United States ex rel. Simmons v. Commonwealth of Pa.

• Decision Date: 18 November 1968
• Docket Number: Misc. No. 3982.
• Parties: UNITED STATES of America ex rel. Peter SIMMONS v. COMMONWEALTH OF PENNSYLVANIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

292 F. Supp. 830

UNITED STATES of America ex rel. Peter SIMMONS v. COMMONWEALTH OF PENNSYLVANIA.

Misc. No. 3982.

United States District Court E. D. Pennsylvania.

November 18, 1968.

Peter Simmons, pro se.

MEMORANDUM AND ORDER.

MASTERSON, District Judge.

The relator, Peter Simmons, currently is incarcerated in the Eastern State Correctional Institution in Philadelphia, Pennsylvania, serving a sentence of one to five years imprisonment imposed upon him by the Honorable Edward Bradley, Judge of the Court of Quarter Sessions of Philadelphia County, Pennsylvania, on June 28, 1967. On July 5, 1968, pursuant to Title 28 U.S.C. § 1915, the relator was granted leave to proceed in this Court in forma pauperis for the purpose of petitioning for a writ of habeas corpus pursuant to Title 28 U.S.C. § 2241 et seq. For reasons discussed below the relator's petition for a writ of habeas corpus is denied.

In November, 1966, the relator was charged with the commission of three separate criminal offenses, i.e. larceny of a motor vehicle, larceny of the license tags of the motor vehicle, and burglary of a motor vehicle. See, respectively, Bills of Indictment Nos. 1249, 1252, and 1250, of the December Sessions, 1966, of the Court of Quarter Sessions, Philadelphia. On March 20, 1967, he was arraigned and pled not guilty to each of these three charges. On that day he waived his right to a jury trial and was tried on all three charges before Judge Bradley of the Court of Quarter Sessions, Philadelphia County. On March 21, 1967, Judge Bradley sustained the relator's demurrers to Bills No. 1249 and 1252, and adjudged the defendant guilty on Bill No. 1250, which, as noted above, charged the defendant with burglary of a motor vehicle. In an order and opinion dated December 11, 1967, Judge Bradley denied the relator's motion for a new trial and the relator's motion in arrest of judgment. The relator's conviction was affirmed by the Pennsylvania Superior Court on February 13, 1968, See, Commonwealth v. Simmons, October Term, 1967, 211 Pa. Super. 768, 237 A.2d 844 (1968), and his subsequent petition for allocatur to the Pennsylvania Supreme Court was denied by per curiam order dated May 31, 1968. Shortly thereafter he commenced his current petition for a writ of habeas corpus here.

On August 23, 1968, after authorizing the relator to proceed in forma pauperis the Court, pursuant to Title 28 U.S.C. § 2243, ordered the respondent, and the District Attorney of Philadelphia County, to show cause within twenty days why the relator's petition for a writ of habeas corpus should not be granted. At that time the Court also ordered the Prothonotary of the Court of Quarter Sessions of Philadelphia County to produce here the record of all proceedings in the relator's case. The state record indicated that none of the constitutional contentions raised here by the relator involved disputed issues of fact, and, accordingly, it was decided that a federal evidentiary hearing would not be necessary. See, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963), and United States ex rel. Montanez v. Rundle, 226 F.Supp. 118, 119 (E.D.Pa., 1964). Also, since the petition raised no complicated factual issues requiring the aid of "* * * experienced trial counsel to sift through a complicated record * * *", United States ex rel. Robinson v. Myers, 222 F. Supp. 845, 848 (E.D.Pa., 1963), aff'd 3 Cir., 326 F.2d 972, the Court decided that it would be un-necessary to appoint counsel to represent the petitioner. This latter decision is consistent with cases interpreting Title 28 U.S.C. § 1915 which have ruled consistently that petitioners proceeding in forma pauperis are not entitled to court-appointed counsel as a matter of right. See, Sanders v. United States, 373 U.S. 1, 13, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

The relator has asserted two arguments in support of his contention that he is being detained in violation of rights secured by the Constitution of the United States:

1) his right to the effective assistance of counsel, under the Sixth and Fourteenth Amendments, was denied because he did not have counsel at his preliminary hearing on November 29, 1966; and

2) his right to be tried in accordance with due process of law was violated because the trial judge rejected the credibility of an alibi witness who testified in his behalf at trial and because there was insufficient evidence to sustain the verdict.

Both the relator's and the Commonwealth's briefs which were presented during the course of the relator's appeals from his conviction, indicate that the relator advanced in the state courts only the single contention that the evidence presented at his trial was insufficient to support a verdict of guilty. In these circumstances it is proper for this Court to consider at the present time only this single argument. See, Title 28 U.S.C. § 2254(b) and (c). Cf. Anderson v. Johnson, 371 F.2d 84 (C.A. 6, 1966). Before this Court rules upon any of the relator's other contentions, such as his argument regarding the absence of counsel at the magistrate's hearing, the relator must present these contentions to the state tribunals through any procedures available to him there. See, Title 28 U.S.C. § 2254(b). It is undisputed that the relator has satisfactorily exhausted all available state remedies in regards to his challenge upon the sufficiency of the evidence.

It is clearly established that a federal court, when collaterally reviewing a state conviction challenged on the basis that it was not supported by the evidence, is to inquire only whether there was any evidence to support the conviction. See, e. g. Garner v. Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); United States ex rel. DeMoss v. Pennsylvania, 316 F.2d 841, 842-843 (C.A. 3, 1963); Young v. Boles, 343 F.2d 136, 138 (C.A. 4, 1965), and United States ex rel. Gaspero v. Pennsylvania, 267 F.Supp. 316, 319 (E. D.Pa.1966). The cases have held that federal jurisdiction is established only when the petitioner has alleged that there was a total absence of evidence to support a guilty verdict. See, e. g. Deham v. Decker, 361 F.2d 477 (C.A. 5, 1966), and Edmondson v. Warden, Maryland...