United States v. Ashe, 140.

• Citation: 80 F. Supp. 914
• Decision Date: 09 November 1948
• Docket Number: No. 140.,140.
• Parties: UNITED STATES ex rel. COLLINS v. ASHE, Warden.
• Court: U.S. District Court — Eastern District of Pennsylvania

80 F. Supp. 914

UNITED STATES ex rel. COLLINS v. ASHE, Warden.

No. 140.

United States District Court W. D. Pennsylvania.

November 9, 1948.

Leonard H. Levenson, of Pittsburgh, Pa., for appellant.

John F. Murphy and Craig T. Stockdale, both of Pittsburgh, Pa., for respondent.

GIBSON, District Judge.

The Court, after further hearing and consideration, makes the following Findings of Fact and Conclusions of Law:

Findings of Fact.

1. The petitioner, Harry Collins, pleaded guilty in the Court of Quarter Sessions of Allegheny County, Pennsylvania, to an indictment at No. 533 May Sessions, 1931, charging breaking and entering with an intent to steal. Section 2, Act of April 22, 1863, P.L. 531, as amended by the Act of March 13, 1901, P.L. 49.

2. The Act violated provided a maximum term of imprisonment of ten years.

3. On May 25, 1931, petitioner was sentenced by the above mentioned Court to "* * * undergo an imprisonment of not less than 5 years or more than 20 years in the Western Penitentiary * * *. This sentence pursuant to Act of Assembly approved April 29, 1929, No. 373." Habitual Criminals Act, 19 P.S.Pa. § 921 et seq.

4. Prior to his sentence the petitioner was not notified by information or indictment of the charge which subjected him to the penalties of the Pennsylvania Habitual Criminals Act.

5. Petitioner was represented by counsel at the time of his sentence.

6. No appeal was taken from this sentence.

7. In applying for his parole in 1936 the petitioner admitted to violations of law which subjected him to the penalties of the Habitual Criminals Act.

8. After being paroled on November 25, 1940, petitioner was convicted in Wisconsin, April 20, 1942, on a charge of burglary and was sentenced to serve a term of from 1 to 5 years.

9. Having been declared delinquent by the Supervisor of Paroles in 1941, the petitioner was returned to the Western Penitentiary on January 7, 1946, after the completion of his term in the Wisconsin institution, by the Oyer and Terminer Court of Allegheny County to complete the sentence under the Habitual Criminals Act.

10. On February 1, 1946, Harry Collins filed a petition for a Writ of Habeas Corpus in the Court of Common Pleas for Allegheny County, alleging that he had been deprived of his liberty without due process of law as provided by the 14th Amendment to our Constitution.

11. The Common Pleas Court's denial of the Writ was affirmed by the Superior Court in October 1946 in Commonwealth ex rel. Collins v. Ashe, 159 Pa.Super. 553, 49 A.2d 265.

12. After the Pennsylvania Supreme Court denied his appeal, without an opinion, petitioner sought relief in this court.

13. In an order made by this Court on January 7, 1948, 74 F.Supp. 987, the petition of Harry Collins for a Writ of Habeas Corpus was denied on the grounds that he had not exhausted his state remedies.

14. An appeal was taken from this order and the Circuit Court of Appeals has remanded the case for further proceedings.

Conclusions of Law.

I. The Pennsylvania Courts in denying the Writ decided a federal question.

II. After the highest appellate state courts have passed upon the federal question in a habeas corpus proceeding, the normal procedure is not to the District Court but to the United States Supreme Court for a Writ of Certiorari.

III. The circumstances of this case do not warrant our departing from the normal procedure.

IV. The petition for Writ of Habeas Corpus must be denied.

Opinion.

Within the past few years the Supreme Court of the United States has handed down a number of opinions wherein the practice of some state courts and state officers was criticized in respect to their criminal procedure. The perhaps unforeseen result was a flood of Habeas Corpus petitions in the district courts by prisoners in state penitentiaries. A number of them ended in the Supreme Court by means of writs of certiorari. The decisions of that Court which followed, although doubtless consistent when properly interpreted, seemed to many lower courts to be conflicting and led to many misconceptions and doubts which still exist. Some of them, so far as this court is concerned, will later be mentioned.

The instant petition is not untypical of the recent cases filed in this court. The failure to observe due legal procedure, as alleged, occurred fifteen years prior to the relator's petition for the writ in the Court of Common Pleas. The relator was charged with violation of a statute having a total penalty of ten years. On being called for sentence the trial court was informed that the defendant was liable to imprisonment under the Habitual Criminals Act, 19 P.S.Pa. § 921 et seq., and proceeded to impose a sentence of five to twenty years, referring only to the date of the Act of Assembly imposing the extra penalty. No notice whatsoever was given to defendant that he was charged with being an habitual criminal. This failure of notice was the sole reason for the writ of habeas corpus which issued pursuant to relator's prayer.

This Court, in January of this year, filed an order dismissing the writ. 74 F.Supp. 987. The Circuit Court of Appeals, on appeal, holding that the record failed to show whether or not the petitioner had exhausted his State remedy, vacated the order and remanded the cause "to the end that the court below may supplement the record by receiving such further evidence as may be necessary * * *." A further hearing was held and we trust the record is now sufficient. As originally submitted, the findings of fact were incomplete.

In the Per Curiam opinion of the Circuit Court of Appeals reference was made to its opinion, Application of Samuel Baer, et al., 3 Cir., 169 F.2d 770, filed August 16, 1948, as setting forth the criteria for the determination of whether or not a petitioner had exhausted his State remedy in habeas corpus. That case held, in substance, that even when the State court had mentioned only the state statute as reason for dismissing a habeas corpus writ, but when such action could not be taken without actually passing upon the federal question, that action was a disposition of the federal issue, and was final in an appellate court. The Circuit Court of Appeals, so holding, and making mention of the modifying case of Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, decided June 14, 1948, held that the petitioners, not having sought a review by certiorari in the Supreme Court of the United States, were precluded from securing the writ in the District Court. In this finding it followed the old rule long in force before it seemed to be partially modified by Wade v. Mayo, supra.

In remanding the present matter for further evidence as to whether or not the relator had exhausted his rights in the State courts, the Circuit Court of Appeals stated:

"If, upon reconsideration, the court is of the opinion that the petitioner has exhausted his state remedy the court should proceed to consider the merits of the petitioner's application under the law of Pennsylvania as exemplified in Commonwealth ex rel. Arnold v. Ashe, 156 Pa. Super. 451, 40 A.2d 875."

Whether this statement was intended as a direction or a suggestion, it created some embarrassment, particularly when considered in...