Gibbons and Sloviter, Circuit Judges, and Caldwell, District Judge.*fn*
James Gregory Jones appeals from an order denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254(b) (1976). Jones v. Superintendent, 576 F. Supp. 4 (D.N.J.1982). Jones is incarcerated by the State of New Jersey under a life sentence imposed following his conviction of murder in connection with a bank robbery. The district judge, relying on his own opinion in United States ex rel. Herring v. Fenton, 531 F. Supp. 937 (D.N.J.1981) dismissed the petition for failure to exhaust available state remedies. We expressly disapprove of that ground of decision, and of the holding in United States ex rel. Herring v. Fenton. Nevertheless, we affirm the denial of habeas corpus relief because the petition does not state a claim for which habeas corpus relief is available.
Jones' habeas corpus petitions assert two grounds for habeas corpus relief. The first ground is that his confession, and all other evidence used at his trial, should have been excluded as the fruits of an unlawful arrest made without probable cause. The second is that the failure to resentence him, in light of the disparity of sentence between him and a co-defendant, violated due process and equal protection.
The trial court did not consider the merits of either contention. The court noted that both had been presented to the Supreme Court of New Jersey, following the affirmance of Jones' conviction by the Appellate Division of the Superior Court, in a petition for certification filed pursuant to N.J.Ct.R. 2:12-3. Under that Rule the State Supreme Court has unlimited discretion to entertain certified appeals. N.J.Ct.R. 2:12-4. The trial court pointed, however, to N.J.Ct.R. 2:2-1, which provides for an appeal of right to the Supreme Court "in cases determined by the Appellate Division involving a substantial question arising under the Constitution of the United States . . . ." Relying on his opinion in United States ex rel. Herring v. Fenton, supra, the trial judge concluded that Jones' failure to file an appeal pursuant to N.J.Ct.R. 2:2-1 was a failure to exhaust available state remedies within the meaning of 28 U.S.C. § 2254(b).
The designation of the application to the Supreme Court of New Jersey as an appeal does not, however, require that court to engage in a more comprehensive review than is afforded to petitions for certification. That court's practice, like that of the Supreme Court of the United States, is to dismiss insubstantial appeals summarily. Compare, e.g., Zucht v. King, 260 U.S. 174, 176, 43 S. Ct. 24, 25, 67 L. Ed. 194 (1922), with Piscataway Assoc., Inc. v. Township of Piscataway, 73 N.J. 546, 549, 376 A.2d 527 (1977). Indeed, the New Jersey rule governing dispositions of simultaneous petitions for certification and appeal provides that a denial of certification shall be deemed a summary dismissal of the appeal. N.J.Ct.R. 2:12-9. That rule is similar to 28 U.S.C. § 2103 (1976). Thus the petition for certification tendered Jones' federal claims to the New Jersey Supreme Court in a manner which in no way inhibited that Court's consideration of them.
The exhaustion requirement in 28 U.S.C. § 2254(b) is a twentieth century codification of a post-reconstruction doctrine. See Ex Parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868 (1886). Its justification is the comity said to be due from federal to state courts with respect to the initial consideration of federal constitutional claims. See Wilwording v. Swenson, 404 U.S. 249, 250, 92 S. Ct. 407, 408, 30 L. Ed. 2d 418 (1971); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971); United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 95 (3d Cir.), cert. denied, 435 U.S. 928, 98 S. Ct. 1499, 55 L. Ed. 2d 524 (1977). The purpose of the codified rule is fully accomplished when the state courts have had an "opportunity to pass upon and correct" alleged violations of prisoners' federal constitutional rights. Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 848, 9 L. Ed. 2d 837 (1963). See, e.g., Anderson v. Harless, 459 U.S. 4, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1983) (per curiam); Rachel v. Bordenkircher, 590 F.2d 200, 203 (6th Cir.1978) (no more required for exhaustion than that state court have a fair opportunity to consider constitutional claim). One such opportunity is sufficient. E.g., United States ex rel. Mancini v. Rundle, 337 F.2d 268, 272 (3d Cir.1964); In re Thompson's Petition, 301 F.2d 659, 660 (3d Cir.1962). Moreover, the highest state court's failure, having been afforded such opportunity, to make an explicit ruling on the federal constitutional issue is no bar to habeas corpus relief. See, e.g., Smith v. Digmon, 434 U.S. 332, 333-34, 98 S. Ct. 597, 598-99, 54 L. Ed. 2d 582 (1978) (per curiam); United States ex rel. Turner v. Rundle, 438 F.2d 839, 845 (3d Cir.1971); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 556 (3d Cir.), cert. denied, 399 U.S. 912, 90 S. Ct. 2206, 26 L. Ed. 2d 566 (1969).
Thus the court's holding in United States ex rel. Herring v. Fenton, 531 F. Supp. 937, 946 (D.N.J.1981) is unsupportable, and the court's reliance on that case as precedent here was error.
Since the ground on which the trial court relied in dismissing the petition for habeas corpus cannot support that dismissal we would ordinarily remand for further proceedings. There is, however, a systemic interest in the prompt and final disposition of the merits of claims for relief in habeas corpus petitions.*fn1 Both of Jones' claims have been presented to the highest court of New Jersey, and should, if possible be disposed of on the merits without further delay. We conclude that they may be.
A. The suppression of evidence claim
Jones' first contention is that his confession, and all other evidence admitted at his trial, should have been suppressed as the fruit of his illegal arrest. He makes no contention that the confession was involuntary, or was obtained in the absence of Miranda warnings. Thus no fifth amendment issue was presented. The claim rests entirely upon the fourth amendment, as interpreted in Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1975); Wong Sun v. United States, 371 U.S. ...