UNITED STATES EX REL. TRANTINO v. HATRACK

GARTH, Circuit Judge.

This appeal from a denial of habeas corpus relief involves three claims stemming from petitioner Trantino's alleged ingestion of psychoactive drugs before and during his trial for murder. The district court found all three claims to be meritless. 408 F. Supp. 476 (D.N.J. 1976). However, we find that we may pass upon the district court's disposition of only two, because Trantino did not exhaust available state remedies as to his third claim, which alleges a Brady violation.

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

We affirm the district court's dismissal of all three claims, but we predicate our dismissal of the Brady claim not on the merits of that claim but rather on the absence of any indication that the federal claim was "fairly presented to the state courts." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Zicarelli v. Gray, 543 F.2d 466, 474-75 (3d Cir. 1976) (en banc).

I.

On August 28, 1963, Trantino surrendered to police in New York City, where he was the object of a massive manhunt as the principal suspect in the August 26, 1963 killing of two Lodi, New Jersey policemen. He was extradited to New Jersey, and was held in the Bergen County jail until his conviction on two counts of murder on February 18, 1964.

The factual background has been set forth at length in the various opinions filed by both state and federal courts. See cases cited at note 13 infra. We repeat here only those facts bearing on the issues in this appeal.

When first incarcerated, Trantino was under the care of a Dr. Sarla, the jail physician. Trantino suffered from what Dr. Sarla diagnosed as tension headaches; consequently, Dr. Sarla prescribed aspirin to provide relief. When the headaches persisted, Trantino was given Equanil, a mild tranquilizer, in twice-daily dosages beginning on October 7, 1963. This regimen continued through October 15, 1963.

See 408 F. Supp. at 484.

On the evening of that day, Trantino, "irritated by a jail employee's verbal abuses, erupted into [a] vocal tirade `yelling at the top of his head that he was being treated like an animal.'" 408 F. Supp. at 484-85 (transcript citations omitted). Because of this violent outburst, Trantino was placed in an observation cell and was straightjacketed. A Medical Log entry for October 15, 1963 notes Dr. Sarla's observation: "This man is completely unbalanced mentally at the moment, should be under psychiatric treatment and observation." Dr. Sarla, however, was not a psychiatrist.

Brief for Appellant at 2; Brief for Appellee at 5.

Brief for Appellant at 2; Brief for Appellee at 5.

The "October 15 incident" apparently prompted the state to bring a psychiatrist into the case. Pursuant to a court order, Dr. Joseph Zigarelli, a staff neuropsychiatrist at Greystone Park State Hospital, examined Trantino on October 17, 1963. Dr. Zigarelli wrote a brief letter to the prosecutor summarizing his findings:

See Order of October 17, 1963, Respondent's Exhibit No. 34 (hereinafter R-34), at 7.

On October 17, 1963, Mr. Thomas Trantino, age 25 years, was examined by me at the Bergen County Jail. Patient was informed of the nature of the examination, that it was being done at the request of your office as to his mental condition prior to appearing in court. At that time a complete neuropsychiatric examination was performed. A report of this examination will follow.

It is my considered neuropsychiatric opinion that at the present time Mr. Trantino is mentally competent to consult with counsel. It is also my opinion that at the time of the alleged offense he was able to differentiate right from wrong and able to understand the nature and quality of his actions.

It must be stated, however, that patient is beginning to formulate some paranoid ideas and has expressed some vague feeling of persecution. These, in my opinion, are not sufficiently developed to interfere with his mental status to consult with counsel.

Letter of October 17, 1963, R-34 at 8.

Following his examination of Trantino, Dr. Zigarelli consulted with Dr. Sarla. He recommended that Trantino be treated with Thorazine, a psychoactive drug of considerably greater potency than Equanil. The Medical Log that sets forth Trantino's treatment while he was confined reveals that a dosage of 50 mg./day, four times daily was prescribed and began on October 17, 1963, that the authorized dosage was doubled on October 24, and that thereafter 400 mg./day was prescribed until December 20, 1963, when the authorization for Thorazine treatment ended.

In the interim, Dr. Zigarelli filed his formal report with the prosecutor. Letter of October 23, 1963, R-34 at 9-13. This report concludes as follows:

Impression: The impression gained from the initial interview with this individual is that we are dealing with a Sociopathic Personality of long standing. There is evidence of poorly controlled feelings of hostility and anxiety. This individual has never learned from past experiences and has always been able to rationalize his behavior. In spite of this maladjustment there has not been any psychotic episode in my opinion until his most recent episode several days ago. He is now beginning to formulate some vague Paranoid ideas of persecution. These are in the beginning stage and are not fully developed. At the present time this individual is fully oriented in all spheres. He is able to fully appreciate his position and is able to consult with counsel. It is my considered Neuropsychiatric opinion that at the present time and at the time of the alleged offense, this individual is and was capable of understanding the nature and quality of his acts and to differentiate right from wrong.

