c30:No. 75-1173

VAN DUSEN, Circuit Judge
(dissenting and concurring in part):
I respectfully dissent from the majority’s holding that there has been no exhaustion of state remedies, with respect to appellant’s claim that “the procedures employed by the state in assembling the jury violated the cross-section [requirement] of the sixth amendment” (page 469 of majority opinion). I believe this claim was adequately presented to the state courts and hence that there has been exhaustion of state remedies as required by 28 U.S.C. § 2254(b).
The majority opinion concedes that Zicarelli’s petition for a writ of habeas corpus alleged “that he was denied the right to trial by a jury comprising a representative cross-section of the locale where the crimes took place” (page 470).
Counsel for the State of New Jersey stated at the oral argument before the en banc court:
“As the court knows, we originally raised the issue of the exhaustion before the district court. The court held that our position was without merit. When the time came to apply to this court, we considered all the facts, the facts that in fact there had been a letter citing to People v. Jones which had been submitted to the State Supreme Court and at oral argument a reference had been made to that particular case. And we felt that in all fairness, it had been, as the courts require, fairly presented to the highest state court.”
In State v. Jones, 9 Cal.3d 546, 108 Cal. Rptr. 345, 352, 510 P.2d 705, 712 (1973), the “In Bank” court stated:
“To recapitulate, we hold that the Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Williams and Peters, guarantee a criminal defendant in a state trial the right to be tried by an impartial jury comprising a representative cross-section of, and selected from the residents of, the judicial district where the crime was committed.” (Emphasis supplied.)
As conceded by the State, its Supreme Court had been furnished in writing with relator’s reliance on Jones, supra, and that opinion had been referred to during the oral argument before that court. As I read Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), relied on by the majority opinion, the holding of that case is clearly inapplicable to this record, where the state courts were furnished the very holding on which relator relies in his federal court petition and, further, the State Attorney General conceded before this court that the cross-section issue “had been, as the courts require, fairly presented to the highest State court.’’
This record demonstrates that the state courts “had a fair opportunity to consider the [cross-section] claim and to correct that asserted constitutional defect in respondent’s conviction.” In Picard, supra at 277-78, 92 S.Ct. at 513, the Court stated:
“Obviously there are instances in which ‘the ultimate question for disposition,’ . will be the same despite variations in the legal theory or factual allegations urged in its support. . . .We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts.”
In my view, the procedure of excluding from the jury pool all residents of northeastern New Jersey may have “systematically excluded from the jury distinctive groups in the community” where the crime was committed and thereby violated the Sixth and Fourteenth Amendments’ fair cross-section requirement by causing the jury venire “to fail to be reasonably representative” of the community. The State does not deny that there are very often substantial differences between residents of different geographical areas. Although cases may arise where the prosecutor might demonstrate that there are no significant differences between the geographical groups from which the venire is drawn and the excluded group, facts subject to judicial notice suggest that significant differences exist here. As the panel noted in its November 18, 1975, opinion (page 11 at note 24):
“In this case, the crimes were alleged to have occurred in Hudson County, which has a population density of almost 13,000 people per square mile, and the jurors were selected from Burlington County, which has a density of only 395 people per square mile. U. S. Bureau of the Census, Department of Commerce, County and City Data Book 1972. There are many other differences as well, including: (1) the farm and rural nonfarm population of Burlington County is 63,000; that of Hudson County is 0; (2) 17.4% of Burlington County’s residents are of foreign stock, compared to 42.1% of Hudson County’s residents; and (3) the median number of school years completed by the residents of Burlington County is 12.3, while the median number of years completed by residents of Hudson County is 10.2. Id.”
On the basis of these facts, Hudson County residents appear to be a “distinctive group” when compared with the residents of Burlington County. Also, the complaint of petitioner-appellant against his trial in rural, southern New Jersey, as opposed to the community in urban, northeastern New Jersey where the crime was committed, would appear to be a claim of unconstitutional discrimination in jury selection which finds support in the above-quoted data. The unequal treatment of normally drawing petit juries from the county where the crime is committed but excluding from such jury of this defendant many persons of the predominant types in that county, having, for example, over 42% of its population of foreign stock, for a criminal trial in an area where only 17% of the residents are of foreign stock, is contrary to decisions such as Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 98 L.Ed. 866 (1954).
I believe that the cross-section requirement of the Sixth Amendment mandates vacating the judgment of the district court and the remand of this case to that court for a hearing and findings on the factual basis for the cross-section claim, or, in its discretion, for a stay of proceedings pending application of relator for post-conviction relief in the state courts on this cross-section claim so that an adequate record for determination of such claim may be made in the state courts.
In all other respects, I concur in the majority opinion.
I concur in the separate opinion of Judge Hunter.
. This requirement has recently been described by the Supreme Court as follows in Taylor v. Louisiana, 419 U.S. 522, 530, 538, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975):
“We accept the fair cross section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment . . . . Defendants are not entitled to a jury of any particular composition . . but the jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.”
. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), where the Court said at 100, 90 S.Ct. at 1906:
“[TJhe essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. . . . ”
. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), where the Court held that an aspect of the constitutional right to a trial by jury is the “fair possibility for obtaining a representative cross-section of the community.”
. In Picard, supra at 275, 92 S.Ct. at 512, the Court emphasized that “the exhaustion-of-state-remedies doctrine . . . reflects a policy of federal-state comity.” In this case, the State Attorney General has conceded that exhaustion has taken place as noted above.
The panel opinion of November 18, 1975, contained, inter alia, this wording at pages 5-6:
“At oral argument before this court . appellant’s attorney stated that this theory was presented to the New Jersey Supreme Court at oral argument in State v. Louf, 64 N.J. 172, 313 A.2d 793 (1973). The New Jersey Deputy Attorney General, who argued this case before both us and the State Supreme Court, did not dispute this claim at oral argument. Moreover, the State’s brief did not raise any claim of lack of exhaustion . . . . In light of these circumstances, we conclude that the exhaustion requirement has been satisfied as to the second (Louf) conviction. Further, we understand the State’s failure to raise the exhaustion issue as to the first conviction to be a tacit acceptance of the rationale of Rowe v. Peyton, 383 F.2d 709, 711-12 (4th Cir. 1967). In that case, it was held that where a petitioner presents an issue identical to one recently decided by the State’s highest court in another case, the requirements of 28 U.S.C. § 2254(b) were met, even though petitioner did not himself present the issue to the State. In the instant case, not only is the issue identical but also the parties are identical.”
. In Taylor v. Louisiana, supra, the Court used this language, as well as the wording quoted above from that opinion:
“The unmistakable import of this Court’s opinions, at least since 1941, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial. [528]
“The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S. [145], at 155-156, 88 S.Ct. [1444] at 1450-1451 [20 L.Ed.2d 491], This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” [419 U.S. at 530, 95 S.Ct. at 697]
. It will be necessary to determine whether the pools of names from which these juries were drawn systematically excluded distinctive groups in the Hudson County or northeastern New Jersey community, where the crimes were allegedly committed.
. Since the State of New Jersey and the United States Judicial District of New Jersey include the same area, this appeal raises no problem with “the State and district” requirement of the Sixth Amendment. Also, no contention was made before the state courts or the United States District Court based on “the previously ascertained by law” requirement.

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