United States ex rel. Senk v. Russell
Decision Date | 06 June 1968 |
Docket Number | No. 17069.,17069. |
Citation | 396 F.2d 445 |
Parties | UNITED STATES of America ex rel. Frank Earl SENK, Appellant, v. H. E. RUSSELL, Superintendent, State Correctional Institution, Huntingdon, Pennsylvania. |
Court | U.S. Court of Appeals — Third Circuit |
Gailey C. Keller, Smith, Eves & Keller, Bloomsburg, Pa., for appellant.
Nickolas B. Piazza, Asst. Dist. Atty., Bloomsburg, Pa., for appellee.
Before McLAUGHLIN, KALODNER and VAN DUSEN, Circuit Judges.
This case is before the court on appeal from an order of the District Court, denying appellant's petition for a writ of habeas corpus entered after careful consideration of the state court record, findings and conclusions. See United States v. Russell, 274 F.Supp. 783 (1967). The background of the case is accurately stated as follows in the first paragraph of Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97, 98 (1966):
See 223 A.2d at 99.
Subsequent to the opinion and order of the District Court in this case, we have ruled that the Pennsylvania state courts should be given an opportunity to act with respect to alleged denial of the constitutional rights of a Pennsylvania prisoner seeking a writ of habeas corpus in the federal court through a proceeding brought under the Pennsylvania Post Conviction Hearing Act, 19 P.S. §§ 1180-1 to 1180-14. United States ex rel. Singer v. Myers, 384 F.2d 279 (3rd Cir. 1967). In making its findings and conclusions in November 1964, the state trial court did not have before it the June 1966 decisions of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); and Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).2 In view of the prolonged period of custody and questioning of the appellant and the failure to advise him fully as to the extent of his privilege against self-incrimination as discussed in the foregoing cases, we will affirm the order of the District Court solely for the reason that appellant has not exhausted his available state remedies, as required by 28 U.S.C. § 2254, and without prejudice to his right to apply for relief under 19 P.S. §§ 1180-1 to 1180-14, as stated above. The state trial court will have the opportunity to consider this case in the light of the above-cited 1966 decisions of the Supreme Court of the United States when a proceeding under the Post Conviction Hearing Act is brought before it.
1 A petition for writ of certiorari to review this September 27, 1966, decision was denied. Senk v. Pennsylvania, 387 U.S. 914, 87 S.Ct. 1644, 18 L.Ed.2d 638 (1967). One State Police officer conceded that he did not advise appellant of his right to remain mute because appellant stated that he was well aware of his rights, that he had been involved with the police many times, and that he had been through two or three court trials At the time appellant gave his statement on the early morning of January 21, 1962, he was warned that "anything you say may be used against you in court" but he...
To continue reading
Request your trial-
Senk v. Zimmerman
...Pa. 129, 131, 223 A.2d 97 (1966), cert. denied, 387 U.S. 914, 87 S.Ct. 1694, 18 L.Ed.2d 638 (1967). See also United States ex rel. Senk v. Russell, 396 F.2d 445 (3d Cir.1968) (affirming dismissal of Senk's first petition for habeas corpus on grounds that Senk had failed to exhaust state rem......
-
United States ex rel. Senk v. Brierley
...prejudice to his right to apply for relief under 19 P.S. §§ 1180-1 to 1180-14, as stated above." United States ex rel. Senk v. Russell, 396 F. 2d 445, 447 (3d Cir. 1968) (per curiam). The opinion of this court makes it quite clear that all matters which the appellant wished to raise in the ......
-
Com. v. Senk
...783 (M.D.Pa.1967). An appeal to the U.S. Court of Appeals was dismissed for failure to exhaust state remedies. U.S. ex rel. Senk v. Russell, 396 F.2d 445 (3rd Cir. 1968).2 Post-Conviction Hearing Act, Act of January 25, 1966, 19 P.S. § 1180-1 et seq. (amended 1981).3 At that time this Court......
-
United States ex rel. Smith v. Brierley
...he should not be forced to go through the useless procedure of resubmitting his claims to the state courts.1 In United States ex rel. Senk v. Russell, 396 F.2d 445 (3 Cir., 1968), petitioner was convicted by a jury in Columbia County of murder in the first degree. On appeal the Pennsylvania......