Case Information

Gennero GALTIERI, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant. John MATERA, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.

Nos. 75-4169, 76-1006

United States Court of Appeals, Fifth Circuit

Oct. 23, 1978

Rehearing En Banc Denied Dec. 11, 1978

582 F.2d 348

tion for Appointment of Counsel is DENIED because briefing and argument on the appeal are unnecessary. See Lewis v. Bragan, 5 Cir. 1978, 576 F.2d 678. The appellant's new set of pleadings was, in effect, a second motion for relief under 28 U.S.C. § 2255. It raised a claim of mental incompetency at the time the guilty plea was entered, a new claim not presented in the original Section 2255 motion. This claim should be considered on the merits, and the case is remanded for an evidentiary hearing on that issue. Sanders v. United States, 1963, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148.

With respect to the claims for denial of assistance of counsel, failure to hold a sanity hearing, excessiveness of the sentence, and involuntariness of the guilty plea, the decision of the trial court is AFFIRMED.

The case is REMANDED for further proceedings consistent with this order.

AFFIRMED IN PART and REMANDED IN PART.

Robert L. Shevin, Atty. Gen., Linda Collins Hertz, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.

Milton E. Grusmark, Miami, Fla., for petitioners-appellees.

Before BROWN, Chief Judge, TUTTLE, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.*

James C. Hill, Circuit Judge, concurred specially and filed opinion.

Thornberry, Circuit Judge, dissented and filed opinion in which Godbold, Circuit Judge, joined.

Goldberg, Circuit Judge, dissented and filed opinion in which Tuttle, Circuit Judge, joined.

Roney, Circuit Judge, dissented and filed opinion in which Thornberry, Godbold and Lewis R. Morgan, Circuit Judges, joined.

TJOFLAT, Circuit Judge:

The exhaustion of state remedies is a doctrine, grounded on notions of comity, that requires a state prisoner to present his claim of constitutional error to the state court system prior to petitioning for federal habeas corpus relief. The rule in this circuit is that a federal district court generally must dismiss, without prejudice, a state prisoner's petition for a writ of habeas corpus that contains a mixture of exhausted and unexhausted claims. Strong policy considerations require us to adhere to our rule that petitioners present all their claims to the state court system before turning to the federal courts.

This case was taken en banc because it poses a question not clearly answered by our precedent: what is the proper course for this court when a district court declines to dismiss a mixed petition and reaches the merits of an exhausted claim, and we are asked to review the decision on the merits? In the case before us, the court below granted writs of habeas corpus to petitioners Galtieri and Matera on the strength of an exhausted claim, although their petitions also raised unexhausted claims. The policy considerations bearing on the desirability of a district court's dismissal of a mixed petition are outweighed at the appellate level by new policy considerations; therefore, we shall review the merits of the issue decided by the court below rather than vacate the grant of the writs and require dismissal for want of exhaustion.1

The writs were granted on the petitioners' claim that the state prosecutor withheld certain vital information from the defense in violation of the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We hold that the petitioners' exhausted claim does not assert an error of constitutional dimension under Brady and its progeny. The district court's judgment granting the writs is therefore reversed.

I

A. Exhaustion of State Remedies

In May, 1967, the petitioners, Gennero Galtieri and John Matera, were convicted of robbery by a Florida jury in a joint trial. Galtieri and Matera appealed their convictions and sentences through the Florida court system.2 After their direct appeals failed, the petitioners began unsuccessful collateral attacks on their judgments and sentences.3 Following their second journey through the state court system, Galtieri and Matera filed petitions for writs of habeas corpus in the federal district court. These petitions were dismissed for failure to exhaust state remedies.4 Petitions for writs of habeas corpus were then filed by Galtieri and Matera in the District Court of Appeal of Florida5 and in the Florida Supreme Court and were denied.6

Thereafter, the petitions under review here were filed in the court below. Despite the petitioners' three trips through the Florida state court system, the district court found that two of the four constitutional claims they raised had not been presented to the Florida courts.7

The district court held a consolidated evidentiary hearing on the petitions of Galtieri and Matera. At that hearing, evidence was heard on all the claims asserted by the petitioners. On September 16, 1975, the district judge entered an order finding no merit in one of the exhausted claims: that the failure of a Florida appellate court to rule on a specific point raised on appeal deprived the petitioners of their constitutional right of appeal.8 Record, vol. 1, at 91-92, No. 75-4169. As to the other exhausted claim, however, the district court concluded that the petitioners had proved their claim of a federal constitutional deprivation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Id.

B. The Brady Claim

Prior to their trial, the petitioners made a general request under Brady for any evidence favorable to the defense. The Brady claim treated by the court below involved the prosecutor's alleged withholding from defense counsel of grand jury testimony of a court witness. This witness, Bruce Braverman, had appeared before a New York grand jury on four occasions.9 On the first two occasions, Braverman invoked the fifth amendment. He testified, however, at his third and fourth appearances, and his testimonies are relevant to the petitioners' claims. In Braverman's third appearance, he apparently recounted nothing incriminatory to the petitioners. In his fourth appearance, however, Braverman testified that in March, 1966, he met with the petitioners in New York and that they mentioned their plans to travel to Florida for the purpose of making a "score." The Harbor Island Spa had been robbed on March 31, 1966.

Braverman was called at the petitioners' trial as a court witness. Record, transcript of state trial, vol. 3, at 763. His direct testimony, in response to questions posed by the court, was innocuous. During the state's cross-examination, Braverman was impeached with his fourth grand jury testimony. Id. at 790-849. The petitioners, who claimed they were unaware of the third grand jury testimony until Braverman took the stand, then made a specific request to the trial judge for the transcript of that testimony. Id. at 826-27. The judge ordered that the trial proceed without the transcript, with the proviso that the defense could inquire into the third grand jury testimony during its cross-examination. Id. at 836. As we point out in Part III infra, the substance of the third grand jury testimony was adopted by Braverman during the course of his cross-examination by the defense.

