Friendly, Chief Judge, and Moore and Oakes, Circuit Judges.
This appeal from the denial of a New York state prisoner's application for habeas corpus by the District Court for the Western District of New York raises the issue whether an appellate court, having determined that highly material evidence was erroneously received and that relator's conviction for a more serious offense must therefore be reversed, can constitutionally render a judgment of conviction and impose sentence for a lesser offense for which the untainted evidence would have sufficed. Relator contends that the procedure which New York has here followed has denied him due process of law by depriving him of a trial with respect to the crime for which he was convicted and also of his right to be heard, and to be represented by counsel, with respect to sentence thereon.
The brother and sister-in-law of Lucille Graham, wife of the relator Burton Graham, found her dead, floating face down in the bathtub of her home in Elmira, N. Y., around 12:30 P.M. on August 26, 1961. The Grahams' marital history had been stormy. This was due, on the husband's version, primarily to her cruel treatment of her child by a prior marriage and the three children born to her and Burton, to all of whom he was exceptionally devoted and whose care he had undertaken in an unusual degree. In February, 1961, Lucille sought a separation. The judge asked Burton to leave the home in order to give the Probation Department and the Child and Family Service an opportunity to work on the case.*fn1 He did this, with a limited visiting schedule. In May he filed a complaint with the Probation Department, asserting that Lucille was an unfit mother. In mid-August she was hospitalized for four days; Burton moved back and cared for the three children.
Within a short time after the discovery of Lucille's body, Burton was questioned by Detective Connelly and others at the office of the district attorney for Chemung County. About an hour and a half later he made a statement in question and answer form: He had left his room about 3:15 A.M. and walked over to his wife's house. After entering through a kitchen window, he had gone upstairs and attempted to persuade her to put the children temporarily in a foster home. She flew into a rage and dug her fingernails into his face.*fn2 In order to protect himself, he cut off her breath by holding his hand over her mouth and nose. When she quit struggling, he carried her into the bathroom, placed her in the tub, turned the cold water on,*fn3 and left. He "didn't realize that she was unconscious enough but what she would be able to get out." He denied knowing she was already dead or would drown.
After he had given the statement, Burton was placed under arrest. That evening he was arraigned on a charge of murder in the second degree. The judge advised him that he had a right to an attorney and to a stay of proceedings for a reasonable time in which to secure one.
Six days later, on September 1, Detective Connelly, the assistant district attorney and the chief deputy questioned Graham at the county jail. No attorney for him was present. Connelly asked Graham if he had a lawyer, to which the reply was negative,*fn4 but did not advise that he was not required to answer without having consulted one. Graham signed and swore to a statement typed by Connelly. This was substantially more damaging than his first statement. He revealed that on earlier visits in August he had typed out two notes, which the police had found in the house, and had typed his wife's name to them. In one of these, addressed to the Police, she admitted to having told various lies, abused the children, had extra-marital affairs, and attempted suicide; she announced she was "going away." In the other, addressed to "Burt," she praised his conduct and admitted frequent illicit sexual acts, the latest in some detail; she indicated she was "leaving" and asked Burt not to place the children in a foster home. Graham said he had left these notes at the foot of the steps as he went up to Lucille's room on the night of August 26. Even more important, he admitted that, after he had placed Lucille in the bathtub, she was still struggling and screaming; that he placed his hand "over her mouth and nose for a couple of minutes"; that she then went limp; and that he left the room "knowing she was dying or going to drown." He concluded that his statement of August 26 "was not an honest or true statement." Thereafter Graham was indicted for murder in the first degree.
At the trial, held in 1962, both statements and the notes were received in evidence. Graham testified substantially in accordance with his August 26 statement, although elaborating further on Lucille's cruelty toward the children and his own devotion to them. The prosecution's medical testimony was that Lucille's death was caused by asphyxiation due to drowning. The defense medical expert agreed that the death was due to asphyxiation but testified that it was impossible to determine the cause and that Lucille might have died from pulmonary edema due to natural causes. The jury found Graham guilty of murder in the second degree.
Before decision of Graham's appeal by the Appellate Division for the Third Department, People v. Graham, 20 A.D.2d 949, 249 N.Y.S.2d 97 (1964), the New York Court of Appeals had ruled in People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962), that "any statement made by an accused after arraignment not in the presence of counsel . . . is inadmissible." Id. at 165, 227 N.Y.S.2d at 428. The Appellate Division concluded on this basis that the statement of September 1 and the two notes were inadmissible;*fn5 that their admission gave rise to substantial prejudice; and that the absence of objection or exception, save as to the notes, "does not vitiate our right, nor relieve us of . . . our clear duty to reverse for injustice so manifest and so substantial," citing former N.Y.Code Crim. Proc. § 527, 20 A.D.2d at 949, 249 N.Y.S.2d at 99. After referring to § 543 of the former Code of Criminal Procedure,*fn6 the court concluded that the evidence apart from the post-arraignment statement and the notes was insufficient to sustain a conviction of murder in either degree, and "we are therefore constrained to exercise our power to modify the judgment." Id. It did this by deleting the portion sentencing Graham for murder in the second degree and "so as to convict him of the crime of manslaughter in the first degree. . . ." Id. For this he was sentenced to a term of not less than 10 nor more than 20 years, the maximum permitted by law.*fn7 Graham, acting pro se, sought leave to appeal to the Court of Appeals; this was denied on July 22, 1964.
On November 5, 1964, Graham filed a pro se petition for habeas corpus in the District Court for the Western District of New York. He alleged that the action of the Appellate Division had resulted in his conviction without a trial; that when an appellate court finds a conviction to have resulted from improperly admitted evidence, a new trial is required; that the August 26 statement also was illegally obtained; and that he was tried and sentenced without counsel. The record shows no return by the State pursuant to 28 U.S.C. § 2243; in accordance with what we understand to be the general practice in upstate New York, the district attorney for Chemung County merely presented the record of the state proceedings.
