The opinion of the court was delivered by: BIUNNO
BIUNNO, Senior District Judge.
Shortly after the order in lieu of mandate was filed by the clerk of this court, an order was entered to carry out the instructions mentioned.
Thereafter, petitioner's attorney submitted for entry an order, consented to as to both "form and entry" by both sides.
The order proposed would direct that the petition originally filed here on November 16, 1979 be amended to assert a single ground for relief (para. 11-B, at p.2 of the petition, and argued at pages 20 through 37 of the petition).
The ground specified in para. 11-B reads:
"Conviction obtained by a violation of petitioner's privilege against self-incrimination."
The heading on the argument pages indicated reads:
"THE PROSECUTORS' REMARKS IN SUMMATION CONSTITUTED AN IMPERMISSIBLE COMMENT ON DEFENDANT'S FAILURE TO TESTIFY, IN VIOLATION OF PETITIONER'S FIFTH AND FOURTEENTH AMENDMENT RIGHTS."
This is the ground on which this court originally had granted a conditional writ; see Santana v. Fenton, 570 F. Supp. 752 (D.N.J. 1981), and the discussion on appeal in 685 F.2d at 72-73.
The difficulty here is that petitioner has failed to demonstrate that he has exhausted state remedies available when his petition was filed, with respect to the comments in summation that are complained of.
In another § 2254 matter, an extensive analysis by this court has shown that every item that may be the subject of a claim for § 2254 relief is, under the 1947 N.J. Constitution, a matter appealable as of right, and not by permission, to the Supreme Court of New Jersey. See U.S. ex rel. Herring v. Fenton, 531 F. Supp. 937, especially at 943-947 (D.N.J. 1981).
That decision was handed down after this court's ruling in Santana, 570 F. Supp. 752 (D.N.J. 1981), and while Rose, supra, had not yet been decided, it is in accord with the direction of Rose that the exhaustion ...