United States of America Ex Rel. Thomas Kling, Relator-Appellant v. J. E. Lavallee, Warden of Clinton Prison, Dannemora, New York

FEIENDLY, Circuit Judge

(concurring) .

Although agreeing with my brothers’ disposition of this appeal, I would not wish to be committed to a rule that when a state prisoner has exhausted all remedies the state had made available to him up to the date when he sought Federal habeas corpus, 1 he must always be sent back on another journey through the state courts if the state, commendably, enlarges its post-conviction remedies thereafter, as New York did here by the decision in People v. Borum, 8 N.Y.2d 177 , 203 N.Y.S.2d 84 , 168 N.E.2d 527 (1960), rendered shortly after Kling’s petition was filed. At least on a literal reading, the first alternative of 28 U.S.C. § 2254 is satisfied by one exhaustion; al- • ways to require a second, not to speak of a third or a fourth, might well invite the reproach that it is the prisoner rather than the state remedy that is being exhausted. I do not read Walker v. Ragen, 338 U.S. 833 , 70 S.Ct. 37 , 94 L.Ed. 507 (1949), and Marks v. Ragen, 339 U.S. 926 , 70 S.Ct. 613 , 94 L.Ed. 1347 (1950), as going so far. See my dissent from the denial of a certificate of probable cause and leave to appeal in forma pauperis in United States ex rel. Buckley v. Wilkins, decided June 15, 1962.

However, sound judgment may sometimes dictate that a Federal habeas corpus petitioner who has exhausted every state remedy previously available should be required also to take advantage of an expanded one the state has later provided. This is such a case. Here Kling had not succeeded in proceeding on the merits in the state courts beyond the first level, and the broadened remedy was made available only six months after his first exhaustion had been completed by the denial of certiorari, 361 U.S. 935 , 80 S.Ct. 376 , 4 L.Ed.2d 356 (1960), and a fortnight after his habeas corpus petition was filed. Moreover, here we do not have a prisoner who will be entitled to his liberty even if he prevails in Federal habeas corpus and then in a new criminal trial (if the state decides to conduct one); Kling will not be entitled to be set free until 1966, unless, after success on his part, first in Federal habeas corpus and then on a new trial, the New York parole board should intervene in his favor. Indeed, I entertain the most serious doubt whether Federal habeas corpus now lies at all. Although the distinction of McNally v. Hill, 293 U.S. 131 , 55 S.Ct. 24 , 79 L.Ed. 238 (1934) and Holiday v. Johnston, 313 U.S. 342, 349 , 61 S.Ct. 1015 , 85 L.Ed. 1392 (1941), cf. Ex parte Hull, 312 U.S. 546 , 61 S.Ct. 640 , 85 L.Ed. 1034 (1941), made by assigned counsel on the basis that in McNally and Holiday the questioned sentence was* consecutive to, rather than concurrent with and longer than, the admittedly valid one, is ingenious, it seems to me of questionable validity in view of the identity of the practical results sought by McNally, Holiday and Kling and the dubious policy of employing the writ and possibly forcing a state to conduct (or forego) a new criminal trial, where the only immediate result will be to enable the prisoner to present to a state parole board an application which the Federal constitution gives, the board complete freedom to deny 2 — Federal habeas corpus is not the remedy for every ill to which flesh is heir. This is a case of eases in which it is best that the state courts have a full look before the United States intervenes.

. By putting the issue in this manner, I do not mean to intimate that I would reach a different result if the new state remedy was born after the first exhaustion and before the filing of the Federal habeas corpus petition; this case presents the issue in the form more favorable to the prisoner, hence I state it that way.

. I recognize that a collateral result would be an earlier opening of the prison gates after the valid sentence has been served.