II

In order to explore the roles of the federal habeas courts in the treatment of "mixed" petitions, it is necessary both to define what exhausted and unexhausted claims are and to identify the conflicting policy considerations involved in the decision whether to dismiss a mixed petition. The federal writ of habeas corpus serves as a "swift and imperative remedy in all cases of illegal restraint or confinement." Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973) (quoting Secretary of State for Home Affairs v. O'Brien, [1923] A.C. 603, 609 (H.L.)). The exhaustion doctrine, however, has long operated to delay federal consideration of constitutional claims raised by state prisoners.10 This doctrine, which is codified at 28 U.S.C. § 2254(b), (c) (1970),11 requires that a state prisoner's claim first be presented to the state court system. For a claim to be exhausted, the state court system must have been apprised of the facts and the legal theory upon which the petitioner bases his assertion. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 402, 97 L.Ed. 469 (1953). The basic rationale for this requirement 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 . . . . Solution was found in the doctrine of comity between courts, 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, 419-420, 83 S.Ct. 822, 838-39, 9 L.Ed.2d 837 (1963) (quoting Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). A major concern is that, without the exhaustion doctrine, the state court system would be isolated from federal constitutional issues and would not have an impetus to develop and apply federal constitutional law. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976); Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094-95 (1970).

In some circumstances, however, it is proper for federal courts to treat claims technically unexhausted. As the Supreme Court stated in Fay v. Noia, "The rule of exhaustion 'is not one defining power but one which relates to the appropriate exercise of power.'" 83 S.Ct. at 839 (quoting Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 446, 83 L.Ed. 455 (1939)). The Supreme Court has "consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint." Id. 83 S.Ct. at 842. Because exhaustion is not considered to be a jurisdictional prerequisite, the federal courts have heard claims not previously considered by the state courts.

The exceptions to the exhaustion doctrine illustrate the tension between the swift vindication of the petitioner's constitutional rights and the comity principles undergirding the doctrine. Whether the reason for reaching an unexhausted claim is termed a satisfaction of or an exception to the doctrine, it is clear that the federal court must weigh the conflicting interests served by the federal writ of habeas corpus and by the exhaustion doctrine before addressing the merits of an unexhausted claim. Exceptions to the exhaustion doctrine have been developed judicially to cover situations where mechanical adherence would not further the goals of the exhaustion doctrine or would frustrate an overriding federal concern.

Two of the exceptions to the exhaustion doctrine are codified in section 2254(b). A person in state custody need not attempt to exhaust the state's remedies when "either there is an absence of available State corrective process"12 or there is "the existence of circumstances rendering such process ineffective to protect the rights of the prisoner."13

A petitioner may not be required to exhaust his claim if a change in the law occurs between the exhaustion of available state remedies and the filing of a petition for federal habeas corpus. If the change provides an effective state procedure, Texas v. Payton, 390 F.2d 261, 270 (5th Cir. 1968), or a fundamental variation in substantive federal law, the petitioner generally will be required to return to the state courts. If, however, the change is in the substantive state law on the federal issue, federal consideration of the petitioner's claim will generally not be delayed. Roberts v. La Vallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967). In the latter situation, the state courts already had the opportunity to consider the petitioner's claim, and the goals underpinning the exhaustion doctrine would not be furthered.

With the general background of the policies served by the writ of habeas corpus, the exhaustion doctrine, and the exceptions to the exhaustion doctrine in mind, we shall discuss the approach we think a federal court must adopt in considering a mixed petition. Because the policy considerations differ significantly at the trial and appellate stages of a federal habeas proceeding, we shall assess the respective functions of the district court and the court of appeals in considering a mixed petition.

A. The Federal District Court

The policy in this circuit is that a federal district court must dismiss without prejudice a "mixed" petition for a writ of habeas corpus filed by a state prisoner. West v. Louisiana, 478 F.2d 1026, 1034 (5th Cir. 1973), aff'd regarding exhaustion en banc, 510 F.2d 363 (5th Cir. 1975). A "mixed" petition is one that asserts both exhausted claims and unexhausted claims that do not fit an exception to the exhaustion doctrine; that is, some of the claims have not been presented to the state court system so that the custodial state has not yet had an opportunity to correct all of the alleged constitutional errors.

At the outset, we note that requiring exhaustion of all claims does not "bar the federal courthouse door" to any petitioner. But cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (both cases holding that some issues are not cognizable in federal habeas proceedings). Nor does our discussion today in any way abrogate or infringe upon the exceptions to the exhaustion doctrine that have been developed through the years. If the unexhausted claims in a mixed petition fit an exception to the exhaustion doctrine, it would be improper for the district court to dismiss the petition.

The language of the habeas corpus statute refers to the exhaustion of a "question" rather than of the "case."14 We do not consider this language to be a mandate to the federal courts to hear each "question" as it is exhausted; rather, we consider the statute to set forth the minimum limits of the exhaustion doctrine. The Supreme Court has not addressed this issue directly. In Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974), a petitioner sought to overturn a lower court's dismissal of his exhausted claim because it was joined with an unexhausted one. The Court expressly reserved this issue and decided the case on other grounds.15

Our policy is sound: federal district courts ought to dismiss mixed petitions so that petitioners will exhaust all their constitutional claims prior to federal court intervention. Considerations of comity, avoidance of piecemeal litigation, economy of judicial energy, and the fullest consideration of a petitioner's claims are best served if all of a petitioner's claims are presented to the state court system at one time. If he is not afforded relief, then he may petition the federal courts for a review of all his claims. The goal is to have a petitioner travel through each system only once, at most, in his quest for vindication of alleged constitutional errors. Our policy furthers this goal by creating an incentive for the petitioner to develop fully all his claims in the state court system. Because we have not always articulated the rationale underlying the policy for exhaustion of all claims, we take this opportunity to explicate our reasoning.16

As a starting point for our explication, we note the presence of a strong federal policy in the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.A. foll. § 2254 (1977), and section 2254, that favors both the exhaustion of all of a petitioner's claims prior to their presentment to a federal habeas court and the prompt resolution of those claims in one hearing.17

It is urged that we adopt the policy followed in other circuits of encouraging district courts, when presented with mixed petitions, to treat unrelated exhausted claims while dismissing the unexhausted ones. See note 16 supra. In balancing the relevant considerations, other circuits find that the immediate treatment of the exhausted claims outweighs all other concerns. In our opinion, this approach is unrealistic and ignores many strong federal policies. We think that our requirement of complete exhaustion is the better practice and is in line with explicit congressional pronouncements.

