25:T496,dissenting: I respectfully dissent from the court’s order affirming the district court. In my view, petitioner has failed to exhaust his state remedies as required by 28 *645 U.S.C. § 2254 (b), Picard v. Conner, 404 U.S. 270, 275-76 , 92 S.Ct. 509, 512-13 , 30 L.Ed.2d 438 (1971), and Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). The testimony of an expert “forensic actuary” presenting a new theory of statistical analysis is, in spite of the characterization by petitioner, new evidence that has not been presented to the state courts. This “new method” is new evidence supporting a new theory. Nor do I agree that the affidavits of three witnesses establishing the competency of black persons to serve as grand jurors are properly characterized as “cumulative.” The same may be said of the new census material. Although petitioner’s basic claim has remained the same, the evidentiary basis for that claim changed significantly in the present habeas corpus proceeding from that presented to the state courts years ago. We should vacate the district court’s order with instructions to dismiss the petition without prejudice.26:T4b6,

dissenting:

I respectfully dissent from the court’s order affirming the district court.

In my view, petitioner has failed to exhaust his state remedies as required by 28 *645 U.S.C. § 2254 (b), Picard v. Conner, 404 U.S. 270, 275-76 , 92 S.Ct. 509, 512-13 , 30 L.Ed.2d 438 (1971), and Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). The testimony of an expert “forensic actuary” presenting a new theory of statistical analysis is, in spite of the characterization by petitioner, new evidence that has not been presented to the state courts. This “new method” is new evidence supporting a new theory.

Nor do I agree that the affidavits of three witnesses establishing the competency of black persons to serve as grand jurors are properly characterized as “cumulative.” The same may be said of the new census material.

Although petitioner’s basic claim has remained the same, the evidentiary basis for that claim changed significantly in the present habeas corpus proceeding from that presented to the state courts years ago.

We should vacate the district court’s order with instructions to dismiss the petition without prejudice.

27:Tcd1,