dissenting:
“The writ has no enemies so deadly as those who sanction the abuse of it, whatever their intent.”
Jackson J., concurring in Brown v. Allen, 344 U.S. 443, 544, 73 S.Ct. 397, 429, 97 L.Ed. 469 (1953).
Federal habeas corpus jurisdiction has been described as an “untidy area” of the law, Sunal v. Large, 332 U.S. 174, 184, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982 (1947) (Frankfurter, J. dissenting), presenting “many procedural problems which are not easy of solution”, Price v. Johnston, 334 U.S. 266, 269, 68 S.Ct. 1049, 1052, 92 L.Ed. 1356 (1948). Commentators have described it as one of the “dark corners of the law”, Reitz, Federal Habeas Corpus: Postconviction Remedy For State Prisoners, 108 U.Pa. L.Rev. 461 (1960), only dimly lit by the “confused and unprincipled” determinations of the courts, Note, Guilt, Innocence and *198Federalism in Habeas Corpus, 65 Cornell L.Rev. 1123, 1147 (1980).
The cause of much of the procedural confusion has been the requirement that State remedies be exhausted before a federal writ is granted. This requirement, now codified in 28 U.S.C. § 2254(b), has existed almost from the time that Congress first authorized the use of habeas corpus for the aid of persons unconstitutionally restrained of their liberty. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). It has been said that section 2254(b) provides a “straightforward exhaustion requirement”, a “simple and clear instruction to potential litigants” that before they bring any claims to federal court they should be sure they have first taken each one to State court. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). In actual practice, however, the “simple and clear instruction” often has been ignored, and the application of the exhaustion requirement has been some- . thing less than “straightforward”.
Although I am somewhat overwhelmed by my learned colleagues’ unanimity of view, I am convinced that this Court’s en banc decision will exacerbate the jurisdictional confusion that already exists in this area and will at the same time substantially undercut the doctrine of exhaustion of remedies. I therefore respectfully dissent.
Little purpose would be served by reciting the history of the century-old controversy surrounding the power of a single federal district judge to overrule a decision that has been concurred in by as many as thirteen State court judges. But see Wright, Handbook of the Law of Federal Courts 236-248 (3d ed.1976); Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321 (1973). Friction in this area has been both persistent and inevitable, Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770-71, 66 L.Ed.2d 722 (1981), and the task of a district judge is therefore a most “delicate” one. Darr v. Burford, 339 U.S. 200, 206-07, 70 S.Ct. 587, 591-92, 94 L.Ed. 761 (1950). Because of the “principles of federalism which underlie the American legal system”, see Mackey v. United States, 401 U.S. 667, 685, 91 S.Ct. 1160, 1176, 28 L.Ed.2d 404 (1971) (Harlan, J. concurring in part and dissenting in part), a district judge should exercise habeas corpus jurisdiction with due concern for the “mutual respect and the balanced sharing of responsibility between the state and federal courts which our tradition and the Constitution itself so wisely contemplate”, Schneckloth v. Bustamonte, 412 U.S. 218, 265, 93 S.Ct. 2041, 2067, 36 L.Ed.2d 854 (1973) (Powell, J. concurring). I am afraid that the majority’s instructions to our district judges will encourage deviation from that salutary practice.
The fundamental liberty secured by the Fourteenth Amendment is the right to a fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). However, since no prisoner attacking his conviction will ever concede that he was fairly convicted, my colleagues state quite correctly that a claim of unfairness, standing alone, does not raise a constitutional issue. My colleagues say that our district judges must look to the factual allegations supporting the prisoner’s claim of unfairness to determine whether they are within the “mainstream of due process adjudication.” If they are, our district judges are instructed to assume that the State courts reviewed the claim as one being made under the United States Constitution, despite the absence of any reference to that document in the prisoner’s brief. “To eschew that assumption”, the majority say, “is surely to disserve the interests of comity and respect due the diligent jurist on the state bench.”