Rule 9(b) of the Rules Governing Section 2254 Cases was adopted by Congress "to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims and to file multiple petitions." Rules Governing Section 2254 Cases in the United States District Courts, Rule 9, 28 U.S.C.A. foll. § 2254 (1977), Advisory Committee Note at 1137. To deter a petitioner from presenting his claims in successive petitions and to encourage the disposition of all claims in one proceeding, rule 9(b) authorizes a district court to dismiss a "second or successive petition [if] the judge finds that failure of the petitioner to assert [new and different] grounds in a prior petition constituted an abuse of the writ."18

Rule 9(b) must be read in conjunction with rule 9(a), which provides as follows:

A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

This provision, embodying a laches concept, is designed to ensure the prompt presentation of claims.19

Thus, rule 9 forces a petitioner to assert his claims promptly and in one petition. To the extent that he withholds a claim, whether exhausted or not, from his habeas petition, he runs the risk of a rule 9(a) laches defense.20 If a petitioner does not assert an already exhausted claim in his first petition, he runs the additional risk of a rule 9(b) dismissal.

The obvious intent in the enactment of rule 9 is to bring all of a petitioner's claims to light the first time he petitions in a federal habeas court. This purpose must be considered in conjunction with the section 2254 provision that forbids federal court treatment of unexhausted claims. Consequently, one federal proceeding embracing all claims can be attained only by requiring a petitioner to submit all of his claims to the state courts before he seeks federal habeas corpus relief.

We think that our approach comports with the purposes of rule 9 and section 2254. Although there is an initial delay in the consideration of an exhausted claim when a federal court dismisses a mixed petition, we are nevertheless convinced that our approach eventually will result in the timely disposition of all claims in both the state and the federal courts. By dismissing mixed petitions, thus giving full effect to the objectives of rule 9, we enhance the potential for the prompt and efficient consideration of all of a petitioner's claims in state court and for an early end to his litigation. Since it is axiomatic that the prompt and efficient consideration of claims increases the chance for a just result, should it not be anticipated that a state court would grant relief on a meritorious claim seasonably presented and fully litigated? And should it not also be anticipated that a state prisoner might accept an adverse state court determination of his claim, if fairly tried? If neither of these results are attainable, then the reasons for the exhaustion doctrine are specious, congressional adherence to the exhaustion provisions of section 2254 and Supreme Court precedent notwithstanding. We are in accord with the expressions of Congress and the Supreme Court; the exhaustion doctrine is both workable in and valuable to our system of federalism.

We think our policy serves another salutary objective: it reduces the likelihood that an otherwise meritorious claim will be dismissed on grounds of delay. This is a desirable goal from a petitioner's standpoint, and, moreover, it serves the ends of justice.

A petitioner who, for tactical reasons, seeks habeas relief in this circuit in a piecemeal fashion and clutters up his federal habeas petition with unexhausted claims is deterred by our requirement that the mixed petition be dismissed. The only way a petitioner can carry out a strategy of piecemeal attacks on his conviction and also avoid the consequences of our policy is to withhold altogether the assertion of unexhausted claims in his federal petition. In doing so, he runs the risk of a rule 9(a) dismissal when, later, he initially asserts such claims in federal court. He runs this risk because he invites the state to contend that his failure to present the claims in his first petition, along with his exhausted claims, lulled the state into believing that the first petition constituted a full constitutional attack on his conviction. The prejudice to the state could take many forms, such as its inability to preserve the evidence necessary to refute the delayed claims. The presence of rule 9(a) makes it unlikely, we think, that a petitioner with unexhausted meritorious claims will forego the chance to preclude a possible laches defense; there is a great incentive for him to incorporate such claims into his petition.

In sum, the rule of this circuit encourages the presentation of exhausted claims in one petition as the norm. Where the petitioner is cognizant of the possible constitutional infirmities of his conviction, multiple petitions should not occur unless he is willing to run the risk of a laches dismissal under rule 9(a). There are, of course, situations in which successive petitions cannot be avoided. We are concerned here, however, with the petitioner who, prior to seeking federal relief, knows that he has several claims and not with the petitioner who, through a change in the law or other excusable circumstance, realizes after his first federal habeas petition that he has other possibly meritorious claims.

We are convinced that the alternative approach, followed in the majority of circuits, runs against the spirit of rule 9 and upsets the balance between the rule and section 2254, because it encourages, rather than discourages, piecemeal litigation. Under that approach, the petitioner, while pursuing his exhausted claims in federal court, may simultaneously litigate his remaining claims in state court and, if unsuccessful in that forum, return to the federal system. In our judgment, a policy that invites the prosecution of successive petitions, each asserting newly exhausted claims, impedes the orderly and complete consideration of the constitutional issues in state court and greatly diminishes the ability of the federal habeas court to dispose of a petitioner's claims in one proceeding. The federal district judge who dismisses only the unexhausted claims creates, in effect, two petitions for writs: one, containing the exhausted claims, that is ripe for immediate adjudication; the other, containing the unexhausted claims, that must await state court treatment. Unlike our rule, the rule of these circuits does not discourage the litigious prisoner; as long as he is able to evade the rule 9(a) laches defense by the state, he is free to prosecute multiple petitions. By filing a mixed petition, a state prisoner maneuvers himself into a position from which he can contend, in a subsequent habeas petition containing his formerly unexhausted claims, that the state, having had previous notice of the claims, cannot establish prejudicial delay. The rule of these circuits also frustrates the notion of expedition embodied in rule 9(a) by creating an atmosphere in which the norm is that some of a petitioner's claims are delayed federal court treatment; the exhausted claims go forward while the unexhausted ones are simultaneously litigated in state court.21

