The opinion of the court was delivered by: LANE
In this application for writ of habeas corpus petitioner claims that he is being restrained of his liberty in violation of the Constitution of the United States. Petitioner's incarceration is pursuant to three 7 to 10 year sentences, running concurrently, imposed on February 24, 1961, by the New Jersey Superior Court after petitioner's conviction by plea to a three-count indictment charging armed robbery. Petitioner asserts he is scheduled to be released from the New Jersey State Prison in Trenton on or about February 22, 1967.
Following the decision of the Appellate Division ordering the expunging of sentence, petitioner by correspondence with that court sought to be credited with the time illegally served. He was advised by the deputy clerk to take the matter up with the Parole Board, which petitioner did, but to no avail. Petitioner then applied for post-conviction relief under N.J.R.R. 3:10A in the Superior Court, making the same request. After a hearing relief was denied. Before that decision was rendered he had sought administrative relief from the State of New Jersey, Department of Institutions and Agencies. In a letter dated March 11, 1965, the agency, finding no authority for granting the relief, denied the request. Although no appeal was taken from the denial of post-conviction relief, petitioner did appeal from the denial of administrative relief by instituting a proceeding in lieu of prerogative writs in the Superior Court, Appellate Division, under N.J.R.R. 4:88-8. On June 21, 1965, his appeal was dismissed as being without merit. The court could find no authority, either statutory or decisional, for the granting of his claim. No further action was taken in that case.
Petitioner has also filed a claim with the New Jersey State Legislature, Office of Legislative Budget and Finance Director, seeking either compensation
for the time illegally served or credit against his present sentence. In a letter dated August 12, 1966, his claim was denied following action on it by the Subcommittee on Claims of the Joint Legislative Appropriations Committee.
Before considering the merits of petitioner's contention, it is necessary to determine if he has exhausted state remedies. Section 2254 of 28 U.S.C. provides:
An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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 applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
It has been repeatedly stated that the exhaustion doctrine is a rule of comity rather than a jurisdictional prerequisite. See e.g., Bowen v. Johnston, 306 U.S. 19, 27, 59 S. Ct. 442, 83 L. Ed. 455 (1939) where the Court referred to the rule as "not one defining power but one which relates to the appropriate exercise of power." It is "a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Fay v. Noia, 372 U.S. 391, 420, 83 S. Ct. 822, 838-839, 9 L. Ed. 2d 837 (1963). The rationale behind the rule is that "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct 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 ...