My first quarrel with the majority opinion is its facile use of the phrase “mainstream of due process adjudication”. If there is such a “mainstream”, it has meandered so often as to be almost indefinable. “The Bill of Rights ... has become a detailed code of Criminal Procedure to which a new chapter is added every year,” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L. Rev. 142, 156 (1970); and, as a result, there *199has been an “extraordinary expansion of the concept of habeas corpus”, Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 501, 93 S.Ct. 1123, 1132, 38 L.Ed.2d 443 (1973) (Blackmun, J. concurring).1 One need only examine the volume of scholarly commentary that followed the Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to realize what an abrupt departure from established law that decision made. In Justice Stevens’ words, Jackson enunciated a “new rule of law”, a “novel constitutional rule”, a “new constitutional precept”, a “new constitutional principle”, a “new constitutional edict”. Id. at 326-28, 99 S.Ct. at 2792-94. It was not surprising, therefore, that Justice Powell observed in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), that the Supreme Court “has come to accept review by federal district courts of state-court judgments in criminal cases as the rule, rather than the exception that it should be.” Id. at 581, 99 S.Ct. at 3013 (Powell, J. concurring). Without belaboring the point, I simply pose the question whether my colleagues would have considered a 1978 petition based upon the insufficiency of evidence to be within their so-called “mainstream of due process adjudication.”
My second difference with my colleagues arises from their incomplete, and therefore somewhat misleading, description of the assumption which they instruct our district judges henceforth to make. A district judge who is forced to assume that State court judges have considered a constitutional claim, must also assume that the State court judges have silently rejected it. Should the district judge grant a writ under such circumstances, he will be telling the State court judges in substance that he assumes they were smart enough to spot a constitutional question but not smart enough to answer it correctly. This, I suggest, is not comity.
We delude ourselves if we believe that New York State appellate judges are less competent than federal judges to protect the constitutional rights of criminal defendants. See Stone v. Powell, 428 U.S. 465, 493-94 n. 35, 96 S.Ct. 3037, 3052 n. 35, 49 L.Ed.2d 1067 (1976); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 509 (1963); Friendly, supra, at 135 n. 125; Desmond, Federal Habeas Corpus Review of State Court Convictions — Proposals for Reform, 9 Utah L.Rev. 18 (1964). Moreover, we demean the State appellate process and impose unnecessary burdens on our district judges if we, do not strongly support the policy of federal-state comity, which underlies the doctrine of exhaustion of remedies. Webb v. Webb, 451 U.S. 493, 500-01, 101 S.Ct. 1889, 1893-94, 68 L.Ed.2d 392 (1981); Jackson v. Virginia, supra, 443 U.S. at 337, 99 S.Ct. at 2798 (Stevens, J. concurring).
The principles of comity will not be served by a policy of this Court which encourages and condones careless practice and briefing in the State courts by defense attorneys and which charges State appellate courts with having silently rejected constitutional claims that were not squarely raised by State court appellants and were neither briefed nor argued by their opponents. The better rule, and the one we are required to follow, was laid down by the Supreme Court in Webb v. Webb, supra, 451 U.S. at 501, 101 S.Ct. at 1894, where Justice. White, writing for eight members of the Court, said:
At the minimum, however, there should be no doubt from the record that a claim under a federal statute or the Federal Constitution was presented in the state courts and that these courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law. (emphasis in original).
