This habeas corpus proceeding challenges the constitutionality of certain sections of the New York Penal Law which govern the sentencing of Class A felony drug offenders.

Petitioner was convicted in March, 1976 of violations of Penal Law sections 220.21 (McKinney’s Supp. 1978) (criminal possession of a controlled substance in the first degree) and 220.43 (McKinney’s Supp. 1978) (criminal sale of a controlled substance in the first degree), both of which are Class A-I felonies.1 He was sentenced pursuant *659to Penal Law Section 70.00, subd. 2, para, (a), subd. 3, para. (a)(i),2 to concurrent indeterminate terms of from fifteen years to life on the possession count and from twenty-five years to life on the sale count.

Petitioner has filed but not perfected an appeal to the Appellate Division, First Department. Although over two years have elapsed since petitioner’s conviction, there do not appear to be any state-imposed or other obstacles to his going forward with that appeal.

Instead, however, petitioner seeks relief in this Court urging that the sentences imposed upon him are so disproportionately severe as to constitute cruel and unusual punishment in violation of the Eighth Amendment. He also argues that the normal requirement that he first exhaust his state remedies before seeking collateral federal relief, as embodied in 28 U.S.C. § 2254(b), (c), should not be applied in this case, as it would be futile for him to do so in light of a decision by the New York Court of Appeals, People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975).

Petitioner’s arguments as to both the merits of his constitutional claim and the applicability of the “futility” exception to the exhaustion requirement3 rely heavily on the decision of the District Court in Carmona v. Ward, 436 F.Supp. 1153 (S.D.N. Y. 1977), decided approximately four months prior to the filing of his petition. With respect to the exhaustion issue, however, Carmona is not dispositive of his case; moreover, even if it did control here, the *660result in Carmona —which held certain sections of the New York statute to be unconstitutional — has since been reversed by the Court of Appeals for the Second Circuit. Carmona v. Ward, 576 F.2d 405 (1978) (petition for rehearing and suggestion for rehearing en banc denied, June 27, 1978). In light of these developments, petitioner’s reliance on Carmona is not well taken.

The New York “drug law”, passed in 1973, was upheld in sweeping terms by the state Court of Appeals in People v. Broadie, supra. The petitioners in Carmona challenged that result. One of the three petitioners was herself a defendant in Broadie and clearly had exhausted her state remedies. The other two had been convicted under the same statutory-provisions as were upheld in Broadie and consequently met the futility requirement.4

Petitioner, however, was convicted of more serious drug offenses, classified as A-I felonies, which were not before the courts in Broadie and Carmona. Defendants in Broadie, and petitioners in Carmona, were convicted of Class A-II and A-III felonies, which carried the same maximum sentence of life imprisonment as does an A-I conviction, but minimum terms of between either one year or six years and eight and one-third years. See note 2 supra5 The finding of exhaustion in Carmona, therefore, is not dispositive of the issue in this case. In a decision subsequent to Broadie, however, the New York Court of Appeals did uphold the constitutionality of the sentencing provision applicable to Class A-I drug felonies — the provision which petitioner challenges in this Court — against the claim that it was so severe as to be unconstitutional. People v. Jones, 39 N.Y.2d 694, 385 N.Y.S.2d 525, 350 N.E.2d 914 (1976). Thus, were the sole issue the facial constitutionality of that sentencing provision, the New York Court of Appeals decision in Jones would lend strong support to petitioner’s contention that the pursuance of state remedies would be futile.

*661There remains, however, the question of the sentencing provision’s constitutionality as applied. The sentence imposed in Jones was an indeterminate term of from fifteen years to life. Petitioner herein was sentenced to the considerably more severe term of from twenty-five years to life. As the majority in Jones noted, of course, “[rjegardless of its severity, a sentence of imprisonment which is within the limits of a valid statute ordinarily is not a cruel and unusual punishment in the constitutional sense . . . ” People v. Jones, supra, at 697, 385 N.Y.S.2d at 526, 350 N.E.2d at 915 (citations omitted). Nonetheless, both Broadie and Jones recognized that there might in a particular case be “exceptional circumstances which would justify a variance from [the] general rule”, Id.; People v. Broadie, supra, 37 N.Y.2d at 119, 371 N.Y. S.2d at 482, 332 N.E.2d at 347. Indeed, Chief Judge Breitel, joined by two other members of the state Court of Appeals, would have invoked this exception and reversed the conviction in Jones as an unconstitutional application of the statute.

Thus, although petitioner, tracking the language of the district court in Carmona, has indicated that he too is willing to waive a factual hearing and have the matter treated solely as a question of the statute’s facial constitutionality, it seems clear from Broadie and Jones that such a waiver would not be appropriate here, where petitioner has not presented to the state courts the question of the sentencing provision’s constitutionality as applied in his case.6

Petitioner’s efforts to identify his case with Carmona are, of course, entirely understandable in light of the fact that his petition was filed prior to the reversal of the decision below in that case. In the present state of the law, however, if petitioner were successful in satisfying this Court that the issues in his case are indeed identical with those in Broadie, Jones and Carmona, he would have established futility for exhaustion purposes only at the cost of establishing futility on the merits, i. e., with the consequence of establishing that the decision of the Court of Appeals of the Second Circuit in Carmona fully controls this case.

Doctrines of exhaustion and comity 7 dictate that petitioner pursue in the appellate courts of the state the appeal which he has already initiated, thus enabling the state courts to consider in the first instance whether the substantially more severe sentence which he received and any other facts and circumstances which may be peculiar to his case distinguish it from Broadie and Jones and entitle him to the relief he requests.

Petition denied.

SO ORDERED.