of Chief Judge Cooke of the New York Court of Appeals:
“We can ill afford unnecessary duplication of judicial effort. We are haunted by the specter of criminal cases that run the full gamut of state trial and appellate levels only to start anew up the ladder of federal courts and then perhaps somewhere along the line return to the beginning of the obstacle course. The process may take many years.”
Cooke, Waste Not, Wait Not — A Consideration of Federal and State Jurisdiction, 49 Fordham L.Rev. 895, 901-02 (1981).
*297V.
Finally, in overturning Klein’s felony murder conviction — wholly aside from the failure to exhaust state remedies — it seems to me that the majority improperly has ventured into an area where there not only is no claim of federal constitutional significanee but no state court error whatsoever.
The state trial court carefully instructed the jury to return two verdicts. The verdict convicting petitioner of felony murder reflected the jury’s determination that petitioner “[ajeting either alone or with one or more other persons” engaged in or attempted one of the predicate felonies set out in the statute and that, “in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant ... cause[d] the death of a person other than one of the participants.... ” N.Y. Penal Law § 125.25(3) (McKinney 1975). The statute does not require an answer to the question as to who, between Klein and Rabinowitz, used the knife to stab Mrs. Goodman to death.
Even if this Court were correct in sustaining petitioner’s arguments on the merits and in holding that the trial judge should have striken Rabinowitz’s disputed testimony on the premeditated murder count, there remains the abundant and virtually undisputed evidence of Klein’s willing participation in the criminal excursion to Mrs. Goodman’s home and in the murder that ensued there. Of chief significance, petitioner’s own admissions to the police, given on three occasions, the admissibility of which is not disputed, squarely inculpate petitioner on the felony murder count. The majority’s suggestion of “spillover”, aside from being speculative and without foundation in this record, is wholly misplaced under the circumstances of this case where petitioner’s trial counsel conceded in his summation that petitioner was guilty of felony murder.
For the reasons stated above, I would vacate the judgment of the district court, prom the refusal of the majority to do so, I respectfully but emphatically dissent.4
. More accurately, the majority has put its imprimatur on the district court’s premature release of the prisoner on bail pending appeal before an opportunity was afforded this Court to review the district court’s decision on the merits.
*293I question the propriety of a single district judge releasing on bail pending appeal a state prisoner serving a life sentence for murder following his conviction by a jury of 12 — a conviction and sentence which 13 state judges have refused to set aside, including all of the judges of the highest New York state court. This is precisely the sort of action by a single federal trial court judge which was criticized by Chief Judge,, Lawrence H. Cooke of the New York Court of Appeals in his Sonnet Memorial Lecture at the Fordham University School of Law on February 24, 1981. Cooke, Waste Not, Wait Not — A Consideration Of Federal And State Jurisdiction, 49 Fordham L.Rev. 895, 900 (1981) (“The most incessant abrader of judicial feelings may be the overturn of the deliberative judgment of the highest court of a state by a single federal trial court judge.”).
The situation confronting our Court as the result of the district court’s release of this prisoner before the State could be heard on appeal is exacerbated by the absence of any findings by the district court justifying such release and the absence of any transcript of the hearing, if there was one, on the bail motion. For aught that appears in the record before us, there is nothing whatsoever to justify the extraordinary action of a single district judge in releasing on bail pending appeal a prisoner serving a life sentence for murder and doing so before appellate review of the district court’s action. I had thought that such action by a district judge had been proscribed long ago by our Court. See United States ex rel. Brown v. Smith, 306 F.2d 596, 606 (2 Cir. 1962), rev’g 200 F.Supp. 885, 941—43 (D.Vt.1962) (Timbers, J.), cert. denied, 372 U.S. 959 (1963).
All else aside in this case, I would order immediately that the prisoner be remanded to custody until appellate review of the district court’s order is completed — including review by the Supreme Court in the event that Court chooses to review the case.
After the opinions were filed in the instant case, we were informed that an Assistant State Attorney General had interposed no objection to the release of the prisoner on bail pending appeal. Leaving aside the dubious propriety of such a position by the State with respect to a prisoner serving a life sentence for murder, that fact is one which the district court appropriately might have set forth in its findings in support of its order granting bail and then have stayed such order until our Court might have had an opportunity to review the district court’s exercise of discretion with respect to granting bail pending appeal. Clearly the premature release of this prisoner on bail pending appeal is contrary not only to the practice in this Circuit but to the practice in other Circuits as well. See, e.g., the opinion by Circuit Judge Bailey Aldrich in Glynn v. Donnelly, 470 F.2d 95, 98 (1 Cir. 1972):
“[I]n the absence of exceptional circumstances ... the court [in a state prisoner habeas corpus case] will not grant bail prior to the ultimate final decision unless petitioner presents not merely a clear case on the law, . . . but a clear, and readily evident, case on the facts. Merely to find that there is a substantial question is far from enough.” (footnote omitted).
The three separate opinions by our Court in the instant case, to say nothing of the State’s pending petition for a writ of certiorari, would suggest that this is a case where the prisoner presented neither “a clear case on the law” nor a “clear, and readily evident, case on the facts.”
. Rabinowitz pled guilty to first degree manslaughter. He was sentenced to a prison term of 10 to 20 years. He has completed serving his prison term.
. The majority refers to Sykes as “the latest in a line of not entirely consistent Supreme Court cases dealing with the forfeiture question.”
. The characteristically thoughtful concurring opinion of Judge Kaufman, written of course after my dissenting opinion, serves the useful purpose of further sharpening the essential questions in the case. Why are the New York state courts not just as competent as the federal courts to pass upon the conduct of the state trial judge, assuming the correctness of Judge Kaufman’s characterization of that conduct as “of the most serious constitutional dimension”? And why are not the New York state courts far more competent than the federal courts to say whether the conduct of the state trial judge should result in overturning the conviction on the felony murder count, as to which the defendant’s state trial counsel conceded guilt? The silence of our distinguished concurring colleague with respect to these essential questions strikes me as significantly eloquent.