The opinion
LUMBARD, Circuit Judge
(dissenting) :
I dissent. I would remand to the district court with instructions to withhold issuance of the writ for a period of thirty days to enable Justice Gellinoff to make further and more detailed findings of fact to support his conclusion that Delle Rose’s confessions were voluntary. From the language used by Justice Gellinoff, it is abundantly clear that he believed the state’s witnesses on the issue of voluntariness and did not credit Delle Rose. Of course, it is true that the bare conclusion of voluntariness, without findings of fact, makes it possible that, with respect to conforming to the standards established by federal decisions, the trial judge’s findings might be insufficient, or that his conclusion on the voluntariness issue might not follow from the findings. However, it seems unlikely that such an experienced and able trial judge was not fully aware of the applicable standard and that any elucidation by him would not set the matter at rest.
The state court, which had had a full hearing on the issue with ample presentation of testimony, should have been permitted to clarify its findings of fact on the relevant issue before the federal district court was put to the task of holding a second evidentiary hearing. There is some precedent for remitting a federal habeas corpus petitioner to the state courts for an evidentiary hearing to determine the facts that are relevant to his federal constitutional claims. See Hart v. Eyman, 458 F.2d 334, 338 (9th Cir. 1972); Carter v. Eyman, 265 F.Supp. 957 (D.Ariz.1967). The majority notes that in United States ex rel. Singer v. Myers 384 F.2d 279 (3rd Cir. 1967), a ease in which the Third Circuit remitted the petitioner to the state courts, the Supreme Court summarily reversed. See 392 U.S. 647 , 88 S.Ct. 2307 , 20 L.Ed.2d 1358 (1968). I do not feel, however, that this necessarily defeats the result that I would reach here. For the Court was there concerned with the exhaustion prerequisite to federal habeas corpus relief. The Third Circuit had vacated the issuance of the writ on exhaustion grounds because of the possibility that the petitioner could, pursuant to a state post-conviction statute, petition the state courts for an evidentiary hearing on the voluntariness issue. In summarily reversing, the Supreme Court cited Roberts v. LaVallee, 389 U.S. 40 , 88 S.Ct. 194 , 19 L.Ed.2d 41 (1967). In that case, the Court had said:
In Brown v. Allen, 344 U.S. 443 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953), we considered the statutory requirement, under 28 U.S.C. § 2254 , that a petitioner exhaust his state remedies before applying for federal habeas corpus relief. We concluded that Congress had not intended “to require repetitious applications to state courts.” 344 U.S., at 499, n. 3 , 73 S.Ct. 397 . We declined to rule that the mere possibility of a successful application to the state courts was sufficient to bar federal relief, pp. 42-43, 88 S.Ct. p. 196.
It is clear that the Court’s reversal in Singer is inapposite here, for no one suggests that the writ should be denied for failure to exhaust state remedies. My objection is that the district court should not have held a hearing, in light of the full hearing held before Justice Gellinoff, until Justice Gellinoff had had an opportunity to clarify the doubts that petitioner has raised about the findings that were made in the state hearing. Before the district court held a second evidentiary hearing, it had to determine “that the merits of the factual dispute were not resolved in the State court hearing,” 28 U.S.C. § 2254 (d) (1), Town *1292 send v. Sain, 372 U.S. 293, 313 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963); for, otherwise, the state court findings were entitled to a presumption of correctness and the burden was on the petitioner to establish by convincing evidence that they were erroneous. 28 U.S.C. § 2254 (d). It is my view that when the state court record is, at most, unclear, as it is here, the district court should permit the state court to clarify its findings before it determines whether the material facts were resolved in the state court hearing and proceeds with a new evidentiary hearing. This has nothing to do with the exhaustion requirement, which I concede to be met here, that concerned the Supreme Court in Singer and Roberts .
I believe that the federal courts should make every effort and provide every opportunity to allow the state courts to tie up the ribbons and amend and clarify their rulings so that their judgments may stand. As I have indicated, nothing in this approach seems to me to be inconsistent with the requirements of 28 U.S.C. § 2254 (d). If the state courts, after having an opportunity to clarify their findings, fail to do so within a reasonable time, then it may be proper for the federal district court to proceed with a new evidentiary hearing. Until the state courts have had this opportunity, however, the district court should not proceed with a new hearing on the issue.
My view of the proper resolution of this case is reinforced by the Supreme Court’s language in Townsend v. Sain, supra, which was the precursor of revised § 2254. Chief Justice Warren, speaking for the Court, said:
We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing;
If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. In some cases this will be impossible, and the Federal District Court will be compelled to hold a hearing.
Reconstruction is not possible if it is unclear whether the state finder applied correct constitutional standards in disposing of the claim. Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the petitioner’s contentions. Since the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts, a hearing is compelled to ascertain the facts. Of course, the possibility of legal error may be eliminated in many situations if the fact finder has articulated the constitutional standards which he has applied. Furthermore, the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that we think the district judge may, in the ordinary case in which there has been no articulation, properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied. Thus, if third-degree methods of obtaining a confession are alleged and the state court refused to exclude the confession from evidence, the district judge may assume that the state trier found the facts against the petitioner, the law being, of course, that third-degree methods necessarily produce a coerced confession, pp. 313-315, 83 S.Ct. pp. 757, 758.
This language indicates to me that we might even be justified in holding, without the need for any clarification from the state court, that it was improper for the district judge to hold an evidentiary hearing. In any event, it indicates that *1293 the district court was in error in ignoring the prior hearing and determination by Justice Gellinoff on the voluntariness issue.
Here again, as in many hundreds of cases since Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963), a federal district court is second-guessing numerous state court judges, who, as the majority concedes, are as familiar as federal judges with the standards governing the admissibility of confessions and have shown no unwillingness to apply them, and all of whom are agreed that the confessions were voluntary and the conviction was properly arrived at. As in many hundreds of cases since Fay v. Noia, federal court intervention threatens to free a man who, beyond any doubt, was guilty of the deliberate murder of his wife. It seems to me that a decent respect for the public interest, as well as for the state courts, requires us to stay our hand when, at most, the record seems equivocal.