United States ex rel. Howard v. Russell, 17304.

Decision Date07 January 1969
Docket NumberNo. 17304.,17304.
PartiesUNITED STATES of America ex rel. Stanley HOWARD, Appellant, v. Harry E. RUSSELL, Superintendent, State Correctional Institution, Huntingdon, Pa.
CourtU.S. Court of Appeals — Third Circuit

H. David Rothman, Neighborhood Legal Services Association, Pittsburgh, Pa., for appellant.

Charles B. Watkins, Asst. Dist. Atty., County of Allegheny, Pittsburgh, Pa. (Robert W. Duggan, Dist. Atty. of Allegheny County, Carol Mary Los, Asst. Dist. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before KALODNER, FORMAN and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

In the instant case, the relator Howard killed an instructor in the State Correctional Institution at Pittsburgh, Pennsylvania, on November 12, 1965. Following his entry of a plea of guilty generally to a murder indictment, he was adjudged guilty of murder in the first degree by a Pennsylvania court and sentenced to death. He appealed to the Supreme Court of Pennsylvania, contending, inter alia, (1) he had a history of mental illness and was mentally ill at the time of the killing, and the sentencing court had not considered his mental illness in fixing the degree of guilt; (2) he was denied his "constitutional right to the effective assistance of counsel" by the failure of the prison authorities to give him a prompt mental examination; and (3) the imposition of the death sentence, under the prevailing circumstances, inflicted cruel and unusual punishment in violation of the Federal and Pennsylvania Constitutions.

The Pennsylvania Supreme Court affirmed the first degree murder adjudication and death sentence at Com. v. Howard 426 Pa. 305, 319, 231 A.2d 860, 867 (1967), in an opinion which considered all of relator's contentions and specifically ruled on the issue whether under the prevailing circumstances imposition of the death penalty constituted "cruel and unusual punishment in violation of the Federal and State Constitutions."

The relator petitioned the Supreme Court of the United States for a writ of certiorari, alleging that the imposition of the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Federal Constitution. The petition was denied at 390 U.S. 911, 88 S.Ct. 839, 19 L.Ed.2d 884 (1968).

The relator then petitioned the United States District Court for the Western District of Pennsylvania for a writ of habeas corpus raising the identical issue presented in his denied petition for certiorari.

The District Court, in an opinion presently unreported, denied habeas corpus relief on the assigned ground that the relator had failed to exhaust available state remedies, viz., habeas corpus and/or the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq. In doing so, it stated that it was "incumbent" upon it to deny relator's petition under United States ex rel. Singer v. Myers, 384 F.2d 279 (3 Cir. 1967).

In its opinion, the District Court further stated:

"After a complete examination of
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10 cases
  • United States ex rel. Bennett v. Rundle
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 5, 1969
    ...73 S.Ct. 397, 97 L.Ed. 469 (1953); United States ex rel. Fletcher v. Maroney, 413 F.2d 16 (3 Cir. 1969); United States ex rel. Howard v. Russell, 405 F.2d 169, 171 (3 Cir. 1969). In fact, however, under Pennsylvania's Post-Conviction Hearing Act relator is not eligible for collateral relief......
  • United States ex rel. Russo v. State of New Jersey
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 12, 1971
    ...on this point to the petitioner at this time. Brown v. Allen, supra, 344 U.S. at 487, 73 S.Ct. 397 (1953); United States ex rel. Howard v. Russell, 405 F. 2d 169, 171 (3rd Cir. 1969); United States ex rel. Fletcher v. Maroney, 413 F.2d 16 (3rd Cir. 1969); compare United States ex rel. Gockl......
  • United States ex rel. Moore v. Russell
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 7, 1971
    ...when the petitioner's contentions have been presented to and considered by the state's highest court. United States ex rel. Howard v. Russell, 405 F.2d 169 (3d Cir. 1969). Mere denial by the State Supreme Court of a relator's petition for allocatur has been held sufficient to satisfy this r......
  • Cabrera v. Smith, Civ. A. No. 5650.
    • United States
    • U.S. District Court — District of Vermont
    • December 10, 1969
    ...conviction relief remedies. Roberts v. Lavallee, 389 U.S. 40, 42-43, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); United States ex rel. Howard v. Russell, 405 F.2d 169, 171 (3d Cir. 1969); Palmer v. Comstock, 394 F.2d 395 (9th Cir. 1968). See also McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965). Und......
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