Early in 1965 Graham brought a state coram nobis proceeding addressed to the voluntariness of his August 26 statement, and obtained a hearing pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). Having "serious doubts" about the voluntariness of the statement, the judge who had presided at the trial held its admission to have been error and set aside the conviction; at this time, October 22, 1965, Graham was released on bail. The Appellate Division reversed with an opinion, 27 A.D.2d 203, 277 N.Y.S.2d 943 (1967), and the Court of Appeals affirmed the Appellate Division without one, 27 N.Y.2d 616, 313 N.Y.S.2d 753, 261 N.E.2d 661 (1970). Bail was then revoked and Graham was remanded. In February 1971, the district court refused to issue the writ; we granted a certificate of probable cause.
We are met at the outset by the State's contention, apparently advanced for the first time in this court, that Graham has failed to exhaust available state remedies with respect to the 1964 action of the Appellate Division; it argues that Judge Burke's finding, "The petitioner has exhausted available state remedies," must be read as limited to the August 26 statement. It suggests that Graham should now move under § 440.10, subd. 1(h) of the Criminal Procedure Law, McKinney's Consol.Laws c. 11-A, before the trial court to vacate the judgment entered on remittitur from the Appellate Division in 1964. While it recognizes that the trial court would feel bound to deny the motion because of the Appellate Division's mandate, it proposes that Graham then move for leave to appeal to the Appellate Division under N.Y. Criminal Procedure Law, § 450.15(1). If such leave were denied, apparently that would be the end of the road within the state system, Criminal Procedure Law § 450.90.
We are not disposed to send Graham back to the state courts for further proceedings when the State has sat by for seven years after the filing of this petition without making any suggestion that this is required.*fn8 To do so "might well invite the reproach that it is the prisoner rather than the state remedy that is being exhausted." U. S. ex rel. Kling v. LaVallee, 306 F.2d 199, 203 (2 Cir. 1962) (concurring opinion). Although Graham's pro se motion for leave to appeal from the Appellate Division cannot now be found, there is every reason to think it raised substantially the same points presented in his wellwritten habeas petition a few months later. Graham was surely not seeking leave to appeal from the reversal of his second degree murder conviction; the conviction for first degree manslaughter and the imposition of sentence thereon must almost certainly have been the subject of his motion for leave to appeal. At least the inference of this is sufficiently strong to transfer to the State the burden of coming forward with evidence to negate it. If Graham adequately raised his constitutional objections on these points in his motion for leave to appeal to the New York Court of Appeals, he was not required to seek postconviction relief on the same grounds, at least where, as here, no further development of the facts beyond the record before the appellate court was needed for proper resolution of these constitutional claims. Brown v. Allen, 344 U.S. 443, 447, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Roberts v. La Vallee, 389 U.S. 40, 42-43, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967); Thompson v. Peyton, 406 F.2d 473, 474-475 (4 Cir. 1968); Tyler v. Swenson, 440 F.2d 621, 623 (8 Cir. 1971). In any event, the exhaustion requirement of 28 U.S.C. § 2254 is not jurisdictional and courts may deviate from it in those rare instances where justice so requires. Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761 (1950). See, e. g., Thomas v. Cunningham, 335 F.2d 67, 69-70 (4 Cir. 1964); Brown v. Fogel, 387 F.2d 692 (4 Cir. 1967); Jenkins v. Fitzberger, 440 F.2d 1188, 1189 n. 2 (4 Cir. 1971). Here the probability that Graham raised the issue in his motion for leave to appeal or in his coram nobis proceeding, see note 8, or in both, is so great that we must deal with his complaint on the merits.
We think the Appellate Division, by what doubtless was inadvertent error, wrongly assimilated a case where evidence supporting a conviction of a more serious offense had been unlawfully received to one where the evidence was merely insufficient for that purpose. In the latter event, the trier of the facts has already found every element of a lesser included offense on evidence which was properly before it. In such a case there is no unfairness in the appellate court's modifying the judgment to apply only to the lesser offense, of which the jury could properly have convicted and surely would have,*fn9 although it may well be that, even in such a case, the defendant is constitutionally entitled to a new sentencing on the lesser crime at which he will have the assistance of counsel. See Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967), held fully retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968).*fn10 In contrast, here it is sheer speculation what the jury would have done if the September 1 confession and the admittedly fabricated notes had not been before it. To be sure, the August 26 statement and the medical and other evidence would have been sufficient to sustain a conviction for first degree manslaughter, or even perhaps for second degree murder as the judge dissenting in the Appellate Division thought, see note 7, supra, whether or not Graham had taken the stand. But without the material held to have been erroneously received, there would have been a sharp issue of credibility whether Graham had merely done what he deemed necessary to quiet Lucille and had left believing that she was alive and the cold water would shortly revive her, or whether he had caused her death "in the heat of passion, but in a cruel and unusual manner." Former N.Y. Penal Law § 1050(2), McKinney's Consol.Laws c. 40. It is not a sufficient answer that the justices of the Appellate Division may well have been justified in thinking that the latter conclusion would have been the more reasonable or even that the former would have been unreasonable. A jury hearing solely the evidence held to have been legally admissible might well have found Graham guilty of only second degree manslaughter, former New York Penal Law § 1052, if indeed it did not exercise its "power to bring in a verdict [of acquittal] in the teeth of both law and facts." See Horning v. District of Columbia, 254 U.S. 135, 138, 41 S. Ct. 53, 54, 65 L. Ed. 185 ...