The filing of a mixed petition not only aids a petitioner in circumventing a future laches defense but also may serve his trial strategy as well. The mere inclusion of unexhausted claims, especially those appearing to be meritorious, might be calculated to influence the district court's resolution of the exhausted claims even though the unexhausted claims will ultimately be dismissed. The petitioner might even succeed in influencing the court by proffering evidence of apparent constitutional error in support of his unexhausted claims. This could well occur, despite the prohibition against hearing the merits of unexhausted claims, because it is sometimes difficult for a district judge to determine from the state court record alone whether all the claims have actually been exhausted, and thus should be entertained, or, if there are unexhausted claims, whether they are "related" to the exhausted ones, thus mandating that all claims be dismissed. If, under these circumstances, the petitioner succeeds in litigating to final judgment the merits of his exhausted claims, he has received whatever benefit might flow from the premature incorporation of "unrelated" unexhausted claims in his petition. And even where he suffers the dismissal of such claims, he has reserved the right to return to federal court another day, if need be, in his quest for release from custody.

As an example of what can transpire at the evidentiary hearing on the merits of an exhausted claim when matters germane to unexhausted claims are introduced, we note what took place in the court below. Although the district judge found that two of the claims of petitioners Galtieri and Matera were unexhausted, testimony was heard on all the claims, and during the course of the hearing new and unexhausted claims surfaced. The record of the hearing clearly shows that the district judge considered all the claims, even though his dispositive order granted relief only on a claim that was found to be exhausted.

If the court below had followed the rule of this circuit, any prejudicial influence that might have derived from the unexhausted claims would have been avoided. The district court would have dismissed the petitions for want of complete exhaustion. If the petitioners were to return to federal court after submitting their claims to the state system, all the evidence could properly be considered.

In addition to harmonizing rule 9 and section 2254, our approach furthers federal-state comity. Although comity in a narrow sense has been served by the prior state consideration of the exhausted claim, there are broader aspects to comity between concurrent court systems.

First, we observe that the state has an interest in the resolution of the entire case, as well as in each of the component constitutional assertions that the petitioner may bring to challenge his conviction. An important value in our jurisprudence is the finality of criminal trials, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 3050 n. 31, 49 L.Ed.2d 1067 (1976) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2064, 36 L.Ed.2d 854 (1973) (Powell, J., concurring)), and the concept of finality encompasses the resolution of the petitioner's entire case, not just the resolution of each claim. See Wheeler v. Beto, 407 F.2d 816, 817 (5th Cir. 1969). The Supreme Court has admonished the federal habeas courts not to "detract from the perception of the trial of a criminal case in state court as a decisive and portentous event." Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977). The piecemeal litigation of challenges to a conviction obviously disparages the state courts. Insofar as the state has an interest in the conviction, our requirement of exhaustion of all claims furthers federal-state comity considerations.22

Second, there is less disruption in the custodial status of the petitioner when he is required to be brought before a federal tribunal only once. Complete exhaustion lessens the possibility of intermittent interruption of a petitioner's prison sentence. In this case, the court below released Galtieri and Matera under the sponsorship of their attorneys. Record, No. 75-4169, vol. 1, at 84; Record, No. 76-1006, vol. 1, at 77. Since we are reversing the district court, they will be incarcerated again, although it is possible that they may ultimately be released on one or more of their as yet unexhausted claims. Clearly, the state's correctional system, especially its rehabilitation programs, suffers when this occurs.

Third, dismissing only the unexhausted claims could produce untoward effects if the petitioner prosecutes those claims in state court while pursuing the exhausted claims through the federal system. The possibility is not remote that the state and federal courts would grant inconsistent relief on the claims. Depending on the character of each of the claims involved, one system might grant the petitioner a new trial while he remains incarcerated; the other might fashion relief that results in his immediate release from custody. The specter of such incompatible dispositions clearly does not foster harmonious federal-state relations. If the state courts stay the prosecution of the unexhausted claims pending before them, awaiting the outcome of the federal litigation, the petitioner might be able to assert the "undue delay" exception to the exhaustion doctrine, and the state courts would be deprived altogether of considering his unexhausted claims.

Finally, each time the federal court interferes with the state's criminal justice system, it disrupts the state's orderly administration of its affairs. Our intent is to keep these intrusions to a minimum.

B. The Appellate Court

We must reevaluate the conflicting policy considerations to determine the proper course of action for this court when we are asked to review a district court's decision on the merits of an exhausted claim presented in a mixed petition. The panel of this court that originally heard this appeal refused to consider the merits and vacated the district court's grant of the writs on the procedural ground of lack of exhaustion. Galtieri v. Wainwright, 545 F.2d 942 (5th Cir. 1977). This was the logical disposition in light of this circuit's policy against the entertainment of mixed petitions.23

In theory, if a court of appeals steadfastly refuses to review the merits of exhausted claims in mixed petitions and remands to the district courts with instructions to dismiss such petitions for want of exhaustion of all claims, the district courts will be deterred from reaching the merits of mixed petitions. In our judgment, however, the practical effect of mechanical adherence to such a course by a reviewing court does not appreciably advance the objectives of the exhaustion doctrine. As we shall discuss, it brings further disruption to a state's system of criminal justice and to federal-state relations.

When the district court has granted the writ on an exhausted claim in a mixed petition and we decline to review the merits, vacate the issuance of the writ, and order the district court to dismiss the petition so that the state courts will have an opportunity to consider all of the constitutional attacks on the petitioner's conviction, federal-state court friction is inevitable. A refusal to review the merits places the state courts in the anomalous position of considering claims, brought by a prisoner in state custody, while knowing that a federal district court has already found constitutional error in the prisoner's conviction. It would be reasonable for a state judge hearing the unexhausted claims to expect that the conviction would ultimately be set aside regardless of the result he reached. This would be so even though the district court's earlier findings and conclusions justifying the grant of the writ, having been vacated on appeal without intimation as to their correctness, were a nullity and, moreover, may have been erroneous. Of course, if the state judge grants relief and sets the conviction aside, the frustration of the state system of criminal justice wrought by the earlier federal intrusion will be ameliorated since the state court will have joined in the determination that the conviction was unconstitutionally obtained. If, however, the state court finds no merit in the prisoner's claims, thus placing the two judicial systems in direct conflict, further friction would follow inexorably.

