a constitutional violation * * *." Id. at 419-420, 83 S. Ct. at 838.
A general statement of the requirements of the exhaustion doctrine is that the matter involved in the application for habeas corpus must first be presented for adjudication to the highest court in the state. See Thomas v. Cunningham, 313 F.2d 934, 937 (4th Cir. 1963); Grundler v. State of North Carolina, 283 F.2d 798, 800 (4th Cir. 1960). It is not necessary that the claim be actually adjudicated as long as it has been presented to that court. In re Thompson's Petition, 301 F.2d 659, 660 (3d Cir. 1962) (dictum).
Once the matter has been presented to the highest state court on direct appeal, it is not necessary to present it to them again on collateral attack. Brown v. Allen, 344 U.S. 443, 447, 73 S. Ct. 397, 97 L. Ed. 469 (1954); see United States ex rel. Smith v. State of New Jersey, 201 F. Supp. 272, 276 n. 1 (D.N.J. 1962), aff'd, 322 F.2d 810 (3d Cir. 1963), cert. denied, 376 U.S. 928, 84 S. Ct. 678, 11 L. Ed. 2d 623 (1964). Likewise, if the matter has not been presented to the state's highest court on direct review it is sufficient for purposes of exhausting state remedies if it is presented to them on collateral attack. United States ex rel. Kaiser v. Mahan, 233 F. Supp. 1, 4 (D.N.J. 1964). The effect of these rules is that repetitious litigation is not required.
A further limitation on the exhaustion doctrine is that it is not necessary for the petitioner first to present his claim to the state court where the state relief will prove ineffective either because of "procedural snarls or obstacles," see Bartone v. United States, 375 U.S. 52, 54, 84 S. Ct. 21, 11 L. Ed. 2d 11 (1963), or because the highest court in the state has already decided the question of law involved adversely to the petitioner's contentions and is not likely to reverse itself, see Davis v. Maryland House of Correction, 247 F. Supp. 869, 871 (D. Md. 1965); Application of DeToro, 247 F. Supp. 840, 841, 842 (D. Md. 1965). The reason for these rules is generally described as that of avoiding an exercise in futility.
Another major definitional limitation on the exhaustion doctrine is that it requires the exhaustion of only those state remedies that are still available to the petitioner at the time he files his application in the federal court. Fay v. Noia, supra, 372 U.S. at 435, 83 S. Ct. at 847. However, the federal judge may exercise his discretion "to deny relief to one who has deliberately sought to subvert or evade the orderly adjudication of his federal defenses in the state court." Id. at 433, 83 S. Ct. at 846.
Applying these rules to the instant case, we conclude that petitioner has sufficiently exhausted his state remedies. Although petitioner has never presented his claim to the Supreme Court of New Jersey on either direct or collateral attack, at the time of filing this petition he has no effective channel of relief still opened to him in the state.
Nor is there any evidence that this is due to a deliberate by-passing by him of his state remedies.
It seems clear that this petition presents solely a question of law and therefore no evidentiary fact-finding hearing is required. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).
The writ of habeas corpus extends to state prisoners held "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Its most important purpose is to give state prisoners a federal forum for the litigation of their federal claims. The petitioner's major contention in this action is that the state's failure to credit the time illegally served under a prior sentence against the time owing under his present sentence constitutes a denial to him of due process of law in violation of the fourteenth amendment. If this is true, the fact that there is no statutory or decisional authority in the State for the relief requested is no bar to our granting relief. As Mr. Justice Frankfurter stated in Brown v. Allen, supra, 344 U.S. at 510, 73 S. Ct. at 448:
"Insofar as this [habeas] jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law."
The question of law we have before us is novel. The case of Hill v. Holman, 255 F. Supp. 924 (M.D. Ala. 1966), however, deals with a somewhat similar situation and is relied upon by the petitioner. In that case Hill was sentenced on four different indictments on the same day by the same court. On the first, he received ten years; on the second, ten years; on the third, one year and one day; and on the fourth, one year and one day. The four sentences imposed were to run consecutively. At the time of filing his application for habeas corpus Hill had already served the first, third, and fourth sentences. As to the second, Hill was able to have that judgment set aside after having served six years of it. On his retrial on the second indictment, Hill entered a plea of guilty on a lesser charge and received a sentence of one year and one day.
In granting the relief sought in his habeas corpus application, the court held that Hill was entitled to have the six years spent on the erroneous sentence imposed in the second case credited against his new sentence in the same case. In so holding, the court used broad language which petitioner Bauers contends is applicable to his case. The court stated at 925:
"The constitutional requirements of due process will not permit the State of Alabama to require petitioner Hill, or any other prisoner for that matter, to be penalized by service in the state penitentiary because of an error made by the state circuit court. Petitioner Hill was entitled to have his illegal sentence vacated. * * * He is also entitled to have the time he served on the erroneous sentence in [that] case * * * before it was vacated applied on the valid sentence that was [subsequently] imposed in that case * * *. The record in this case is clear that, instead of Hill's owing the State of Alabama any additional time, the State of Alabama owes Hill for illegal incarceration for a period of between four and five years."