Biggs, Kalodner and Seitz, Circuit Judges.
The relator, Brown, is presently serving a life sentence for first degree murder. He petitioned for habeas corpus in the court below and this was denied. He has appealed. The relevant facts are as follows: On October 1, 1951, at about 4 A.M., Brown was taken into custody and questioned by the New Jersey police. At that time he was seventeen years old. Later that day Brown was taken to another police station, where he was questioned for the first time about the murder of Jeremiah Delhagan. At about 11 P.M. he confessed to his involvement in the murder. He was kept in police custody and on the following day was given a preliminary hearing, without counsel, at which it was determined that he should be held for action by the grand jury. The State of New Jersey then filed a petition against Brown in the Monmouth County Juvenile Court which has exclusive jurisdiction over juveniles. See N.J.S. 2A:4-14, N.J.S.A. The following day the Juvenile Court found the offense charged to be of a heinous nature and referred the matter to the Prosecutor of Monmouth County for indictment and prosecution in the state criminal courts. This waiver of jurisdiction by the Juvenile Court was ordered without a hearing. It was done pursuant to the then existing Laws of New Jersey, 1948, ch. 284, pp. 1191-1192,*fn1 which read: "If it shall appear to the satisfaction of the court [Juvenile & Domestic Relations Court] that the case of any person between the ages of sixteen and eighteen years should not be dealt with by the court, either because of the fact that the person is an habitual offender, or has been charged with an offense of a heinous nature, under circumstances which may require the imposition of a sentence rather than the disposition permitted by this chapter for the welfare of society, then the court may refer such case to the prosecutor of the pleas of the county wherein the court is situate."
Brown was subsequently indicted and at his trial the judge found, after a hearing held in front of the jury,*fn2 that his confession was voluntary and admissible.*fn3 The jury returned a verdict of First Degree Murder and relator was sentenced to life imprisonment on December 19, 1951. His conviction was affirmed on appeal, State v. Vaszorich, 13 N.J. 99, 98 A.2d 299 (1953) and certiorari was denied by the United States Supreme Court, Vaszorich v. New Jersey, 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953).
Two major issues are raised by this appeal. The first is whether the relator is entitled to relief under Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). In Kent, as in the instant case, the District of Columbia Juvenile Court waived its jurisdiction without a hearing. The only requirement of the District of Columbia statute was a "full investigation" before such a waiver. The waiver order stated that it was made after "full investigation". In the district court Kent moved to dismiss the indictment on the ground that the Juvenile Court's waiver was invalid. The district court overruled the motion and Kent was subsequently convicted of housebreaking and robbery. His conviction was affirmed by the Court of Appeals for the District of Columbia. 119 U.S.App.D.C. 378, 343 F.2d 247. The United States Supreme Court reversed. The Court found that the waiver procedure was critically important in that the juvenile lost several rights and immunities that come from being within the exclusive jurisdiction of the Juvenile Court. The Supreme Court held that "There is no place in our system of law for reaching a result of such tremendous consequences without ceremony -- without hearing, without effective assistance of counsel, without a statement of reasons."*fn4 The case was therefore remanded to the District Court for the District of Columbia*fn5 for a hearing on whether there had been a proper waiver of Juvenile Court jurisdiction.
The applicability of Kent v. United States to the facts in the case before us has never been decided by the New Jersey courts. The decision of the Supreme Court was handed down in 1966, subsequent to Brown's post conviction proceedings in the state courts.*fn6 Nor has this issue been decided by the courts of New Jersey in any other case.*fn7 Furthermore the United States Supreme Court has not had occasion to apply Kent in any other case involving waiver of juvenile court jurisdiction.*fn8 Assuming arguendo that the principle of Kent is applicable here another issue immediately arises, undecided by any court, as to whether the principle of Kent should be applied retroactively. We point out that the New Jersey State courts might apply the doctrine of retroactivity where Federal tribunals might have to refuse to apply it. We think it cannot be successfully maintained that New Jersey has not a real and vital interest in the determination of these issues.*fn9 We hold, pursuant to 28 U.S.C. § 2254, that Brown must present these issues to the New Jersey State courts*fn10 and exhaust all state remedies, note 3, supra, before he is entitled to have them adjudicated by the courts of the United States. Our position we think is somewhat fortified by the decision in In the Matter of Whittington, 391 U.S. 341, 88 S. Ct. 1507, 20 L. Ed. 2d 625 (1968).
The judgment of the court below will ...