If the state court denies relief, the prisoner will promptly return to federal court to obtain the relief awarded him on his first trip to that forum. If the case is assigned to the district judge who issued the writ on the earlier occasion, the state may seek to disqualify him on the theory that it is unrealistic to expect the same district judge to reach a contrary result on a claim simply resubmitted. Transferring the case to another judge would not allay the dilemma. Even though the successor judge's ruling on the merits might in truth be unassailable, it might be perceived as less than impartial: was the writ granted in deference to the prior judge's ruling, or was it denied to foreclose the inference that the previous action was rubber-stamped? This potential for perceived injustice could be exacerbated if the state court, in upholding the prisoner's conviction following a hearing on the merits, made comprehensive findings of fact. Section 2254(d)24 creates a presumption that state court findings are correct. Upon the prisoner's return to federal district court, the court could well be faced with a state court judgment with findings and conclusions of law indicating that the state court either reconsidered the prisoner's previously exhausted claim (the one decided on the merits in the first federal habeas proceeding) or tried factual issues, in connection with the unexhausted claims, that went integrally to the merits of the exhausted claim.25 In such a situation, the district court might find itself bound by the state findings to reach a result antithetical to its prior determination.

The potential for federal-state conflict is substantial even when the district court does not grant the writ on the merits and the appellate court vacates the district court's judgment for want of exhaustion of all claims. Since the appellate disposition carries no implication as to the correctness of the district court's resolution of the merits, the prisoner is free, depending on the outcome of the state court consideration of his unexhausted claims, to relitigate in federal court the merits of his previously exhausted claim. There is nothing to preclude the state court, if it reconsiders that claim (together with the previously unexhausted claims), or the district court, in round two, from reaching a result on the exhausted claim that is at odds with the district court's initial disposition. Moreover, in the second presentation of the petition in district court, the problem regarding the judge's qualification to sit may arise.

The primary goal of the exhaustion doctrine is to prevent "unnecessary conflicts between courts equally bound to guard and protect rights secured by the Constitution."26 Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971) (quoting Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886)). As we have discussed, a refusal to reach the merits on appeal when the court below has reached them will not advance this goal; the conflict has already been created, and a declination on our part would merely aggravate the problem. In addition to the federal-state conflict, we have also demonstrated the potential for antithetical resolutions of the petitioner's case in the federal court system when it is required to consider the merits of a claim for a second time following intervening state proceedings. Such inconsistency in disposition, which in a given case may simply be the product of procedural nuances, is a consequence inexplicable in logic or reason to the public, if not to the legal profession.

To summarize our discussion today, we conclude that federal district courts in this circuit must dismiss state prisoners' mixed petitions. In the rare event, however, that a district court erroneously reaches the merits of an exhausted claim in a mixed petition and an appeal is taken from its dispositive order, we shall review the merits of the claim.

III

Turning to the claim on which the district court granted relief, we shall treat the claim as it did: as an unrelated, exhausted Brady claim of error in the withholding of Braverman's prior grand jury testimony. We note, however, that the record of the evidentiary hearing raises serious questions, which have not been presented to the state courts, that are intertwined with the narrow question reached by the district court.

In addressing the petitioners' Brady claim, we note at the outset that a defendant is not denied a fair trial in the context of Brady and the due process clause of the fourteenth amendment merely because he has not been given access to evidence that is arguably favorable. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976).27 Some degree of materiality of the nondisclosed evidence to the guilt-finding process must be demonstrated by the one seeking reversal.28 A lower materiality standard is imposed in cases involving specific rather than general Brady requests, so that the prosecutor is encouraged to seek a judicial determination regarding the discoverability of specifically requested matter. Id. 96 S.Ct. at 2399. To the extent that a specific request was made by the petitioners in this case, it was made before the trial judge, and he ordered that the trial proceed without the production of Braverman's third grand jury testimony. Under these circumstances, a fair trial is denied only "if the omitted evidence creates a reasonable doubt [as to the defendant's guilt] that did not otherwise exist." Id. 96 S.Ct. at 2402. With this standard in mind, we conclude that the record does not justify the granting of the writ by the court below.29

The trial transcript shows that Braverman was called as a court witness and was therefore cross-examined by both sides. Record, transcript of state trial, vol. 3, at 763-945. On questioning by the court, Braverman stated that on March 16, 1966, he conversed with the petitioners but that the Harbor Island Spa, the site of the robbery, was not mentioned. Id. at 771. Following this direct testimony, the state sought to impeach Braverman with the inconsistent testimony he had given at his fourth New York grand jury appearance. At that stage in the trial proceedings, defense counsel objected to the state's use of the fourth grand jury testimony, which was then made available to the defense. Id. at 773, 784-85. In response to the state's impeachment, Braverman himself disclosed that he had testified during his third grand jury appearance. He stated that his trial testimony was consistent with this prior grand jury testimony and that his fourth grand jury testimony was a fabrication. Id. at 791, 807, 826. The defense sought to obtain the third grand jury testimony from the state, but the state denied ever having access to that evidence.30 Id. at 826-27, 832, 840. The court ordered that the trial continue and permitted the state to use the incriminating fourth grand jury testimony for the limited purpose of impeaching Braverman's innocuous direct testimony. The court further ordered, however, that the defense could inquire into the substance of the third grand jury testimony during its cross-examination. Id. at 836.

In response to the state's questioning, Braverman stated that at the March meeting with the petitioners, Galtieri offered to lend him $1,000 after he made his "score" in Miami. Id. at 842-47. Braverman's testimony included nothing else of substance on the issue of the petitioners' guilt.

The defense followed with its cross-examination of Braverman, centering on his statements that no incriminating statements were made by the petitioners. Id. at 849-923. The trial transcript leaves no doubt that the defense extensively and effectively cross-examined Braverman with the apparent substance of his third grand jury testimony (as recounted by Braverman). After reviewing the trial transcript, we find ourselves in accord with the Florida Supreme Court's conclusion that Braverman had been so effectively impeached "that little, if anything, remained of his credibility." State v. Matera, 266 So.2d 661, 665 (Fla. 1972). See United States v. Washington, 550 F.2d 320, 330 (5th Cir. 1977), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977).