Id. at 12-13. The report, however, did not mention the Thorazine prescription.

On November 6, 1963, Trantino's newly appointed counsel made a number of motions to the trial court, seeking, inter alia, appointment of a psychiatrist for the defense and procurement of "copies of all medical psychiatric or other examinations made by the State or its agents of the defendant in this case." The motion for medical reports was denied: thus Trantino's attorneys were denied access to the reports received by the prosecutor, i. e., Dr. Zigarelli's letters of October 17 and October 23, 1963.

Brief for Appellants at 4, quoting Respondent's Exhibit No. 23.

However, their first request was granted: two psychiatrists, Drs. Samuel Kesselman and Robert Latimer, were appointed for the defense. Doctor Kesselman examined Trantino on December 1; Doctor Latimer, on December 4. Both doctors concluded that Trantino was competent to stand trial and to assist in his defense.

So far as this record reveals, neither was aware of Trantino's ongoing Thorazine and Equanil treatment. That information was apparently not known by defense counsel (nor, for that matter, by the prosecutor) — although it was readily ascertainable from Trantino's Medical Log and Jail Log.

The Medical Log is reproduced, in relevant part, at R-34 at 30-33, while the Jail Log is abstracted in Respondent's Exhibit No. 38.

The subject of medication — either his failing or refusing to take prescribed drugs — was not related to his doctors by Trantino or by Trantino's attorney. Trantino's Jail Log further reveals that while medication was made available to Trantino in the prescribed dosages, he often refused it when offered.

Indeed, according to a summary of the Jail Log prepared by the State, Trantino refused 139 full doses of Thorazine during the period of authorized treatment (October 17, 1963 through December 19, 1963). He accepted only 59 doses of the drug during the same period. His sporadic acceptance of Thorazine ceased entirely between November 19, 1963 and December 7, 1963: thus he had not taken the drug for 14 days when Doctor Kesselman examined him on December 1, and for 19 days when Doctor Latimer saw him on December 5.

Prescribed Thorazine was offered to and accepted by Trantino for the last time on December 19, 1963. For the three days following still another drug — Compazine — was substituted. Finally, Trantino once again began to receive Equanil, the milder medication which had originally been prescribed prior to his outburst on October 15, 1963. This treatment with Equanil continued throughout his trial, which began February 3 and continued through February 18, 1964. During this period Trantino accepted approximately 75% of the prescribed doses of Equanil.

See Appendix for Appellee at 3a (summarizing Jail Log (Exhibit R-23)).

In addition to authorized medication, however, Trantino claimed to have received some Thorazine from other inmates. The district court's discussion of this contention is as follows:

Recognition of the more potent properties of Thorazine as compared to Equanil directed the state trial court's attention towards petitioner's claim that he secretively obtained Thorazine tablets from another jail inmate on the day of his testimony. It found that Trantino did not obtain the medication on the day of his trial testimony. Relying on the testimony of the two inmates which Trantino claimed could have provided him with the unauthorized Thorazine, the state court found that petitioner had not surreptitiously obtained the two Thorazine tablets on the day that he took the stand in his own defense. This finding of fact is fully supported by the record.

The state trial court found that Trantino did ingest Equanil tablets on the day of his trial testimony, one at 6:15 A.M. and another at 8:00 A.M. on February 14, 196[4]. It, however, found that this medication, Equanil, was a mild tranquilizer that would not affect the ability of Trantino to conduct his defense or to testify. In reaching this finding the trial court discounted the testimony of petitioner's medical expert, Dr. Maximillian Fink, for a variety of reasons. Fink's testimony was based upon the premises that Trantino was ingesting both Equanil and Thorazine during the October 17-December 20, 1963 period and that petitioner took all prescribed doses of medication offered him.

As noted above, Trantino's trial lasted from February 3 through February 18, 1964. The jury found Trantino guilty of both murders. He is presently serving a sentence of life imprisonment in the State Prison at Rahway, New Jersey.

Trantino had been sentenced to death, but he was re-sentenced nunc pro tunc to life imprisonment in State v. Funicello, 60 N.J. 60, 286 A.2d 55 (per curiam), cert. denied, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972).

