(concurring).
I agree that petitioner’s complaint of denial of due process should be considered on its merits and that, for the reasons stated by Chief Judge Biggs* the complaint is groundless-and the judgment of the district court should be affirmed. Therefore, I associate myself fully with what to me appear tobe the essentials of Judge Biggs’ opinion. But the path I follow in reaching the merits of the petition diverges from that taken by Judge Biggs.
I prefer to express no opinion whether New Jersey courts can entertain a collateral attack upon petitioner’s conviction or whether petitioner has exhausted his state remedy. Judge Biggs has indicated that the reach of habeas corpus in the courts of New Jersey is not clear. Therefore, I think we should avoid that question, if possible, until we get new light from New Jersey. Similarly, I would avoid passing upon the more general question of what constitutes exhaustion of state remedies. In certain aspects that question has recently divided and redivided the Supreme1 Court. It is now here in rather unusual aspect in a complicating context of uncertainty as to what the state law permits.
I think ;we are not required to decide these questions now. More particularly, it . is unnecessary to consider whether, regardless of the merits of the present petition, Section 2254 of the Judicial Code precludes the granting of affirmative' relief at this stage of the litigation.
The general grant of jurisdiction in ha-beas corpus which appears in Section 2241 of the Judicial Code, standing alone, would have sufficed to authorize the district court to entertain the present application for a writ of habeas corpus and to dismiss it on its merits.1 The recently added Section *6212254 seems to present the only obstacle to that course here. It provides:
Ҥ 2254. State custody; remedies in' State courts
“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”
In terms, that Section is no more than a statutory prohibition against granting relief in certain habeas corpus proceedings absent a showing of exhaustion or lack of state remedy. Both the Code revisers to whom we owe the text of this Section and the Supreme Court tell us that Section 2254 does no more than codify certain principles of public policy in the field of intergovernmental relationships which the courts of the United States had already invoked as a matter of appropriate self-restraint. Historical and Revision Notes to 28 U.S.C.A. § 2254 (1950); Darr v. Burford, 1950, 339 U.S. 200, 210-214, 70 S.Ct. 587. The restraint heretofore exercised has been bottomed on a desire to permit state courts first opportunity to review alleged state abuses of federal constitutional rights. The restraint was not a denial • of power, but a refusal, as a matter of discretion, to act — to avoid “unseemly collisions”. But see Mooney v. Holohan, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. At times, the choice seems to have been assumed to be one between granting relief on the merits and dismissing the petition without any consideration of the merits. E.g. Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Urquhart v. Brown, 1907, 205 U. S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Barton v. Smith, 9 Cir., 1947, 162 F.2d 330. It is obvious, however, that it is not an indignity to state processes to assert that a claim of this sort on its face or on a full record is clearly without merit. Cf. Ashe v. United States ex rel. Valotta, 1926, 270 U.S. 424, 46 S.Ct. 333, 70 L.Ed. 662. This is particularly true where, as here, the highest state court, on petitioner’s appeal from his conviction, has thoroughly reviewed the issues raised and reáched the same conclusion.
It should not be implied that Congress has gone any further than the Code revisers indicated in limiting the flexibility and adaptability to the exigencies of the particular claim which properly characterize the administration of the Great Writ. Therefore, I would construe Section 2254 strictly, limiting its effect on judicial power to its express terms and indicated intendment, and ruling that judicial power to dismiss a petition on its merits is not destroyed by the statutory limitation on the granting of affirmative relief.
Once it is concluded that there is power to dismiss this petition on its merits, common sense dictates that course. We are agreed that petitioner’s claim of unfairness in his trial is groundless. The alternative to dismissal on the merits is a dismissal which sends the petitioner back to the state court to institute a collateral attack, without any assurance that the state courts have power to entertain the suit, but with the understanding that if the state courts and the Supreme Court do not help petitioner in that proceeding he may come again to us via the district court to be told then what is clear to us now, that his petition had - no merit in first instance. However desirable such deference to the state courts may be where on the record there appears at least a doubtful question whether due process has been accorded a petitioner,2 I think there is no point to circuitous rerouting of litigation in such circumstances as this case presents. I am satisfied that we have properly avoided requiring it.
. The development of statutory power in the federal courts to grant habeas corpus is traced in Note, 61 Harv.L.Rev. 657, 657-60 (1948); see also Note, 35 Col.L.Rev. 404 (1935).
. Cf. Cooper v. Hutchinson, 3 Cir., 1950, 184 F.2d 119.