In summary, there are a number of distinctions between this case and the Brady line of cases. Here, the omitted evidence was "discovered" during, not after, the trial. The trial judge, not the prosecutor, made the decision that the trial should continue without the transcript. The relevant information contained in the omitted evidence was put before the jury. The testimony at the third grand jury proceedings, as recounted by Braverman, was not clearly exculpatory.31 Viewing the record as a whole, we cannot say that the actual possession by the defense of the transcript of the third grand jury proceedings for use in cross-examining Braverman could have created "a reasonable doubt that did not otherwise exist." Agurs, 96 S.Ct. at 2401-02. Moreover, since Braverman adopted at trial the complete essence of his testimony before that grand jury, for the defense to have introduced the transcript would have been a repetitious, cumulative, and, we think, clearly improper use of a prior consistent statement. Therefore, we hold that no constitutional error was committed.

IV

For the reasons stated above, we continue to adhere to our policy that federal district courts must dismiss mixed petitions. Through the efficient use of pretrial procedures, the district courts can ferret out and identify the nature of all of a petitioner's claims and determine which of them have not been exhausted. As for the unexhausted claims, the district court can ascertain, on the record, whether the petitioner knowingly and willingly chooses to abandon them, and, if he does, can proceed with the exhausted claims. If the petitioner does not abandon these claims, his petition must be dismissed.

In this case, we AFFIRM the district court's finding of no merit in petitioners' exhausted claim relating to the Florida intermediate appellate court's refusal expressly to consider an assignment of error, REVERSE the grant of the writ on the Brady claim, and REMAND for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSE IN PART, and REMANDED.

GERALD B. TJOFLAT

UNITED STATES CIRCUIT JUDGE

Footnotes

1 This was the disposition called for in the panel opinion. Galtieri v. Wainwright, 545 F.2d 942 (5th Cir. 1977).

2 The District Court of Appeal of Florida, Third District, affirmed both the convictions and Matera's sentence of life imprisonment, but it ordered Galtieri's case remanded for the entering of a proper judgment. Matera v. State, 218 So.2d 180 (Fla. Dist. Ct.App. 1969). The Florida Supreme Court denied the petition for certiorari. Matera v. State, 225 So.2d 529 (Fla. 1969). Certiorari was also denied by the United States Supreme Court. Galtieri v. Florida, 396 U.S. 955, 90 S.Ct. 424, 24 L.Ed.2d 420 (1971). After a proper judgment was entered in his case, Galtieri appealed through the state court system again. The district court of appeal quashed his appeal. Galtieri v. State, 234 So.2d 172 (Fla. Dist. Ct.App. 1970). Certiorari was denied by the Florida Supreme Court, Galtieri v. State, 239 So.2d 101 (Fla. 1970), and by the United States Supreme Court, Galtieri v. Florida, 401 U.S. 954, 91 S.Ct. 973, 28 L.Ed.2d 237 (1971).

3 Numerous motions to vacate judgment and sentence were filed by the petitioners pursuant to Fla.R.Crim.Pro. 3.850. At one point, the district court of appeal reversed the trial court's denial of the motions and remanded the cause for an evidentiary hearing. Matera v. State, 254 So.2d 843 (Fla. Dist. Ct.App. 1971). That opinion, however, was subsequently quashed by the Florida Supreme Court. State v. Matera, 266 So.2d 661 (Fla. 1972).

4 Matera v. Florida, Case No. 73-2-Civ-JE (S.D.Fla. March 8, 1973); Galtieri v. Florida, Case No. 73-3-Civ-CA (S.D.Fla. March 8, 1973).

5 State ex rel. Matera v. Wainwright, 277 So.2d 611 (Fla.Dist.Ct.App. 1973); State ex rel. Galtieri v. Wainwright, 277 So.2d 610 (Fla.Dist.Ct.App. 1973).

6 Galtieri v. Wainwright, No. 44,078 (Fla. Dec. 18, 1973); Matera v. Wainwright, No. 44,077 (Fla. Dec. 18, 1973).

7 The two unexhausted claims, that evidence obtained through illegal wiretaps was used and that the jury venire was improperly constituted, were treated by the district judge as "waived, for the purpose of the proceeding" in his order granting the writs on one of the exhausted claims. Record, vol. 1, at 91. No such "waiver" is reflected in the record, however. Cf. Beam v. Estelle, 558 F.2d 782, 783 n. 1 (5th Cir. 1977) (record showed close questioning of petitioner by district judge prior to court's acceptance of waiver). Because we reverse the district court's grant of the writs and remand the case, the district court is directed to dismiss the petitions without prejudice if they contain unexhausted claims.

8 The petitioners did not question the district court's decision on this claim in their brief to this court. We treat this claim, therefore, as abandoned by the petitioners. See Gardner v. Blackburn, 569 F.2d 856 (5th Cir. 1978); O'Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 1977); Henzel v. Florida, 475 F.2d 1271 (5th Cir. 1973).

9 Thereafter, a conspiracy indictment was issued in New York. The district court found that the indictment was returned for the "purpose of helping the Florida authorities. That indictment was later dismissed by the State of New York as the District Attorney's Office was convinced of Braverman's uselessness as a witness." Record, vol. 1, at 92, No. 75-4169 (Order of September 16, 1975).

10 The Supreme Court traced the history of the writ of habeas corpus and the development of the exhaustion doctrine in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 827-42, 9 L.Ed.2d 837 (1963).

11 Section 2254 provides, in part, as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall enter-tain an application for a writ of habeas cor-pus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b) 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 availa-ble in the courts of the State, or that there is either an absence of available State correc-tive process or the existence of circumstanc-es rendering such process ineffective to pro-tect the rights of the prisoner.

(c) 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 proce-dure, the question presented.

