Moore, Woodbury*fn* and Smith, Circuit Judges.
Appellants Levy and D'Antonio, codefendants, were convicted in the New York Supreme Court of kidnapping, robbery and possession of a pistol. The Appellate Division affirmed. People v. Levy, 20 A.D.2d 518, 244 N.Y.S.2d 497 (1963). The Court of Appeals modified the judgment by reversing the kidnapping conviction but affirming the other counts. People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965). The Supreme Court denied certiorari. Levy v. New York, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965); D'Antonio v. New York, 382 U.S. 865, 86 S. Ct. 131, 15 L. Ed. 2d 103 (1965)
Both appellants sought federal habeas corpus relief. In each of their petitions the principal claim on which available State remedies had been exhausted*fn1 was that petitioner had been denied due process when the State called Daniel Cohen to the stand to testify. Before trial, Cohen had signed a statement implicating defendants in the crime. However, before testifying, he had advised the Court and the State that he would claim his privilege against self-incrimination. Nevertheless, the Court ordered him to take the stand and allowed the State to read his prior statement. The Court also held him in contempt. The next day Cohen agreed to testify; he was then available for cross-examination.
In addition to this principal ground for relief, Levy included two additional claims in his petition -- (1) that the Court and the prosecution had coerced Cohen into testifying, and (2) that he had been denied the right to confront and cross-examine the witness. Since Levy had not exhausted available State remedies as to these claims, the district judge dismissed the entire petition, in the "interest of comity," for failure to exhaust State remedies. 28 U.S.C. § 2254.
D'Antonio claimed only the exhausted ground for relief. However, a prior petition had included two additional unexhausted claims -- (1) that he had been denied a jury trial, and (2) that the conduct of the court and prosecution had denied him a fair trial. This prior petition had been dismissed in its entirety for failure to exhaust available State remedies.*fn2 The district judge, therefore, dismissed this application, too, for "the petitioner, by fragmentizing claims heretofore presented * * * seeks to circumvent the requirement of exhaustion of available State remedies."
Levy and D'Antonio appeal from these dismissals. Since we believe that the district judges should have considered the merits of the exhausted claims,*fn3 we reverse and direct the judges to hold appropriate hearings.
Roberts v. LaVallee, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967) (per curiam), held that a federal court must, in certain circumstances, consider a State prisoner's claim, even though relief is available in the State courts. Citing Roberts, this Court recently held that a district court must consider an exhausted claim even though an unrelated claim is pending in the State. United States ex rel. Sniffen v. Follette, 393 F.2d 726 (2 Cir., 1968). Since Levy's unexhausted claim -- that Cohen was coerced into testifying -- is unrelated to his principal claim, there is no basis for dismissing the petition in toto.*fn4 Moreover, although Levy's other unexhausted claim -- that he was denied the right to cross-examine and confront the witness -- might be related to his principal claim, United States ex rel. McBride v. Fay, 370 F.2d 547 (2 Cir. 1966), it is frivolous.*fn5 Therefore, in these circumstances, a dismissal of the entire petition would be, at best, a waste of petitioner's and the State's time and, at worst, so frustrating that petitioner, having exhausted his energies, might submit to the alleged injustices. United States ex rel. Kling v. LaVallee, 306 F.2d 199, 203 (2 Cir. 1962) (concurring opinion).
D'Antonio's case follows a fortiori from Levy's. His unexhausted claims, while not included in this petition, are unrelated to the principal claim of this petition.
We recognize the dilemma presented to a district judge in situations where a petition includes both exhausted and unexhausted claims. Watson v. Patterson, 358 F.2d 297, 298 (10 Cir.), cert. denied, 385 U.S. 876, 87 S. Ct. 153, 17 L. Ed. 2d 103 (1966). If he considers the exhausted issues, he is possibly fostering "needless piecemeal litigation."*fn6 Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). If he refuses to consider the exhausted issues, he is "severely limit[ing] the scope of the federal habeas corpus statute." Roberts v. LaVallee, supra, 389 U.S. at 43, 88 S. Ct. at 196. However, where the unexhausted claims are either unrelated to the principal exhausted claim or frivolous, the desirability of including all grounds for habeas corpus in a single petition does not outweigh the interests of a prisoner in obtaining prompt federal consideration of exhausted claims. United States ex rel. Boyance v. Myers, 372 F.2d 111, 112 (3 Cir. 1967).
We wish to express our thanks to Mr. Peter Lushing for the preparation under-taken in connection with this appeal and the presentation thereof.
Reversed and remanded for consideration of petitioners' State ...