II.

The federal habeas corpus statute by its terms precludes the granting of a writ of habeas corpus in the absence of a showing that a petitioner has exhausted his available state court remedies. Thus, when Trantino's petition in this case was filed in 1974, the district court judge was careful to chronicle the post-conviction proceedings in both state and federal court.

28 U.S.C. § 2254(b) reads:

(b) 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.

See 408 F. Supp. at 478. These proceedings include:

(1) a direct appeal to the New Jersey Supreme Court. That Court affirmed his conviction, State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965);

(2) a motion for a new trial. That motion was denied by the Bergen County Court, and the denial of relief was affirmed by the New Jersey Supreme Court, State v. Trantino, 45 N.J. 37, 211 A.2d 193 (1965), cert. denied, 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966);

(3) a federal habeas petition. That petition was dismissed for failure to exhaust state remedies, Trantino v. Yeager, Civ. No. 351-66 (D.N.J. June 24, 1966);

(4) a petition for state court post-conviction relief. That petition was dismissed by the Bergen County Court after an evidentiary hearing, and the dismissal was sustained by the New Jersey Supreme Court, State v. Trantino, 60 N.J. 176, 287 A.2d 177 (1972); and

(5) the above-mentioned action, see note 11 supra, which resulted in the vacation of Trantino's death sentence.

Trantino's claims — as his petition denominates them and as the district court opinion sets them forth — are:

(A) That the state prosecutor and his staff deprived petitioner's counsel of the opportunity to interview and confront eye-witnesses to the crime prior to trial.

(B) That the state trial judge failed to hold a hearing on petitioner's competency to stand trial despite evidence casting some doubt on the matter.

(C) That medication administered to the petitioner impaired his ability to aid in the preparation and conduct of his defense, suppressed symptoms of mental illness, and adversely affected his demeanor in court.

(D) That petitioner was denied the effective assistance of his own psychiatrists by the state's failure to inform them of the psychoactive drugs he was taking, that he was denied the effective assistance of counsel in that the state was permitted to conduct a psychiatric examination in the absence of petitioner's counsel.

(E) That the trial judge improperly charged the jury with respect to the burden of proof on culpable mental state.

(F) That the petitioner was denied a fair and impartial trial because of massive pretrial publicity.

408 F. Supp. at 480.

The district court's analysis of the exhaustion requirement separately considers each issue encompassed within Trantino's six claims. See id. at 480-81. This procedure correctly anticipated our discussion in Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (en banc):

a federal habeas court may not entertain a claim presented to it unless the "same claim" had been urged upon the state courts. In order to meet this standard, . . . the argument brought before the federal court must be "the substantial equivalent" of a claim already presented to the state courts; "the substance of" the claim raised in the federal court must first have been submitted to the state court.

Id. at 472, quoting Picard v. Connor, 404 U.S. 270, 277, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

In Picard, the habeas petitioner had raised a Fourteenth Amendment due process claim in the state courts. Not until his petition had been presented to the federal courts did an equal protection claim surface. Holding that "the substance of a federal habeas corpus claim must first be presented to the state courts," 404 U.S. at 278, 92 S.Ct. at 513, the Supreme Court reversed the judgment of the federal Court of Appeals, which had granted habeas relief. The Court explained:

We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent "unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution," Ex parte Royall, [ 117 U.S. 241, 251, 6 S.Ct.] [734], 740, 29 L.Ed. [868 (1886)], it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts. See Darr v. Burford, [ 339 U.S. 200, 203 [ 70 S.Ct. 589, 94 L.Ed. 761] (1950)]: Davis v. Burke, 179 U.S. 399, 401-403 [ 21 S.Ct. 210, 211-212, 45 L.Ed. 249] (1900).

404 U.S. at 275-76, 92 S.Ct. at 512. See also the Supreme Court's treatment of the exhaustion issue in Smith v. Goguen, 415 U.S. 566, 576-77, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
For a discussion of Zicarelli, see text accompanying notes 19-21 infra.

Here, the district court has separately considered and ruled upon each issue raised by Trantino in terms of exhaustion. Because Trantino has not appealed from the district court's refusal to grant habeas corpus relief based upon claims (A) (confrontation of eye-witnesses); (E) (improper charge) and (F) (pretrial publicity), we need only review the court's "exhaustion" conclusions as to claims (B) (competency hearing); (C) (medication use that impaired defense) and (D) (failure of state to inform as to drugs — Brady v. Maryland).