12 Even when the state does provide proce-dures for remedying constitutional errors, ex-haustion has not been required when the state procedures do not afford swift vindication. Ex-haustion ought not be required when the "state procedural snarls or obstacles preclude an ef-fective state remedy." Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963); Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 243, 92 L.Ed. 170 (1947) (per curiam) (Rutledge, Douglas, Murphy, JJ., con-curring). An "undue delay" by the state in treating a prisoner's petition will obviate the need for exhaustion. As we have stated, "Comity does not require that the federal courts decline to exercise jurisdiction in the face of allegations that the state courts have been presented with the merits of a claim for habeas corpus relief and have, for one reason or another, refused or been unable to act upon the claim." Martin v. Estelle, 546 F.2d 177, 178 (5th Cir. 1977) (quoting St. Jules v. Beto, 462 F.2d 1365, 1366 (5th Cir. 1972)), cert. denied, 431 U.S. 971, 97 S.Ct. 2935, 53 L.Ed.2d 1069 (1977); Smith v. Estelle, 562 F.2d 1006 (5th Cir. 1977); West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), aff'd regarding exhaustion en banc, 510 F.2d 363 (5th Cir. 1975).

The Supreme Court has held that the doc-trine does not require state prisoners to file repetitious applications in the state courts. Therefore, if a prisoner has fairly raised the issue on direct appeal, he is not also required to attempt a collateral attack in state postconvic-tion proceedings. The mere possibility of suc-cess in additional state proceedings does not bar federal consideration of the claim. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971); Cronnon v. Alabama, 557 F.2d 472, 473 (5th Cir. 1977); Bishop v. Wainwright, 511 F.2d 664 (5th Cir. 1975), cert. denied, 425 U.S. 980, 96 S.Ct. 2186, 48 L.Ed.2d 806 (1976).

13 Since the inception of the exhaustion doc-trine, federal courts have recognized that "spe-cial" or "exceptional" circumstances may war-rant federal consideration of claims without prior resort to the state court system. In some cases, the federal interest is paramount, so that comity considerations are overridden. Thus, in 1886, the Supreme Court stated, "[I]n cases of urgency, involving the authority and operations of the general government, . . . the courts of the United States have frequently interposed by writs of habeas corpus, and dis-charged prisoners who were held in custody under state authority." Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 740, 26 L.Ed. 868 (1886) (emphasis in original); see e. g., Cunningham v. Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890) (United States deputy marshal, held on charge of homicide committed in the perform-ance of his duty to protect Justice Field, dis-charged on habeas corpus from state custody).

14 28 U.S.C. § 2254(c) (1970), quoted in note 11 supra.

15 The Supreme Court has reviewed a case on the merits of an exhausted claim while noting the presence of unexhausted claims. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 1104, 31 L.Ed.2d 408 (1972). This does not militate against our rule that district courts ought to dismiss mixed petitions without prejudice. As will be discussed infra, a reviewing court is in a position different from that of a district court. Once a federal habeas court has reached the merits of a claim and the case is presented for appellate review, the policy considerations that dictate dismissal for want of exhaustion are no longer controlling, and the reviewing court must entertain the case on its merits.

16 We are aware that all but one of our sister circuits allow (and some require) district courts to consider the exhausted claims in a mixed petition, at least if the exhausted claims are "unrelated" to the unexhausted ones. E. g., Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Cameron v. Fastoff, 543 F.2d 971 (2d Cir. 1976); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976) (en banc); Hewett v. North Carolina, 415 F.2d 1316 (4th Cir. 1969); Meeks v. Jago, 548 F.2d 134 (6th Cir. 1976) cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977); Brown v. Wisconsin State Dep't of Public Welfare, 457 F.2d 257 (7th Cir. 1972); Tyler v. Swenson, 483 F.2d 611, 614-15 (8th Cir. 1973); Smith v. Gaffney, 462 F.2d 663 (10th Cir. 1972). The Ninth Circuit has adopted our approach. Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976). Prisoners in the District of Columbia petition under 28 U.S.C. § 2255 (1970); therefore, the District of Columbia Circuit has not addressed this question.

17 Although the Rules Governing Section 2254 Cases were not in effect at the time Galtieri and Matera filed their petitions, the policies implemented by the rules are derived from prior Supreme Court precedent, see e. g., Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10. L.Ed.2d 148 (1963), and are clearly relevant to our discussion.

18 This provision adopts the Supreme Court's rationale in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). H.R. Rep.No.94-1471, 94th Cong., 2d Sess. 5-6, reprinted in [1976] U.S.Code Cong. & Admin. News 2478, 2482; Advisory Committee Note at 1138-39.

In Sanders, the Court stated as follows: [I]f a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. . . . Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay.

83 S.Ct. at 1078. The initial burden is on the government to plead an abuse of the writ. Id., 83 S.Ct. at 1074-75, 1075, 1078. The burden then shifts to the petitioner to prove that he has not abused it. Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948).

19 Rule 9(a) "should have a positive effect in encouraging petitioners . . . to assert all their claims as soon after conviction as possible." Advisory Committee Note at 1138. "The interest of both the petitioner and the government can best be served if claims are raised while the evidence is still fresh." Id. at 1137.

Congress also provided for a form petition, which "encourages the petitioner to raise all of his available grounds in one petition. It sets out the most common grounds asserted so that these may be brought to his attention." Id. at 1139.

20 At first blush, it would seem that laches could not be raised as a defense to the delayed presentation of an exhausted claim, e. g., where the petitioner divides his exhausted claims, asserting one in the first petition and one in the second, because the state has been given notice of the claim. By definition, an exhausted claim has been presented to the state courts. It is possible, however, that laches could still be raised in a case where the state would be materially prejudiced by the late presentation of the exhausted claim. Events could occur between the state exhaustion and the later presentation of the claim in federal court, such as the disappearance of a critical witness whose testimony had not been preserved, that would prejudice the state's case.

21 Once the unexhausted claim is dismissed, the potential for subsequent dismissal by the federal district court for laches on resubmission of the claim after exhaustion forces the petitioner to seek state relief immediately.

22 Moreover, piecemeal litigation of numerous claims delays the finality of the petitioner's conviction, a result we consider to be detrimental to both the petitioner and society.

