c30:No. 19299

KALODNER, Circuit Judge
(dissenting in part).
I disagree with the majority’s disposition in the respect that it remands the cause to the District Court with directions to “retain jurisdiction” pending exhaustion of the appellant’s available state remedy.
I am of the opinion that we should do no more than vacate the Order of the District Court denying the appellant’s habeas corpus petition, with directions to dismiss the petition for failure to exhaust an undisputed available state remedy. As Judge Adams has pointed out, it was recently squarely held in Slayton v. Smith, 404 U.S. 53, 54, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971), that “absent special circumstances” a federal court should not “retain jurisdiction” where a petition for habeas corpus relief must be dismissed for failure to exhaust an available state remedy.- Here, there are no “special circumstances” requiring retention of jurisdiction. If the appellant is unsuccessful in the exhaustion of his available state remedy he may readily apply for federal habeas corpus relief. The appellant’s expertise on the score of habeas corpus relief is amply demonstrated by the fact that he has, during his incarceration, filed ten habeas corpus petitions — nine in the Pennsylvania courts and one in the federal court. I am in full accord with Judge Adams’ view that the federal-state comity doctrine is ill-served by the majority’s direction to the District Court to retain jurisdiction pending the appellant’s exhaustion of his available state remedy. Federal courts should abstain, under the comity doctrine, from wielding a policeman’s nightstick with respect to a state court’s administration of justice.
This, too, must be said:
In justifying its direction to the District Court to retain jurisdiction pending outcome of the appellant’s exhaustion of his available state remedy, the majority says on the last page of its opinion:
“Deference to an available state court remedy does not imply powerlessness to afford the petitioner a prompt hearing when by reason of delay the state process may prove to be ineffective to protect the rights of the prisoner. 28 U.S.C. § 2254(b); Commonwealth ex rel. Craig v. Maroney, 348 F.2d 22, 33 (3d Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966); In re Ernst, 294 F.2d 556, 561 (3d Cir.), cert. denied, 368 U.S. 917, 82 S.Ct. 198, 7 L.Ed.2d 132 (1961).”
The Achilles heel of the quoted statement is that here the majority has not found that “by reason of delay the state process may prove to be ineffective to protect the rights of the prisoner.”
Section 2254(b) permits granting of the habeas corpus writ where (1) available state remedies have been exhausted; or, (2) there is an “absence” of an available state remedy; or, (3) an available state remedy, under existing circumstances, is, or would be, “ineffective to protect the rights of the prisoner.” Here the majority has found that a state remedy is available and that the appellant has failed to exhaust it, and critically, it has not found that the available remedy, under existing circumstances, is, or would be, “ineffective to protect the rights” of the appellant. That being so, the habeas relief sought is unavailable to the appellant. There is nothing said in § 2254(b) which even remotely suggests that where a federal court is required to dismiss a habeas corpus petition because of failure to exhaust an available state remedy, that it may retain jurisdiction of the dismissed petition pending outcome of future exercise of the available remedy.
The Craig and Ernst decisions, cited by the majority, do no more than hold that a federal court may deny a habeas corpus petition, on its merits, even though there has been no exhaustion of an available state remedy.

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