As a reading of claim (D) indicates, Trantino incorporated two claims in this subdivision. The second of these claims — "that he was denied the effective assistance of counsel in that the state was permitted to conduct a psychiatric examination in the absence of petitioner's counsel" — was dismissed for failure to exhaust state remedies. 408 F. Supp. at 480 F. Supp. at 480. See Section 2, p. 93 infra.
In addition, we find that each of the claims, denominated B, C and D, are separate and distinct and not so interrelated as to preclude us from reaching the merits on any issue where the district court properly found that exhaustion had taken place. Counsel for the petitioner conceded this point at oral argument.

1.

Claims (B) and (C) require little discussion. The district court's opinion includes the issues raised by those claims as among those "presented to the state courts on direct appeal and in post-conviction relief proceedings." 408 F. Supp. at 480. Our review of the record sustains these conclusions. Issue (B), the substance of which alleges that the state trial judge committed constitutional error in failing to order a competency hearing for Trantino, was raised in post-conviction proceedings in the Bergen County Court, and denial of that claim was apparently affirmed without comment by the New Jersey Supreme Court. See Answer to Writ of Habeas Corpus (May 9, 1974) at 2, United States ex rel. Trantino v. Hatrack, 408 F. Supp. 476 (D.N.J. 1976); State v. Trantino, 60 N.J. 176, 181, 287 A.2d 177, 180 (1972). Issue (C), which alleges that the psychoactive medication taken by Trantino impaired his ability to assist in his defense and otherwise deprived him of due process, was raised in the same post-conviction proceedings and was specifically discussed and rejected by the New Jersey Supreme Court. State v. Trantino, supra, 60 N.J. at 181-182, 287 A.2d at 179-80. The district court correctly reached the merits of these claims.

We therefore turn to the merits of claims (B) and (C).

Claim (B)

This claim alleges that the state trial court committed error of constitutional dimension when it failed to conduct an inquiry into petitioner's competence to stand trial. In discussing this contention, the district court said:

It is beyond peradventure that to bring a legally incompetent defendant to trial would violate due process. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); State v. Spivey, 65 N.J. 21, 319 A.2d 461 (1974); State v. Auld, 2 N.J. 426, 67 A.2d 175 (1949). Thus when a bona fide doubt is raised as to a defendant's competency to stand trial, the court must conduct a hearing to resolve the issues. Drope v. Missouri, supra; Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); State v. Spivey, supra. The test of competency to stand trial is that enunciated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960):

[whether a defendant] . . . has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.

The appreciation of the evidence evincing a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competency to stand trial are among the factors upon which a trial court can rely in its determination whether further judicial inquiry is required.

There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts.

Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975).

408 F. Supp. at 482-83.

The district court then analyzed the circumstances underlying the paradigmatic Pate and Drope cases. In both those cases, the trial court was exposed to a plethora of evidence of aberrant behavior which required a competency hearing.

Here, there is no such evidence. As the district court noted, none of the psychiatrists (including those engaged by the defense) who examined Trantino prior to trial indicated any doubts as to his competence to stand trial. Indeed, two of the four doctors testified to that conclusion at Trantino's trial. See 408 F. Supp. at 483. Similarly, defense counsel never suggested that Trantino was incompetent or that their representation of Trantino was hampered by his mental or emotional problems. Additionally, the record reveals that the trial judge, in presiding at the state court postconviction proceedings, commented on the impressive demeanor and extensive vocabulary exhibited by Trantino when he testified in his own defense. See id. at 484.

Finally, and conclusively, a competency hearing was held during state post-conviction proceedings, and the findings and conclusions of the state trial court have not been challenged. such a nunc pro tunc procedure has met with approval by this Court. In United States ex rel. McGough v. Hewitt, 528 F.2d 339 (3d Cir. 1975), we noted that such a procedure had been sanctioned "when the findings at the post conviction hearing were based on evidence derived from knowledge contemporaneous to the trial." Id. at 344. Similar determinations have been authorized in the Second, Fifth, Sixth, Eighth, Ninth and Tenth Circuits, see United States ex rel. Suggs v. LaVallee, 523 F.2d 539 (2d Cir. 1975); Carroll v. Beto, 421 F.2d 1065 (5th Cir. 1970); United States v. Makris, 483 F.2d 1082 (5th Cir. 1973), decision on remand, United States v. Makris, 398 F. Supp. 507 (S.D.Tex. 1975); Conner v. Wingo, 429 F.2d 630 (6th Cir. 1970); Rose v. United States, 513 F.2d 1251 (8th Cir. 1975); Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973); Barefield v. State of New Mexico, 434 F.2d 307 (10th Cir. 1970).

