The following excerpt is from United States ex rel. Epton v. Nenna, 446 F.2d 363 (2nd Cir. 1971):
Of course, we are not similarly foreclosed from considering the questions which could properly have been raised only by petition for a writ of certiorari. Brown v. Allen, 344 U.S. 443, 497, 73 S. Ct. 397, 97 L.Ed. 469 (1953) (separate concurrence by Mr. Justice Frankfurter). And to those issues we now turn.
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