United States v. Russell

• Decision Date: 05 April 1967
• Docket Number: Civ. No. 67-262.
• Citation: 266 F. Supp. 93
• Parties: UNITED STATES of America ex rel. Donald C. PETERSON, Petitioner, v. Harry E. RUSSELL, Superintendent State Correctional Institution, Huntingdon, Pennsylvania, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

266 F. Supp. 93

UNITED STATES of America ex rel. Donald C. PETERSON, Petitioner, v. Harry E. RUSSELL, Superintendent State Correctional Institution, Huntingdon, Pennsylvania, Respondent.

Civ. No. 67-262.^*

United States District Court W. D. Pennsylvania.

April 5, 1967.

Donald Peterson, pro se.

Louis Abromson, Asst. Dist. Atty., County of Allegheny, Pittsburgh, Pa., for respondent.

MEMORANDUM AND ORDER

MARSH, District Judge.

Relator, Donald C. Peterson, petitions for a writ of habeas corpus alleging illegal detention for the following reasons: (1) coerced confession; (2) fraudulent deprivation of preliminary hearing before a magistrate; and (3) untimely assignment of inadequate and incompetent counsel.

In my opinion, the petition should be denied.

The records of relator's 11 convictions of burglary in a non-jury trial held on June 18 and 19, 1963, in the Criminal Court of Allegheny County, Pennsylvania were, pursuant to the Order of this court, presented by the District Attorney at the hearing on the Rule to Show Cause and admitted into evidence. The relator is presently serving concurrent sentences in the State Correctional Institution at Huntingdon, Pennsylvania, of 4 to 8 years imposed at Indictment Nos. 70 and 71, May Term, 1963, Oyer and Terminer, Allegheny County; sentences were suspended at the remaining 9 Indictments, i. e., Nos. 66 to 69, inclusive, and Nos. 72 to 76, inclusive, May Term, 1963.

Relator's first ground, i. e., that his confession was coerced, need not be considered for the reason that this allegation was not presented to the state court by way of appeal or by habeas corpus. This court has no jurisdiction to consider this ground until state remedies have been exhausted. United States ex rel. Anderson v. Cavell, D.C., 148 F.Supp. 681, 685, aff'd 249 F.2d 656 (3d Cir. 1957); United States ex rel. Ackerman v. Johnston, D.C., 139 F.Supp. 890, aff'd 235 F.2d 958 (3d Cir. 1956).

Relator's second ground, i. e., that he was fraudulently deprived of a preliminary hearing, is without merit. The sufficiency or regularity of a preliminary hearing prior to indictment does not present a federal constitutional question. A preliminary hearing in Pennsylvania is not a critical stage of a criminal proceeding. Assuming that relator was tricked into waiving such a hearing, i. e., because he had no lawyer at the time, such did not influence his subsequent convictions and was not a deprivation of due process. Cf. United States ex rel. Lamborn v. Rundle, 251 F.Supp. 766 (E.D.Pa.1966); United States ex rel. Gary v. Hendrick, 238 F.Supp. 757 (E.D.Pa.1965); United States ex rel. Hazen v. Maroney, 217 F.Supp. 328 (W.D.Pa.1963).

Relator's third ground, i. e., untimely appointment of inadequate and incompetent counsel, is, likewise, without merit. The transcript of the trial reveals that no request for a continuance was made to the trial judge by relator or his counsel. It does not appear that relator desired to call any witnesses in his behalf. In denying relator's motion for a new trial, the Court of Oyer and Terminer sitting en banc stated that his defense was conducted "in a competent manner by Mr. Levin", who was his appointed counsel.

In reviewing the trial transcript, I could find no evidence to support or justify the complaint that relator was not competently or adequately defended; the trial was by no means a sham or a farce; and the quality of appointed counsel's representation was certainly not such as to constitute a constitutional deprivation. I examined the transcript with regard to relator's specifications in support of his complaint of inadequate representation and find them to be without legal or factual merit. Nothing was done or was not done by Mr. Levin, his couns...