In view of these circumstances, we must reject Trantino's contention that the state trial judge committed error of constitutional dimension in not conducting an inquiry into his competency to stand trial. The district court properly dismissed this claim.

Claim (C)

This claim puts in issue the question of whether petitioner was deprived of due process in being required to stand trial after taking psychoactive medication.

Our statement of the facts focused on Trantino's ingestion of drugs prior to and during his trial. See Part I supra. In addition, we note the state court's post-conviction finding that Trantino had not taken Thorazine, the more potent of the drugs involved here, on the day of the trial — a finding which the district court found to be "fully supported by the record." 408 F. Supp. at 485. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254(d).

We agree with the district court's conclusion:

The state record clearly demonstrates that petitioner was not affected to his detriment by his voluntary ingestion of medication during his trial or during the pretrial period when his trial counsel consulted with him. During this pretrial period, when Thorazine was offered to petitioner, his refusal of this medication often exceeded his acceptance. (R-35, Oct. 17 to Dec. 20, 1963) During the two months preceding trial, petitioner received only Equanil, a mild tranquilizer, and even this he often refused. (R-35, Dec. 25, 1963 to Feb. 18, 1964) And as the state judge commented at the PCR hearing, his own recollections of Trantino's demeanor preclude the assertion that the Equanil dosage adversely affected petitioner's demeanor before the jury.

408 F. Supp. at 486.

Relief with respect to Claim (C) was properly denied by the district court.

2.

Trantino's Claim (D) encounters a more serious obstacle with respect to the exhaustion requirement. It will be recalled that the portion of Claim (D) that the district court decided on the merits alleges:

See note 15 supra.

[t]hat petitioner was denied the effective assistance of his own psychiatrists by the state's failure to inform them of the psychoactive drugs he was taking.

408 F. Supp. at 480. In searching out the constitutional "substance" of this claim, the district court correctly concluded that

petitioner claims that his rights to a fair trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated. The asserted violation is the failure of the state to inform defense counsel and defense psychiatrists of petitioner's regimen of psychoactive drugs.

Id. In reviewing the record of the prior state proceedings, the district court made the following findings concerning the exhaustion requirement:

The issues sought to be raised in allegation (D) were not presented to the state courts before, on direct appeal [ See, R-14, R-21; State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965)]; on petitioner's Motion for a New Trial [ See, R-34 at 50-55; R-24; State v. Trantino, 45 N.J. 37, 211 A.2d 193 (1966)]; or in petitioner's Petition for Post-Conviction Relief [ See, R-34 at 144-178; R-29; State v. Trantino, 60 N.J. 176, 287 A.2d 177 (1972)].

Id. (brackets in original).

Nothing in the district court's opinion indicates that the finding of "non-exhaustion" as to Claim (D) as a whole does not apply to each issue found within that claim. Like the Fifth and Sixth Amendment claim, see note 15 supra, the Brady claim has not been raised in — let alone " fairly presented to" — the state courts.

Zicarelli v. Gray, 543 F.2d 466, 474 (3d Cir. 1976) (en banc) (emphasis in original), quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Judge Gibbons's argument in dissent that Claim (D) has been exhausted depends entirely upon an acceptance of his (not Trantino's counsel's) assertion that one can discern if not the expression of at least the outline of a lurking Brady claim which Trantino presented to the New Jersey Supreme Court. As the text sets out, p. 94 supra, the district court found that no Brady claim had ever been presented to any state court. In order to "construct" the Brady claim, the dissent has pieced together fragments of various state court proceedings which took place from 1967 to 1972, disregarding entirely the requirement that for purposes of exhaustion, such a claim or issue must be "fairly presented" to the highest court of the state.
As we understand the dissent, in order to identify the Brady issue, we must look first to page 1 of Trantino's 1972 New Jersey Supreme Court brief (appealing a denial of post-conviction relief), where his "Argument 8" appears. This argument, however, does not set forth a Brady claim in any respect. Therefore the dissent suggests that we then look to Point H, "Statement of the Case," which appears at page 5 of this 1972 New Jersey Supreme Court brief. However, Point H, as a fair reading will disclose, refers only to Trantino's defense of insanity. But, suggests the dissent, if the Brady issue is not in "Argument 8" or in Point "H", look further — look to an Amendment which was made orally at the time of Trantino's post-conviction hearing five years earlier in January 1967. (The referenced "amendment" does not appear anywhere in the New Jersey Supreme Court brief, and is not even reproduced in the text of Point H at page 48 of that brief). Moreover, that "amendment" (even if it had been presented to the New Jersey Supreme Court) is similarly devoid of Brady content ( see dissent page 99), as are Points A and B which appear at pages 7-34 of the 1972 brief and are referenced at page 99 of the dissent. Significantly Leonard Weinglass, Esq., who was both trial and appellate counsel to Trantino and who thus could have properly formulated a Brady issue on appeal, did not do so. Nor for that matter has Trantino's present counsel ever referred to or produced for us the very documents such as the New Jersey Supreme Court brief and the transcript of the post-conviction hearing upon which the dissent relies in its ingenious construction of a Brady claim, even though the state at oral argument and in a post-argument letter to this Court has retracted its purported waiver and has urged the issue of nonexhaustion.
As discussed in text, exhaustion of state judicial remedies requires that the state courts be given a fair opportunity to adjudicate a federal habeas petitioner's constitutional claims. Notwithstanding Judge Gibbons' attempt to reconstruct the state court record and find a state court disposition of Trantino's Brady claim here, even a liberal reading of the state court records reveals that the state courts had no opportunity — let alone a fair one — to decide this Brady claim.
Judge Gibbons, after duly acknowledging respect for the New Jersey courts, is forced to concede that the New Jersey Supreme Court disposed of a "serious" Brady claim summarily, stating:

