The petitioner seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254 to invalidate his Florida direct criminal contempt conviction. The writ was granted by the federal district court on the grounds that petitioner's state court contempt conviction was obtained in violation of due process of law and that the Florida state court had no jurisdiction to try and sentence a federal prisoner for criminal contempt under a writ of habeas corpus ad testificandum. The respondent state officials appeal.

We shall not review the merits of the issues decided by the court below.1 Rather, we reverse and remand with directions to dismiss the petition, which contains only unexhausted claims, without prejudice to petitioner's reapplication, if necessary, following exhaustion of his state court remedies in respect of his claims. See, e. g., Lamberti v. Wainwright, 513 F.2d 277 (5th Cir. 1975).

Without reviewing the rather complicated facts, it is sufficient to say that, following the denial of his post-trial motions in state trial court to set aside the contempt judgment, Bufalino filed on October 10, 1978, a notice of appeal to the Florida District Court of Appeal, Third District. On the following day (October 11), Without exhausting his state remedies, he filed the present application for habeas corpus relief in the United States District Court. His petition for habeas relief was orally granted following a hearing on October 13, 1978, with written order entered November 2, 1978.

We emphasize again that, despite the unresolved pendency of a state appeal, the district court acted on the merits of Bufalino's application for habeas relief. (It did not, for instance, merely stay execution of the contempt sentence pending resolution by state or federal court of any federal constitutional issues thereby raised.) In brief, Bufalino concedes, "It is true that petitioner did not present his claims to the state appellate courts." However, he argues that the exhaustion doctrine should not here apply so as to prevent appellate consideration of his constitutional claim because the federal district court reached the merits and granted him habeas relief, citing Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (en banc).2

A state prisoner is ordinarily not able to obtain habeas corpus relief from a federal court unless he has first exhausted the available state remedies. 28 U.S.C. § 2254(b) and (c).3 See generally 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4264 (1978). The exhaustion doctrine is grounded on notions of comity; the exhaustion requirement is an accommodation of the federal system to give the state the initial opportunity to decide (and correct if need be) alleged violations of federal constitutional rights. Wilwording v. Swenson, 404 U.S. 249, 250, 92 S. Ct. 407, 408-09, 30 L. Ed. 2d 418 (1971). The exhaustion rule does not relate to the jurisdiction of the federal court but rather addresses the appropriate exercise of that jurisdiction in light of our unique American system of dual sovereignty.

Subject to some qualification (not pertinent here), the exhaustion doctrine requires that the federal claim must have been presented to the highest court of the State, either on direct review of the conviction or in a post-conviction attack.4 As stated in Picard v. Connor, 404 U.S. 270, 275, 276, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971), "the federal claim must be fairly presented to the state courts. . . . Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies."

The respondents asserted below a lack of exhaustion of state remedies, both orally at the initial hearing and again in post-ruling pleadings and arguments thereon.5 The petitioner candidly admits both in brief and at oral argument that he did not exhaust his available state remedies on any of his claims before the federal district court granted the writ. However, petitioner argues that requirements of comity are not controlling on appeal when the district court has already reached the merits of petitioner's claims, whether they be exhausted or unexhausted.

The petitioner's reliance on Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978) (en banc), as support for that proposition is misplaced. Galtieri held that, on those rare occasions where a federal district court has erroneously reached the merits of an exhausted claim in a "mixed" habeas petition,6 and an appeal is taken from this dispositional order, we will review the merits of district court determinations respecting exhausted claims. We noted that, once a federal habeas court has reached the merits of such a claim and the case is presented for appellate review, the policy considerations that dictate dismissal in the district court for want of exhaustion are no longer controlling, and the reviewing court may entertain the claim on its merits. See Abdalian & Lachman, New Fifth Circuit Practice in Habeas Corpus Cases, 27 La.B.J. 17 (1979).

The Galtieri rule should not be extended to instances such as the present, where a petitioner has not exhausted Any of his constitutional claims. See Lamberti v. Wainwright, 513 F.2d 277 (5th Cir. 1975) (similarly applying the exhaustion-preclusion doctrine on appeal, despite district court grant of habeas relief). To extend Galtieri to situations where none of the claims are exhausted, as here, would ignore the codified exhaustion requirement. The exhaustion requirement reflects the federal policy that attempts to effect the proper balance between the roles of state and federal institutions protecting federal rights. This petitioner should present his contentions in the state courts before resorting to federal habeas corpus.

We should further note that, prior to the argument of this appeal, the Florida appellate court dismissed Bufalino's appeal from his state conviction. Bufalino v. State, 372 So. 2d 479 (Fla.Dist.Ct.App.1979). This gave us some concern, because "(a) federal court can give relief, even though the state remedies had not been exhausted when the habeas corpus petition was filed, if they are exhausted by the time that the federal court acts." 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4264, at 654 (1978), Citing Sharpe v. Buchanan, 317, U.S. 238, 63 S. Ct. 245, 87 L. Ed. 238 (1942), and Thomas v. Teets, 205 F.2d 236 (9th Cir. 1953), Cert. denied, 346 U.S. 910, 74 S. Ct. 240, 98 L. Ed. 407 (1953). However, in the present instance, the state appeal was dismissed for procedural reasons.7 Consequently, the state court was not given a fair opportunity to pass on the merits of his constitutional claim, See Picard v. Connor, supra. Therefore, state remedies have not been exhausted. Accord, Harris v. Superior Court of the State of California, 500 F.2d 1124 (9th Cir. 1974) (en banc), Cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).

Accordingly, the judgment of the district court is reversed, and the cause is remanded with directions to dismiss the petition without prejudice to petitioner's reapplication, if necessary, following exhaustion of his state court remedies in respect of his claims.

REVERSED AND REMANDED.