23 A survey of the case law in this circuit reveals that our treatment of mixed petitions, in the implementation of this policy at the appellate level, has been less than consistent. In Harris v. Estelle, 487 F.2d 1293, 1297 (5th Cir. 1974), Judge Clark, writing for the panel, noted, "The cases in this circuit are conflicting in result and none reason the basis for their differing dispositions." There are three situations in which an appeal to this court may be taken from a judgment on a mixed petition.

In the first situation, where the district court has declined to reach the merits and has dismissed the entire petition without prejudice, we have affirmed its decision. E. g., Parson v. Beto, 463 F.2d 249 (5th Cir. 1972); Burroughs v. Wainwright, 454 F.2d 1165 (5th Cir. 1972); Wheeler v. Beto, 407 F.2d 816 (5th Cir. 1969). We have found no case in which this court has reversed a district court's dismissal for want of complete exhaustion and remanded for a hearing on the merits.

In the second situation, where the district court has denied relief on the merits of the exhausted claims and has dismissed the unexhausted ones, we have sometimes vacated the district court's judgment and required dismissal of the petition to ensure that the premature claims would receive prior state court treatment. E. g., Hargrett v. Wainwright, 474 F.2d 987 (5th Cir. 1973). In other cases, however, this circuit has reached the merits of the exhausted claims and affirmed the denial of the writ. E. g., Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978); Singleton v. Estelle, 492 F.2d 671 (5th Cir. 1974); Harris v. Estelle, 487 F.2d 1293 (5th Cir. 1974); Hill v. Dutton, 440 F.2d 34 (5th Cir. 1971). We have also reversed the district court's denial on the merits and remanded the case for further proceedings. Allen v. Henderson, 434 F.2d 26 (5th Cir. 1970).

In the third situation, where the district court grants relief on the exhausted claim in a mixed petition, this court has both affirmed the grant, Moye v. Highsmith, 460 F.2d 1388 (5th Cir. 1972), aff'g Moye v. Georgia, 330 F.Supp. 290 (D.Ga. 1971), and reversed the grant, Shuler v. Wainwright, 491 F.2d 1213 (5th Cir. 1974), after reviewing the issue on the merits.

24 Section 2254(d) provides in part as follows:

(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determina-tion after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the ap-plicant for the writ and the State or an offi-cer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct . . . .

Subsection (d) goes on to place the burden on the petitioner "to establish by convincing evi-dence that the factual determination by the State court was erroneous" unless one of the exceptions to the presumption of correctness, which are enumerated in the statute, is estab-lished or is admitted by the state. 28 U.S.C. § 2254(d)(1)-(8) (1970).

25 A previously exhausted claim might be re-considered, for example, under a state rule per-mitting the rehearing of a case on grounds of newly discovered evidence. Even if it were inappropriate under state law for the court to reconsider an exhausted claim, findings of fact supporting a court's prior denial of such a claim might nevertheless be made as an inte-gral part of the court's findings on the unex-hausted claims, especially where those claims, though facially "unrelated" to the exhausted claim, are founded on common facts.

26 We note that vacating a district court's judgment, whether it grants or denies the writ, without reaching the merits of an exhausted claim does not aid the state court's develop-ment and application of federal constitutional law. See text accompanying note 11 supra. An authoritative pronouncement on the cor-rectness of the state's decision on the constitu-tional issue is delayed, if it is made at all.

27 In Agurs, the Supreme Court discussed three situations in which Brady violations may occur in a given case. In the first, the prosecu-tion knows or should know that the undis-closed information indicates that the prosecu-tion's case will include perjured testimony. In the second, the defense specifically requests the disclosure of evidence that was withheld. In the third, no request or only a general re-quest for all exculpatory material is made, and certain exculpatory material is not tendered. 96 S.Ct. at 2397-99. In Garrison v. Maggio, 540 F.2d 1271 (5th Cir. 1976), cert. denied, 431 U.S. 940, 97 S.Ct. 2655, 53 L.Ed.2d 258 (1977), as we recently stated in United States v. Anderson, 574 F.2d 1347, 1353 (5th Cir. 1978), this circuit "defined a fourth type of situation in which the Brady doctrine applies: the prosecu-tor fails to disclose purely impeaching evidence not concerning a substantive issue, in the ab-sence of a specific defense request."

28 Varying degrees of materiality are assigned depending upon the context of the alleged vio-lation. See note 27 supra. Where allegedly perjured testimony is used to obtain the convic-tion, the lowest standard of materiality is ex-acted. This is so because a conviction based on perjured testimony is most offensive to our concept of justice and the right to a fair trial. This circuit sets the highest standard of materi-ality when the prosecutor withholds purely impeaching material. United States v. Anderson, 574 F.2d 1347, 1354 (5th Cir. 1978).

29 The district court's evidentiary hearing brought to light other evidence allegedly im-properly withheld from the defense. These claims have not been presented to the state courts and therefore will not be treated here. We note, however, that the "constitutional obli-gation is [not] measured by the moral culpabili-ty, or the willfulness, of the prosecutor." Agurs, 96 S.Ct. at 2400 (footnote omitted).

30 The testimony at the evidentiary hearing be-low corroborated the Florida prosecutor's statement that the state did not have a tran-script of Braverman's prior testimony for use at the trial. Record, vol. 2, at 109-10, No. 75-4169. Our decision today pretermits the issue whether the state had an obligation to secure the transcript once its contents were apparent. Cf. United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1498, 47 L.Ed.2d 756 (1976); United States v. Gonzales, 466 F.2d 1286 (5th Cir. 1972) (both cases holding that Brady does not impose on the prosecutor a general duty to help the defense find evidence favorable to the accused).

31 Braverman did not state that the petitioners had not committed the robbery; at best, his testimony was that they had not told him that they intended to commit it. See United States v. Bensabat, 568 F.2d 1226, 1228-29 (5th Cir. 1978), cert. denied, ___ U.S. ___, 98 S.Ct. 2822, 56 L.Ed.2d 770 (1978). Such testimony would be of value only to impeach his fourth grand jury testimony, which the defense effec-tively did.