The remaining grounds for post-conviction relief set forth in defendant's position are so unmeritorious as not to require specific mention.

60 N.J. at 182, 287 A.2d at 180. We agree fully with Judge Gibbons's respect for the ability of state court judges to provide protection for federal constitutional rights. How, then, is the supposed disposition of this troubling Brady claim by summary dismissal to be explained? The answer, we submit, is not that our state court brethren are unresponsive or insensitive to constitutional rights (the answer which Judge Gibbons's analysis would require) but that, like the majority of this Court and the district judge below, the Justices of the Supreme Court of New Jersey could nowhere find a Brady claim among the issues submitted to them.
The dissent then states that "the claim that was presented to the Supreme Court of New Jersey is, as I [Judge Gibbons] read it; indistinguishable from claim D." Dis. Op. at 100. We suspect that the Justices of the New Jersey Supreme Court will be surprised at this extraordinary insight and reading.

Not surprisingly, the failure by Trantino to exhaust Claim (D) was not lost upon the State. We learn from the district court opinion that "[t]he State initially opposed consideration of both issues [in Claim (D)] here for failure to exhaust state remedies." 408 F. Supp. at 480. However, the State then altered its stance respecting the Brady claim, indicating that it would withdraw its objection predicated on exhaustion in order to permit the district court to reach the merits of the Brady claim. The district court accepted the State's "waiver" of the exhaustion requirement, see id., and went on to reach the merits of that issue.

At oral argument we were informed that the State no longer desired to waive exhaustion of the Brady claim, pointing out that our decision in Zicarelli had not been known or available at the time of the district court hearing. ( Zicarelli was filed on September 10, 1976; the district court's opinion in this case was filed February 19, 1976). Moreover, under date of March 25, 1977, a letter from the Deputy Attorney General of the State of New Jersey formally conceded that waiver may have been inappropriate and had been premised upon an understanding of exhaustion prior to Zicarelli, stating:

An examination of the proceedings in the case at bar conclusively establishes that the Brady issue was never explicitly raised in a state forum.

Hence, despite the dissent's assertion that the state is "perfectly willing to have this case decided in a federal forum now." Dis. Op. at 101, quite obviously New Jersey has no such present willingness. As our discussion in text reveals, however, we accord no controlling significance to the State's most recent shift in position, just as we accord none to the State's waiver before the district court.

In doing so, the district court failed to give proper recognition to the comity considerations which underlie § 2254(b). See Zicarelli, supra, at 471.

We acknowledge that instances may be found of federal courts reaching the merits of non-exhausted claims; however, we believe, with Judge Friendly, that deviation from the exhaustion requirement can only be permitted "in those rare instances where justice so requires." United States ex rel. Graham v. Mancusi, 457 F.2d 463, 468 (2d Cir. 1972). Manifestly, the circumstances attending Trantino's Brady claim do not justify a departure from the congressionally mandated norms set out in § 2254(b).

That there is room for any "deviation" at all from the exhaustion requirement is a measure of the fact that exhaustion is a rule not of jurisdiction, but of comity. See Fay v. Noia, 372 U.S. 391, 419-20, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Ballard v. Maggio, 544 F.2d 1247, 1249 (5th Cir. 1977); see also Zicarelli v. Gray, 543 F.2d 466, 471 (3d Cir. 1976) (en banc); Graham, supra, at 468. Still, as the Supreme Court said in Picard v. Connor, supra: "[i]t has been settled since Ex Parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus."

