opinion: King HAIRSTON, Appellee, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellant.
  No. 73-2216.
  United States Court of Appeals, Fourth Circuit.
  Argued June 4, 1974.
  Decided July 3, 1974.
  Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellant.
  Gordon M. Kent, Altavista, Va. [court-appointed counsel] (Kent & Kent, Altavista, Va., on brief), for appellee.
  Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting in banc.
  BUTZNER, Circuit Judge:
  The sole issue presented by this appeal is whether a Virginia prisoner, King Hairston, is entitled to a writ of habeas corpus on the basis of his complaint that black persons were systematically excluded from his grand and petit juries in 1942. Hairston did not raise this issue at his trial. He initially alleged it in his state habeas proceeding. We previously found that Hairston had established a prima facie case of systematic exclusion, and we remanded the case for an evidentiary hearing to afford the state the opportunity to present rebuttal evidence. The district court then ruled that Hairston was entitled to the writ, and a panel of this court affirmed on the opinion of the district court.
  We subsequently withdrew the panel decision, and reheard the .case in banc to determine whether McNeil v. North Carolina, 368 F.2d 313 (4th Cir. 1966), should be overruled because of two recent decisions of the Supreme Court, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In McNeil, we held that a prisoner who had not complied with state law by challenging the jury before his plea was not barred by the state rule of waiver from raising the issue of systematic exclusion in collateral proceedings. In contrast to McNeil, the Supreme Court held in Davis that a federal prisoner waives objection to the composition of the grand jury if he does not raise the issue before entry of his plea as required by Federal Rule of Criminal Procedure 12(b)(2). Of course, pursuant to the rule, a court may grant relief from the waiver. In Tollett, the Court held that a state prisoner who pleaded guilty could not attack the composition of the grand jury in a collateral proceeding. However, the Court reiterated that it was still an open question whether systematic racial exclusion in the selection of a grand jury could be raised in a federal habeas corpus action after trial on a plea of not guilty. 411 U.S. 260 n.1, 93 S.Ct. 1602. Thus, the issue posed by McNeil has not yet been definitively decided by the Supreme Court, but at least one intermediate court has found an apt analogy in Davis. See, e. g., Rivera v. Wainwright, 488 F.2d 275 (5th Cir. 1974).
  During the course of the in banc hearing, it became apparent that the state habeas court had considered the merits of Hairston’s allegation and that it had not relied on the waiver mandated by the Virginia statute which dealt with challenges to juries at the time of Hair-ston’s trial. In this posture of the case, the constitutionality of the composition of the jury is before us as a litigable issue. Cf. Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964). The appeal, therefore, presents an inappropriate occasion for reconsidering McNeil, and we reserve the question of its viability for another day.
  On the merits of Hairston’s claim, the district judge’s finding of facts and application of law are unassailable. Accordingly, the judgment is affirmed.
  . Hairston v. Cox, 459 F.2d 1382 (4th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2266, 36 L.Ed.2d 963 (1973).
  . Hairston v. Cox, 361 F.Supp. 1180 (W.D.Va. 1973).
  . Hairston v. Cox, No. 73-2216 (4th Cir., March 20, 1974) (opinion withdrawn).
  . Accord, Parker v. Boss, 470 F.2d 1092 (4th Cir. 1972).
  . Virginia Code Ann. §§ 4895, 6002 (1936). Virginia’s Rules of Criminal Practice and Procedure, which became effective January 1, 1972, incorporate many provisions of the Federal Rules of Criminal Procedure. The provisions of Virginia Rule 3A:12 (c)(2) and (3) pertaining to motions before trial, waiver of objections, and relief from waiver are substantially similar to Federal Rule 12(b)(2).
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama