The opinion of the court was delivered by: WORTENDYKE
WORTENDYKE, District Judge:
Petitioner (Pierce) is presently serving a 16-23 year sentence pursuant to conviction, on November 25, 1959 in the Essex County Court of the State of New Jersey, for armed robbery. Petitioner is presently incarcerated in the New Jersey State Prison Farm, Rahway, New Jersey.
In this petition for a Writ of Habeas Corpus, petitioner alleges the erroneous admission into evidence of a purported confession, contending that this was a denial of due process of law under the Constitution of the United States.
Petitioner's application for Post-Conviction Relief under the Rules of Procedure of the State of New Jersey has been denied. There is no indication that petitioner has pursued the appellate procedure in the State of New Jersey but, in any event, time for such appeal has expired. It is necessary to exhaust only one of several alternative State remedies. Brown v. Allen, 344 U.S. 443, 448, 73 S. Ct. 397, 97 L. Ed. 469 (1953). The statutory requirement of exhaustion of State remedies refers only to such remedies as are still open to the petitioner at the time he files his application for habeas corpus. Fay v. Noia, 372 U.S. 391, 399, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
The transcript of petitioner's trial, at page 21, indicates that the trial court felt that it was within its discretion to hear testimony in regard to the voluntariness of the petitioner's incriminating statement in or out of the presence of the jury. The transcript also indicates that the question of voluntariness was heard and determined by the trial court in the presence of the jury. There was no objection by petitioner's counsel to this procedure. However, this procedure was erroneous. The question of voluntariness should have been heard in the absence of the jury. United States v. Carignan, 342 U.S. 36, 38, 72 S. Ct. 97, 96 L. Ed. 48 (1951) cited with approval in Jackson v. Denno, 378 U.S. 368, 395, note 23, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The petitioner was entitled to a State court hearing, on the question of voluntariness of his statement, in a proceeding separate and apart from the body trying the issue of his guilt or innocence. Jackson v. Denno, supra at 394, 84 S. Ct. 1774; cited with approval in United States ex rel. Dickerson v. Rundle, 363 F.2d 126, 130 (3rd Cir. 1966) reh. denied August 15, 1966. The trial court must hear the testimony and make a determination in the absence of the jury.
These further proceedings to which I find petitioner entitled should occur initially in the State court rather than in a federal habeas corpus proceeding. The State is entitled to make this determination before this Court considers the question on a petition for habeas corpus. Jackson v. Denno, supra, 378 U.S. at 393, 84 S. Ct. 1774.
It is, accordingly, ORDERED on this 29th day of September, 1966, that a Writ of Habeas Corpus issue but its effectiveness stayed pending a decision of the respondent to either appeal the Order of this Court or to grant petitioner an evidentiary hearing on the voluntariness of his statement. If at that hearing, it is determined that the statement, which was introduced into evidence at his trial, was voluntary and therefore admissible, a new trial will be unnecessary; however, if it is determined at that hearing that the statement was involuntary, the petitioner is required to be given a new trial with the statement, or statements, found to be involuntary, excluded. Failing this, the petitioner is entitled to be released. See United States ex rel. Dickerson v. Rundle, supra, 363 F.2d at 130.
This Court's Opinion and Order in this cause was filed on September 29, 1966, after deliberate study of the pertinent portions of the trial record and without having held a hearing. This procedure, of course, was proper. Brown v. Allen, 344 U.S. 443, 463, 73 S. Ct. 397, 97 L. Ed. 469 (1953). Subsequently, on October 3, 1966, the respondent moved for reargument. This motion was granted in the light of the significant Constitutional question involved. Thereafter, on October 10, 1966, petitioner filed a "Petition for Rehearing or Certificate of Probable Cause (In Forma Pauperis)". This Supplemental Opinion and Order will address itself to both the contentions urged by the respondent upon the return date of the motion for reargument and the further relief sought by the petitioner in his new application.
Respondent asserted the following contentions: (1) petitioner has not exhausted available State remedies; (2) the New Jersey procedure comports with the due process requirements of the Fourteenth Amendment; (3) the decision in Pierce should not be retroactive; (4) the Constitutional requirement is satisfied if the Court, with the jury present, in fact found the confession to have been voluntary; and (5) since a new trial is not required, the decision of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (June 13, 1966) is not applicable.
I find no merit in the first four contentions urged by the respondent. It is clear, not only upon the authority of United States v. Carignan, 342 U.S. 36, 38, 72 S. Ct. 97, 96 L. Ed. 48 (1951), Jackson v. Denno, 378 U.S. 368, 376-377, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and United States ex rel. Dickerson v. Rundle, 363 F.2d 126, 130 (3rd Cir. 1966), but also upon the additional authorities cited immediately hereafter, that failure of the trial court to conduct an initial, independent hearing, out of the presence of the jury, to determine the admissibility of a confession by resolving the question of voluntariness is a denial of due process within the intendment of the Fourteenth Amendment. Boles v. Stevenson, 379 U.S. 43, 45, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964); United States ex rel. Dickerson v. Rundle, 238 F. Supp. 218, 220 (E.D.Pa.1965); Mitchell v. Stephens, 353 F.2d 129, 144 (8th Cir. 1965) cert. denied 384 U.S. 1019, 86 S. Ct. 1966, 16 L. Ed. 2d 1042 (1966); Trotter v. Stephens, 241 F. Supp. 33, 46 (E.D.Ark.1965); Stewart v. Stephens, 244 F. Supp. 982, 993 (E.D.Ark.1965). However, as to the fifth point urged by respondent, that since a new trial is not required the decision of Miranda v. State of Arizona, supra, is not applicable, I am not convinced that this is so. Miranda must be followed in a retrial held after June 13, 1966 even though the original trial was held before that date. Gibson v. United States, 363 F.2d 146, 148 (5th Cir. 1966). This being so, it appears that the State of New Jersey would be bound to adhere to the dictates of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda in the event of a new hearing for petitioner in regard to the involuntariness claim. "Thus while ...