MacIo Ennis v. E. Lefevre, Superintendent, Clinton Correctional Facility, Respondent , 560 F.2d 1072 ( 1977 )

NEWMAN, District Judge

(concurring):

I agree that the absence of a transcript of the Wade hearing on appeal did not deny petitioner any federally protected right. But in the circumstances of this case, I would not remit petitioner to another round of state and federal court proceedings in order to litigate his further claim that the failure of his appellate counsel to challenge the identification testimony and obtain the Wade transcript for this challenge denied him effective assistance of counsel.

Exhaustion of state judicial remedies is a requirement grounded in considerations of comity, not an absolute jurisdictional barrier. Fay v. Noia, 372 U.S. 391, 415-420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1962); United States ex rel. Johnson v. Vincent, 507 F.2d 1309, 1312 (2d Cir. 1974), cert. denied, 420 U.S. 994, 95 S.Ct. 1435, 43 L.Ed.2d 678 (1975).¹ In the state courts petitioner’s attack on counsel’s effectiveness was clear, even if not worded in Sixth Amendment terms. He surely brought to the attention of the state courts his dissatisfaction with his appellate counsel, and his preference to have him replaced, in part for not raising the Wade issue. I think the interests of New York will be better respected if this Court views petitioner’s challenge as sufficient to warrant federal court consideration now, rather than precipitating a new round of collateral proceedings that will furnish business for three layers of the state court system before an inevitable return to the federal courts.

By no stretch of the imagination was petitioner’s appellate counsel ineffective in the Sixth Amendment sense. On the contrary, he was most effective. From the possible issues to be raised on appeal, he focused on an important one with likelihood of success and did not risk obscuring its worth in a welter of trivia. His good sense resulted in a victory on appeal which shortened petitioner’s sentence by eleven years. Having reviewed the transcript of the Wade hearing, I am entirely satisfied that while a non-frivolous challenge could have been made, petitioner’s appellate counsel cannot be faulted for considering the probability of success too slight to merit inclusion in the initial appeal. And there is no reason to assume that review of the Wade hearing transcript was the only way for him to assess the worth of the identification issue. He could have learned the substance of the identification procedures from trial counsel, from the petitioner, or from his own review of the trial transcript, which included references to both the display of photographs and the pre-trial courtroom identification. In any event his conclusion affords no basis for complaint.

I would affirm the judgment, rejecting on the merits both of petitioner’s claims.

1 . A federal court need not decline to exercise jurisdiction, even when a petitioner has not precisely met the exhaustion requirement, where a decision on the merits by the federal court does no offense to comity, or where the need for a prompt adjudication of the federal claim clearly outweighs the comity considerations. See, e. g., United States ex rel. Wolfers-dorf v. Johnston, 317 F.Supp. 66 (S.D.N.Y. 1970); United States ex rel. Barber v. Hendrick, 315 F.Supp. 798 (E.D.Pa.1970).