The majority opinion states that petitioner “did not mention the Constitution or cite any federal cases”, but significantly fails to *200disclose that neither did the district attorney. Two Circuits have squarely held that, under such circumstances, there has not been an exhaustion of State remedies. Paullet v. Howard, 634 F.2d 117, 119-20 (3d Cir.1980); Thomas v. Wyrick, 622 F.2d 411, 413-14 (8th Cir.1980). Cf. Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978) (petitioner’s constitutional claim “squarely raised” in his State court briefs and “vigorously opposed” in the State’s brief).2
My colleagues suggest that petitioner’s claims concerning the “appearance of bias” could be construed as a squarely presented argument that he had been' deprived of federal due process. I respectfully disagree. The cases cited in the majority opinion deal with whether a judge acted improperly in participating in a trial, not with whether an otherwise qualified judge made improper rulings during the course of trial. “[T]he touchstone of due process analysis ... is the fairness of the trial” not “the appearance of justice.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). To constitute a denial of due process, “the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). If a trial court’s comments result in constitutional error, it is because of the nature of the comments, not the qualifications of the judge. See United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Corbett v. Bordenkircher, 615 F.2d 722, 723-24 (6th Cir.), cert. denied, 449 U.S. 853, 101 S.Ct. 146, 66 L.Ed.2d 66 (1980).
In order to determine whether the trial judge engaged in “forensic misconduct”, an appellate court should examine the entire trial record so as to put the judge’s words in proper perspective. Daley v. United States, 231 F.2d 123, 128 (1st Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956).
To assess confidently the validity of this sort of attack upon the trial judge, it is necessary to read the voluminous transcript from cover to cover. Id.
See also United States v. McCarthy, 473 F.2d 300, 307-08 (2d Cir.1972); United States v. Cruz, 455 F.2d 184, 185 (2d Cir.), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972); United States v. Switzer, 252 F.2d 139, 144 (2d Cir.), cert. denied, 357 U.S. 922, 78 S.Ct. 1363, 2 L.Ed.2d 1366 (1958). Two federal judges have already examined the entire trial record in the instant case and have concluded that petitioner was not denied a fair trial. 663 F.3d at 1156, 1158. This hardly demonstrates that there was a compelling need for the State courts to go unrequested beyond New York’s own rules governing judicial conduct into the area of federal due process.
In cases such as this, we would be better advised to follow the generally prevailing rule that “[w]hen a federal court is unable to determine unequivocally that an issue has been considered and ruled upon by the state courts, comity requires that the initial determination of the issue be made by the state courts.” Tyler v. Swenson, 527 F.2d 877, 880 (8th Cir.), cert. denied, 425 U.S. 915, 96 S.Ct. 1515, 47 L.Ed.2d 766 (1976). See also Brown v. Cuyler, 669 F.2d 155, 157-58 (3d Cir.1982); Echevarria v. Bell, 579 F.2d 1022, 1025 (7th Cir.1978); Durkin v. Davis, 538 F.2d 1037, 1041-42 (4th Cir.1976); Williams v. Wainwright, 410 F.2d 144, 145 (5th Cir.1969), cert. denied, 398 U.S. 943, 90 S.Ct. 1846, 26 L.Ed.2d 281 (1970).
*201During the 1943, 1944 and 1945 fiscal years, State prisoners filed an average of 451 federal habeas corpus petitions per year. United States v. Hendricks, 213 F.2d 922, 929 (3d Cir.), cert. denied, 348 U.S. 851, 75 S.Ct. 77, 99 L.Ed. 670 (1954). During the twelve month period ending June 30, 1981, a total of 23,607 petitions were filed by State prisoners, of which 7,790 sought habeas corpus relief. Annual Report of the Director of the Administrative Office of the United States Courts 63 (1981). Petitions by State prisoners represented 13.1% of all cases filed during that year. Id. at 61. I respectfully suggest that federal judges who complain about the “burden” of trying diversity cases should continue to reject habeas corpus petitions from lawyers who have not evidenced sufficient respect for the State appellate courts to properly present their constitutional arguments in those courts. By condoning such slipshod practices, we encourage their growth.
Addendum 3
During the past three years, the Supreme Court granted certiorari and reversed seventeen cases in which section 2254 writs had been granted state prisoners. Five of these reversals were based upon the petitioners’ failure to exhaust their state remedies. Mabry v. Klimas, 448 U.S. 444, 447, 100 S.Ct. 2755, 2757, 65 L.Ed.2d 897 (1980) (per curiam); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Anderson v. Harless, - U.S. -, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam). If there is a message in these holdings, and I believe there is, the message does not seem to be having the desired effect on the lower courts.
