UNITED STATES EX REL. ARMSTEAD v. Russell

• Decision Date: 26 August 1969
• Docket Number: Misc. No. 69-224.
• Citation: 303 F. Supp. 277
• Parties: UNITED STATES of America ex rel. George ARMSTEAD v. Harry E. RUSSELL, Superintendent, State Correctional Institution, Huntingdon, Pennsylvania.
• Court: U.S. District Court — Eastern District of Pennsylvania

303 F. Supp. 277

UNITED STATES of America ex rel. George ARMSTEAD v. Harry E. RUSSELL, Superintendent, State Correctional Institution, Huntingdon, Pennsylvania.

Misc. No. 69-224.

United States District Court E. D. Pennsylvania.

August 26, 1969.

George Armstead pro se.

Joseph Musto, Asst. Dist. Atty., Philadelphia, Pa., for Russell, Supt., State Correctional Institution, Huntingdon, Pa.

MEMORANDUM AND ORDER

MASTERSON, District Judge.

This is a petition for a writ of habeas corpus, filed by George Armstead, which attacks his confinement on a sentence imposed pursuant to Bill No. 205, March Term, 1967, Philadelphia Court of Quarter Sessions.

The petitioner is confined at the State Correctional Institution at Huntingdon, Pennsylvania, on a sentence of two and one-half to five years imposed by the Honorable Juanita Kidd Stout on September 17, 1968 after a trial without a jury. He was convicted of felonious use of narcotic drugs in a trial wherein he was represented by private counsel. No direct appeal was taken from his conviction.

On October 25, 1968, he filed a petition under the Pennsylvania Post-Conviction Hearing Act, 19 P.S. § 1180-1 et seq., asserting numerous grounds for the illegality of his conviction. Counsel was appointed to represent him in that petition. On January 17, 1969, Judge Stout ordered that the petitioner be permitted to file post trial motions nunc pro tunc. Motions in arrest of judgment and for a new trial were filed and were argued by counsel for the petitioner and for the Commonwealth on February 5, 1969. Judge Stout then took the matter under advisement. Under these circumstances, we denied relator's petition for a writ of habeas corpus, Miscellaneous No. 4251, in an opinion filed March 17, 1969, on the ground that the relator had failed to exhaust state remedies. On May 6, 1969, Judge Stout denied the motion in arrest of judgment and the motion for a new trial.

On May 22, 1969, the relator filed another petition for a writ of habeas corpus, which is the petition presently before this Court. In this petition, the relator complains of the failure of the state court to consider his Post-Conviction Hearing Act petition. In answering our inquiry, Mr. Albert A. Ciardi, Jr., who is the Deputy Court Administrator, informed us in a letter dated July 30, 1969, that Judge Stout was unaware that a Post-Conviction Hearing Act petition was pending when she denied the relator's post trial motions on May 6, 1969. The letter goes on to...