404 U.S. at 275, 92 S.Ct. at 512. See also Pitchess v. Davis, 421 U.S. 482, 486, 95 S.Ct. 1748, 1751, 44 L.Ed.2d 317 (1975) (per curiam) (exhaustion "a precondition to consideration of a federal habeas corpus petition").

More recently, this Court emphasized the necessity for strict adherence to the exhaustion requirement in Zicarelli v. Gray, supra. In Zicarelli, petitioner raised three separate Sixth Amendment claims before this Court en banc. As Picard mandates, we examined each claim to determine if it had been fairly presented to the state courts. Of the three claims, this Court found that one had clearly been presented to the state courts; a second had just as clearly surfaced for the first time in the federal courts; and a third, while indirectly brought to the state Supreme Court's attention, could not be said to have been fairly presented to that court. See 543 F.2d at 473-75. Judge Adams's analysis in Zicarelli illustrates the care which a federal court must exercise to ensure that every claim in a habeas petition has been exhausted.

Indeed, several circuits have gone so far as to hold that federal court consideration of any claim in a federal habeas petition must await the exhaustion of every claim in that petition. See Galtieri v. Wainwright, 545 F.2d 942, 943 (5th Cir. 1977); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (per curiam). The Supreme Court has yet to pass upon this added requirement, see Francisco v. Gathright, 419 U.S. 59, 63-64, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974), and we have yet to be persuaded of its correctness. Nonetheless, the rule of the Fifth and Ninth Circuits is a further indication of increasing insistence on strict compliance with the exhaustion requirement.

Moreover, in Zicarelli the State attempted to "concede" the issue of exhaustion, agreeing with petitioner that the mere submission of a California case discussing various Sixth Amendment issues satisfied the exhaustion requirement. This Court rejected the State's attempt to acquiesce in circumventing the exhaustion requirement:

This "concession," however, is not dispositive of the issue. First, counsel's statement indicates that he took the transmittal of the [opinion in the California case] to constitute exhaustion as to all sixth amendment claims, and did not consider its impact on the separate contentions that are discrete, and in some respects disparate, parts of the sixth amendment. Second, the doctrine of exhaustion is a product of the recognized need for coordination and friction-free relations between separate court systems. We have been unable to discover any case where a mere statement from counsel, even from a prosecutor, has been found sufficient to dispose of the element of exhaustion without an independent judicial inquiry.

Id. at 471 (footnotes omitted, emphasis added).

Whether a habeas claim may properly be aired in a federal district court is a decision that can be made only by that court, after measuring the claim against the mandate of 28 U.S.C. § 2254. This observation holds true whether counsel "concedes" exhaustion (as in Zicarelli) or seeks to "waive" exhaustion (as in the instant case). For § 2254(b) purposes, both concession and waiver amount to nothing more than notice to the court that the state is unopposed to a federal court reaching the merits of a petitioner's claim. But by the same token, neither concession nor waiver relieves the federal court of its responsibility to decide only those habeas claims which Congress has authorized it to hear under § 2254(b).

The basis for rejection of the concept of waiver in this case — like that underlying rejection of concession in Zicarelli — is found in the policy underlying the exhaustion requirement. Exhaustion is a rule of comity. "Comity," in this context, is that measure of deference and consideration that the federal judiciary must afford to the co-equal judicial systems of the various states. Exhaustion, then, serves an interest not of state prosecutors but of state courts. It follows, therefore, that the state court interest which underlies the exhaustion requirement of § 2254(b) cannot be conceded or waived by state prosecutors — for the state court interest in having "an initial `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" is simply not an interest that state prosecutors have been empowered to yield. "Waiver," like "concession," is not a talisman, the incantation of which will cause the exhaustion requirement to disappear. That requirement remains.

Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971), quoting Fay v. Noia, supra, 372 U.S. at 438, 83 S.Ct. 822.

The district court based its acceptance of the State's proffered waiver on three cases: United States ex rel. Boyance v. Myers, 372 F.2d 111, 112 (3d Cir. 1967); Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971); and United States ex rel. Kelly v. Maroney, 414 F.2d 1228, 1231 (3d Cir. 1969). See 408 F. Supp. at 480. We find all three decisions to be of dubious validity in light of post-1971 case law; moreover, all three are inapposite to the situation before us.

First, as outlined above, this Court's en banc decision in Zicarelli teaches that the exhaustion inquiry will not be stayed by a state prosecutor's willingness to have the federal courts, rather than the state courts, treat with merits of petitioner's claim.

Second, the three cases relied upon by the district court do not reflect the substantial impact of Picard v. Connor, supra, and its progeny, and of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), upon the exhaustion requirement. Picard, which was decided after each of the cases cited by the district court, held that every claim raised in a federal habeas petition must have been fairly presented to the state courts. Before the Picard decision, federal habeas petitioners could satisfy the exhaustion requirement by simply pointing to a prior trip through state post-conviction processes, without regard to whether all of their claims had been decided by the state court. In such a setting, it is conceivable (although now irrelevant) that state waiver could appear plausible once it was shown that petitioner had indeed presented some of his claims to the state courts.

Such was the case in United States ex rel. Boyance v. Myers, supra. Of petitioner's two claims, one had indisputably been exhausted. The state prosecutor was willing to waive the exhaustion requirement as to the other claim, and this Court "in the interest of prompt and comprehensive adjudication of all matters in controversy," 372 F.2d at 113, but without further analysis, was persuaded to accept the waiver. Boyance is distinguishable for another reason as well. The second "waived" claim in Boyance had in fact been at least partially exhausted prior to waiver. This factor distinguishes Boyance from the instant case, for it is conceded by all parties and is borne out by the record that Trantino's Brady claim has never been presented to the state courts. Thus, even if the Boyance waiver rule remained viable — which we think it does not — that case would not support the district court's acceptance of the state's waiver here.

The Jenkins and Kelly decisions represent insubstantial authority for a waiver rule. In both cases, the state's attorneys apparently convinced the respective courts to accept a waiver of exhaustion on claims only after persuading the courts that the claims were "patently frivolous" and meritless ( Jenkins) or that the claims could properly be denied (as distinct from being granted) even in the absence of exhaustion ( Kelly). We note that the Kelly decision of this Court does represent, at a minimum, a cutting back of the broad general statement of the permissibility of waiver found in Boyance. However, we decline to comment on either the Jenkins or the Kelly rationale for permitting waiver, contenting ourselves with the observation that both cases were decided pre- Picard and pre- Zicarelli, and that neither case supports the district court's decision to reach the merits here. In short, our conclusion, which is mandated by this Court's en banc decision in Zicarelli, is in accord with that recently stated by the Second Circuit: "We do not consider that the statutory requirement of exhaustion can be waived by the State." United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1314 n.1 (2d Cir. 1975). To the extent that Boyance and Kelly might be deemed to lead to a contrary conclusion, we are satisfied that they no longer represent the state of the law in this Circuit in light of Zicarelli.

Significantly, just as we have equated a concession by the State with a waiver of exhaustion, see p. 96 supra, so to does the Second Circuit equate a state stipulation with a state waiver. See Sostre, 513 F.2d at 1314.

Moreover, our attention has not been drawn to any rare or extraordinary circumstance which would permit deviation from the exhaustion standard. United States ex rel. Graham v. Mancusi, supra, 457 F.2d at 468. To the contrary, we are aware of at least two factors present in Trantino's Brady claim which indicate the wisdom and desirability of requiring exhaustion in this case.

First, as in Zicarelli, see 543 F.2d at 475, the state courts must in any event hear the related claim alleging a denial of effective assistance of counsel, see note 15 supra, which the district court dismissed for failure to exhaust. Second, and most important, we believe that the record as it presently stands is not sufficient to resolve crucial elements of the Brady claim now advanced for the first time by petitioner. For example, it is unclear precisely what information concerning Trantino's drug use was known to the state prosecutor, or what knowledge should be constructively charged to the prosecutor for Brady purposes. Neither is it clear what was actually known by the prosecutor or the defense counsel with respect to the times of taking and amount of drug ingestion. Additionally, the record is silent as to the availability to the public and to defense counsel of jail and medical logs. Cutting across these uncertainties is Trantino's knowledge of his own use of medication, and the extent to which he imparted that knowledge to others. These are but a few of the unanswered questions which should be addressed in state rather than federal proceedings.

In sum, we conclude that the district court's acceptance of the state's waiver of the exhaustion requirement as it pertained to Trantino's Brady claim cannot be sustained.

III.

We will affirm the order of the district court which dismissed Trantino's petition in all respects save one. With respect to the Brady claim asserted by Trantino, we will reverse and remand to the district court with directions that the Brady claim be dismissed for failure to exhaust state remedies.