Anderson v. Harless, supra, reversed Harless v. Anderson, 664 F.2d 610 (6th Cir.1981), one of the cases upon which my colleagues originally relied. However, my colleagues now dismiss the Supreme Court’s reversal as if it were entirely unrelated to the issues now before us. I suggest that, in brushing aside the Anderson holding, this Court is repeating what it did in Phillips v. Smith, 632 F.2d 1019 (2d Cir.1980), rev’d sub nom. Smith v. Phillips, supra, 454 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), i.e., doing what the Supreme Court has said should not be done. Id. at 1024 (Van Graafeiland, J. dissenting).
As already pointed out, it is the majority’s position that, if a petitioner’s state court claim rests on a factual matrix that is within the mainstream of due process adjudication, this is sufficient to alert the state court to the claim’s constitutional nature. That is precisely the argument that the Supreme Court rejected in Anderson v. Harless, supra. Referring to the Court of Appeals’ opinion, the Anderson Court said:
The court held that respondent’s claim had been properly exhausted in the state courts, because respondent had presented to the Michigan Court of Appeals the facts on which he based his federal claim and had argued that the malice instruction was “reversible error”.
It is not enough that all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state-law claim was made.
In support of this legal proposition, the Court cited Picard v. Connor, supra, 404 U.S. at 277, 92 S.Ct. at 513, where the Court, in reversing the grant of a section 2254 writ, said:
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.
The Anderson court also cited with approval Wilks v. Israel, 627 F.2d 32 (7th Cir.), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1980), in which Judge Wood, *202writing for the Court of Appeals for the Seventh Circuit, said:
The fact that all of the facts upon which the petitioner relies were presented to the state courts is insufficient to establish exhaustion.
Id. at 38.
This Court’s holding in Gayle v. LeFevre, 613 F.2d 21 (2d Cir.1980), was also cited with approval by the Supreme Court in Anderson. In that case, as here, petitioner’s claim that the conduct of the trial judge had deprived him of a fair trial was fully presented to the State appellate courts. Id. at 22. Moreover, petitioner’s Appellate Division brief had commented upon the “unconstitutionally conducted interrogation”. Id. n. 2. Citing Picard v. Connor, supra, 404 U.S. at 276, 92 S.Ct. at 512, we held, nonetheless, that petitioner had not exhausted his state claims. It seems to me that, when we turn our backs on one of our own opinions which the Supreme Court has cited with approval, the Supreme Court’s citation of that opinion should not be ignored in favor of a quotation from a footnoted dictum.
In short, Anderson v. Harless fortifies me in my belief that this Court’s en banc opinion disregards the Congressional intent expressed in section 2254, as that intent has been interpreted by the Supreme Court. The opinion is also manifestly unfair to the people of the State of New York, whose courts are as much entitled as federal courts to have constitutional issues presented to them with the “concrete adverseness which sharpens the presentation of issues.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
. In Braden, the Supreme Court held that the United States District Court for the Western District of Kentucky might issue a writ against the State of Kentucky on behalf of an Alabama convict incarcerated in an Alabama prison.
. See also County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), where the Court said:
Although respondents’ memorandum did not cite the provision of the Constitution on which they relied, their citation of our leading case applying that provision, in conjunction with their use of the word “unconstitutional,” left no doubt that they were making a federal constitutional argument. Indeed, by its responses to that argument at every step of the way, the State made clear that it, at least, understood the federal basis for the claim. Id. at 148 n. 5, 99 S.Ct. at 2220 n. 5.
That clearly is not what happened in the instant case.
. The preceding paragraphs were written as the complete dissenting opinion prior to the Supreme Court’s decision in Anderson v. Harless, - U.S. -, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam).