United States v. Cavell, 2214.

• Decision Date: 25 August 1958
• Docket Number: No. 2214.,2214.
• Citation: 164 F. Supp. 957
• Parties: UNITED STATES of America ex rel. Robert THOMPSON, Petitioner, v. Angelo C. CAVELL, Warden.
• Court: U.S. District Court — Eastern District of Pennsylvania

164 F. Supp. 957

UNITED STATES of America ex rel. Robert THOMPSON, Petitioner, v. Angelo C. CAVELL, Warden.

No. 2214.

United States District Court W. D. Pennsylvania.

August 25, 1958.

No counsel for either party.

GOURLEY, Chief Judge.

In this habeas corpus proceeding arising out of a state prosecution, petition is directed to the President Judge of the United States District Court for the Western District of Pennsylvania to set aside and strike from the record orders entered by the Honorable Herbert P. Sorg, an associate member of the court, refusing writ of habeas corpus and denying application for certificate of probable cause.

Petitioner advances the legal thesis that since the original petition for writ of habeas corpus was presented to the Honorable Rabe F. Marsh, Jr., an associate member of the court, Judge Marsh as a matter of law was required himself to make disposition of said petition.

In short, it is claimed that where a petition for writ of habeas corpus is directed to a named member of a multiple complement court, the judge to whom the petition is directed is required to act upon and consider said petition, and that a proceeding of said nature may not be assigned or heard by any other member of a multiple complement court.

In support of his position, petitioner cites the following authorities: Ex parte Wilson, D.C., 62 F.Supp. 793; Rutkowski v. Johnston, D.C., 52 F.Supp. 430 and 28 U.S.C.A. § 2241(c) (2, 3), 2243.

The District Court decision of Rutkowski v. Johnston, supra, was reversed by the United States Court of Appeals for the Ninth Circuit, Rutkowski v. St. Sure, 143 F.2d 715, and although the District Court decision in Ex parte Wilson, supra, was not appealed to the United States Court of Appeals for the Fifth Circuit, Texas being within the Fifth Circuit, I am not inclined to follow or adopt the reasoning and conclusion of said District Court.

It is my further judgment that the Judicial Code, 28 U.S.C.A. § 2241 et seq., does not require a judge of a multiple complement court to hear petitions addressed to the named member of said court.

The practice which is followed in this court of assigning petitions for writ of habeas corpus on a regular rotation basis by the Clerk of Courts complies with law. To depart from this settled practice would make it extremely difficult for the District Court to conduct its business in an expeditious and orderly manner where circumstances frequently arise that numerous petitions of this...