Friendly, Chief Judge, and Lumbard, Waterman, Moore, Smith, Kaufman, Hays, Feinberg, Mansfield, Mulligan, Oakes and Timbers, Circuit Judges. Friendly, Chief Judge, with whom Mulligan, Circuit Judge, joins concurring. Waterman, Circuit Judge (concurring). J. Joseph Smith, Circuit Judge (concurring). Irving R. Kaufman, Circuit Judge (concurring). Feinberg, Circuit Judge (concurring). Mansfield, Circuit Judge (concurring). Oakes, Circuit Judge (concurring). Lumbard, Circuit Judge (dissenting), with whom Moore and Hays, Circuit Judges, concur.
The District Court for the Northern District of New York having, by order date December 23, 1969, directed the release of petitioner Eugene Rodriguez, on the ground that he was unconstitutionally deprived of good behavior time credit, in an opinion reported at 307 F. Supp. 627, and a panel of this court by decision dated March 16, 1971, 451 F.2d 730, having reversed said order by a divided vote;
The District Court for the Northern District of New York having, by order dated August 18, 1970, directed the release of petitioner Michael Katzoff, on the ground that he was unconstitutionally deprived of good behavior time credit, and this court by decision dated March 29, 1971, 441 F.2d 558, having reversed said order by a divided vote;
The District Court for the Northern District of New York having, by order dated June 12, 1970, directed the release of petitioner John Kritsky, on the ground that he was unconstitutionally deprived of good behavior time credit, and this court having heard but not decided the State's appeal therefrom;
This court, by order dated July 19, 1971, having directed that the appeals in such cases be reheard in banc, the three appeals being consolidated for argument since they presented the same legal issue, before an in banc court which would consist of the judges who should be in active service on the date of decisions along with members of the respective panels who had taken senior status, and the court having received further briefs and heard oral argument, it is
Ordered that the said judgments of the District Court for the Northern District of New York be and they hereby are affirmed upon consideration of the merits and upon the authority of Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418, decided by the Supreme Court of the United States on December 14, 1971.
FRIENDLY, Chief Judge, with whom MULLIGAN, Circuit Judge, joins concurring:
Although I had previously voted for reversal in these cases, it seemed to me that once Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418, was decided by the Supreme Court on December 14, 1971, the proper course for the in banc court was to affirm the orders of the district court without writing opinions, and to leave it to the State of New York to assert possible distinctions by petitions for certiorari. Now that several of my brothers have chosen to dissent in an opinion, I feel obliged to explain my own position.
I agree with Judge Lumbard that petitions of state prisoners complaining of the time or conditions of their confinement have the same potentialities for exacerbating federal-state relations as petitions attacking the validity of their confinement -- perhaps even more. That federal concern on this score is not limited to challenges to the validity of convictions is evidenced by cases such as Ex parte Royall, 117 U.S. 241, 251, 6 S. Ct. 734, 29 L. Ed. 868 (1886), from which the exhaustion requirement sprang, and Dye v. Johnson, 338 U.S. 864, 70 S. Ct. 146, 94 L. Ed. 530 (1949), reversing per curiam, 175 F.2d 250 (3 Cir.1949). On the other hand, I cannot accept the conclusion that if such petitions are properly viewed as invoking 42 U.S.C. § 1983, a federal court can require exhaustion of state judicial remedies, if these are available. This is not simply because of the Supreme Court pronouncements which, except for the summary dispositions in Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968) and in Wilwording v. Swenson, were not in state prisoner cases, but because abstention would mean abdication in any case where the state afforded a fair hearing, whether the proper constitutional standards were applied or not. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1963); Lackawanna Police Benevolent Ass'n v. Balen, 446 F.2d 52 (2 Cir.1971), and cases there cited.
The right answer, it seems to me, is that, under the broad scope the Supreme Court has given to the "Great Writ" as enacted by the Act of 1867, 14 Stat. 385, all state prisoner petitions complaining of the length or manner of custody, however phrased, are in fact petitions for habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court . . . on the ground that he is in custody in violation of the Constitution or laws of the United States." Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); Walker v. Wainwright, 390 U.S. 335, 88 S. Ct. 962, 19 L. Ed. 2d 1215 (1968); Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968); Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969). If they are, 28 U.S.C. § 2254(b) forbids a federal court from proceeding in the first instance "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 exception sufficiently broad to enable a federal court to look at what the state courts actually do. Because of the inapplicability of res judicata in habeas corpus, recognition that such petitions are for that remedy also means that an aggrieved prisoner who has not received satisfaction at the hands of a state court can return to the federal court for a "final federal say" concerning the appropriate legal standard, although the federal court will be bound by proper state factual findings. I recognize that a number of cases, including Houghton v. Shafer, supra, and Jackson v. Bishop, 404 F.2d 571 (8 Cir.1968), cited by the Court in Wilwording, have assumed that state prisoner complaints over the conditions of custody come under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) rather than under 28 U.S.C. § 2254. But the issue was not there raised, and the problem of such prisoner applications had not yet reached its present dimensions.
If this is the correct analysis, I do not understand how a state prisoner who is entitled to relief by habeas corpus under 28 U.S.C. § 2254 can opt out of that section, with its attendant requirement of exhaustion of state remedies when these are available, simply by styling his petition as one under the Civil Rights Act. But Wilwording seems to indicate that he can. For that reason I am constrained to concur in affirming the orders of the district court.
WATERMAN, Circuit Judge (concurring):
I concur in the affirmance of the judgments below and in the opinions of my brothers Smith, Kaufman, Feinberg and Oakes. And see my statement filed in ...