to exhaust available state remedies. We do not find such "exceptional circumstances" here as would warrant our waiving the exhaustion requirement.
Petitioner does not allege, nor has she attempted to show, that the state courts have in any way frustrated the orderly disposition of her constitutional claim. She began her confinement in April, 1971. It was on her own application that she was released for approximately a year, returning to jail in May of this year.
Costello was decided in October, 1971. Petitioner did not invoke its principles until September of this year. It is petitioner herself who has created the chronology, not the state court process.
Moreover, what time would be saved were this Court to waive the exhaustion requirement? Our views coincide with Costello, that the disparate sentencing complained of is discriminatory and rests a heavy burden upon the state to justify it.
Like the Costello court, we believe a hearing is indicated. 59 N.J. at 346, 282 A.2d 748.
Counsel have advised that the Costello -directed hearing was never held because the defendant therein, cooperating with the authorities, apparently benefited thereby in a pragmatic sense. They further advised that a Costello -type hearing, as directed, was, however, held in June, 1972, in State v. Vacca, unreported, Indictment No. I. 455-69, Superior Court of New Jersey, Law Division, Middlesex County, before Superior Court Judge Charles M. Morris, Jr. At my request, the transcript thereof was forwarded to me. Its 600 pages contain factual and expert testimony, in the form of opinion, in a hard-fought and skillfully conducted adversary proceeding. Unfortunately, notwithstanding the Costello directive (59 N.J. at 346, 282 A.2d 748), Judge Morris failed to make findings of fact and conclusions of law. He did, however, decide that the state had failed to carry its burden and that the indeterminate sentencing scheme herein complained of was an unconstitutional abridgment of the equal protection clause of the Fourteenth Amendment. His decision is now, on appeal by the state, in the Appellate Division where it has been consolidated with petitioner's case.
If this Court were disposed to entertain this petition, even absent exhaustion, it would be necessary either to conduct another hearing, in this Court, Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), or address a request to Judge Morris for findings of fact and conclusions of law on his hearing. Cf. United States ex rel. Delle Rose v. LaVallee, 468 F.2d 1288 (2d Cir. 1972); but see United States ex rel. Singer v. Myers, 384 F.2d 279 (3d Cir. 1967), where the Court of Appeals remitted a petitioner to the state courts, only to have the Supreme Court reverse, in 392 U.S. 647, 88 S. Ct. 2307, 20 L. Ed. 2d 1358 (1968). Either alternative offers no real assurance that a speedy and easy determination would be forthcoming in this troublesome case. On balance, therefore, we decline to treat this matter as one involving those "exceptional circumstances" which would justify overriding the exhaustion requirement.
Petitioner has, as a request for alternative relief, asked that we grant bail in an amount which would enable her to be released from confinement pending final state court determination of her matter.
It is of course clear that a district court, pending a determination of an application for a writ of habeas corpus, has power to fix bail, as an incident of its power to compel production of the petitioner at a hearing. Johnston v. Marsh, 227 F.2d 528, 530 (3d Cir. 1955); cf. United States ex rel. Slough v. Yeager, 449 F.2d 755 (3d Cir. 1971); and see United States ex rel. Collins v. Claudy, 204 F.2d 624 (3d Cir. 1953); Application of Stecker, 271 F. Supp. 406 (D.N.J.1966), aff'd 381 F.2d 379 (3d Cir.), cert. denied, 389 U.S. 929, 88 S. Ct. 290, 19 L. Ed. 2d 280 (1967). See also Baker v. Sard, 137, 139, 137 U.S. App. D.C. 139, 420 F.2d 1342 (D.C.Cir. 1969); Tinkoff v. Zerbst, 80 F.2d 464 (10th Cir. 1936); Principe v. Ault, 62 F. Supp. 279 (N.D.Ohio 1945). It is noted, however, that the Bail Reform Act of 1966, 18 U.S.C. §§ 3146-3152, applies neither to state prisoners nor to habeas corpus, a civil proceeding. See Ballou v. Commonwealth of Massachusetts, 382 F.2d 292 (1st Cir. 1967).
That the power exists, however, is not to say that it should be readily exercised. Unlike a bail application pending direct appeal, bail incident to a filing of a petition for habeas corpus is sought by one who no longer enjoys the presumption of innocence. Thus, the power under these circumstances should be sparingly exercised. This is particularly true where a petitioner is already under confinement. United States ex rel. Epton v. Nenna, 281 F. Supp. 388, 389 (S.D.N.Y.1968). Nothing on the record presently before this Court justifies the granting of bail in this case, United States ex rel. Slough v. Yeager, 449 F.2d 755 (3d Cir. 1971), even were this Court to retain jurisdiction.
A fortiori, where the petition is being rejected for failure to exhaust state court remedies, it would scarcely be fitting for this Court to retain jurisdiction simply to grant bail. To be sure, the Court of Appeals, en banc, in United States ex rel. Johnson v. Cavell, 468 F.2d 304 (3d Cir. 1972), recently adopted the procedure of directing the district court to retain jurisdiction, while postponing a federal court hearing, until the state court had had an opportunity to afford a hearing to the petitioner in that case. The Court of Appeals distinguished Slayton v. Smith, 404 U.S. 53, 92 S. Ct. 174, 30 L. Ed. 2d 209 (1971), by finding "exceptional circumstances" under § 2254. Careful reading of Johnson leads this Court to distinguish it from the case at bar.
Accordingly, for the reasons set forth, it is on this 17th day of November, 1972,
Ordered that the petition of Viola J. Canfora for a writ of habeas corpus be, and the same hereby is, denied.
The Court is of the opinion that no probable cause for appeal exists in this case.