UNITED STATES EX REL. BELL v. Anderson, 157.

• Decision Date: 26 January 1972
• Docket Number: No. 157.,157.
• Citation: 337 F. Supp. 419
• Parties: UNITED STATES of America ex rel. Lorenzo BELL, Petitioner, v. Raymond W. ANDERSON, Warden, Delaware Correctional Center, Respondent.
• Court: U.S. District Court — District of Delaware

337 F. Supp. 419

UNITED STATES of America ex rel. Lorenzo BELL, Petitioner, v. Raymond W. ANDERSON, Warden, Delaware Correctional Center, Respondent.

No. 157.

United States District Court, D. Delaware.

January 26, 1972.

Lorenzo Bell, pro se.

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

STEEL, District Judge:

Petitioner, proceeding pro se and in forma pauperis, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, et seq. seeking to be released from State custody under a sentence by the Delaware Superior Court. Petitioner alleges a number of grounds why his detention is unlawful. Construing the petition liberally, it may be assumed that petitioner has exhausted his State Court remedies, except in two particulars, as to which the petition affirmatively shows that he has not.

The petition discloses that petitioner has never submitted to the Delaware Courts his claim that his detention is illegal because (1) he was held in custody for over 75 hours before he was taken before a magistrate, charged with the crime, and advised of his right to counsel and to bail, and (2) the State failed to prove the currency found in his possession was the same as that taken in the robbery for which apparently he was convicted. The petition alleges that the petitioner brought to his attorney's attention the long delay which occurred before he was taken before a committing magistrate, that his lawyer told him that he (the lawyer) was not a constitutional lawyer, and that he (the petitioner) knew of nothing further that he could do.

Section 2254(b) of Title 28 U.S.C. provides:

An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

Superior Court Criminal Rule 35(1), Del.C.Ann. appears to provide a post-conviction remedy which petitioner may pursue to raise the two points which he alleges have not been passed upon by the Delaware Courts. See United States ex rel. Crawford v. Anderson, 296 F.Supp. 1 (D.Del.1969), United States ex rel. George v. Anderson, 293 F.Supp. 807 (D.Del.1968). Obviously this Court is barred by section 2254(b) from considering either of these points unless and until petitioner has exhausted his State Court remedies with respect to them.

The question remains, however, whether this Court should pass upon the grounds of the petition which are alleged to have been previously submitted to and passed upon by the Delaware Courts unfavorably to petitioner.

In Hughes v. Heinze, 268 F.2d 864 (9th Cir. 1959) the petitioner alleged eight reasons why a writ of habeas corpus should issue. Five had never been passed upon by the State Court under whose judgment petitioner was incarcerated. The District Court considered the three grounds which...