We feel that the principles of comity require exhaustion of the state remedies. United States ex rel. Wax v. Twomey, 465 F.2d 352 (7th Cir. 1972). For the foregoing reasons, the judgment of the district court is hereby affirmed.
Schantz is, therefore, not inconsistent with the cases, previously cited, which hold there is no absolute right to counsel at a pretrial psychiatric examination. United States ex rel. Wax v. Twomey, 465 F.2d 352, 353 (7th Cir. 1972). In the present case, the rule of Schantz is inapplicable since defense counsel consented to the examination by Dr. Feinerman scheduled for August 14 and advised Greene to talk to Dr. Feinerman. There was a previous examination by Dr. Feinerman on August 3, of which defense counsel admittedly did not have prior knowledge.
Here, it is undisputed that the defense not only knew of the existence of the shoe, but they had also been given a copy of the report by the crime laboratory of the result of its inspection of the shoe, and, in these circumstances, Brady is simply inapposite. United States v. Ruggiero (2d Cir. 1973), 472 F.2d 599; United States ex rel. Wax v. Twomey (7th Cir. 1972), 465 F.2d 352. The relevant portions of the record relating to the chronology of requests for and discussion of the shoe are set forth in the well-reasoned dissenting opinion of Mr. Justice Stamos in the appellate court:
That same rule has been followed by the Federal courts. In United States ex rel. Wax v. Twomey (7th Cir. 1972), 465 F.2d 352, Mr. Justice Clark wrote that arguments based on Brady are inapposite when counsel had knowledge of the supposedly suppressed evidence. In United States ex rel. Raymond v. People (7th Cir. 1971), 455 F.2d 62, although defendant knew of the suppressed evidence, the court granted a petition for habeas corpus because defendant's counsel was not aware of that evidence.