Before GOODRICH and KALODNER, Circuit Judges, and FEE, District Judge.
This appeal followed in due course*fn1 the denial of a petition for a writ of habeas corpus in the court below. D.C., 74 F.Supp. 846. The petition was prepared by the petitioner himself; in the wise exercise of his discretion, the learned District Judge permitted him to proceed in forma pauperis, assigned him able counsel who distilled from the petition the single federal question, and held a hearing at which the petitioner was present and testified.
The issue on the merits raised by this appeal is whether the petitioner was deprived of any constitutional rights under the Fourteenth Amendment at the time of his re-sentence in the state court by virtue of whose order of commitment the Commonwealth of Pennsylvania holds him in custody. A preliminary question, however, must be resolved, and that is whether, in the exercise of its jurisdiction in habeas corpus, a federal court ought to inquire into the merits.
On October 3, 1940, the petitioner was arraigned in the Court of Quarter Sessions of Philadelphia County upon an indictment charging him with receiving stolen property, to which he pleaded guilty, and with burglary, to which he pleaded not guilty. On the same day, no objection being made, he was tried for the latter offense, and convicted. Thereupon he was sentenced to an indeterminate term of not less than two and one-half years nor more than five years in the State penitentiary, to begin upon expiration of his violated "parole." Petitioner was then removed to the penitentiary. At these proceedings he was represented by counsel of his choice.*fn2
On October 4, 1940, without prior notice to petitioner or his counsel, and without the presence of either, the Court of Quarter Sessions vacated his sentence and held it under advisement. On October 11, 1940, in the next term of court, and again without prior notice to petitioner or his counsel, the petitioner was brought from the penitentiary to the court. Thereupon, the jurist who had heard the case and imposed and vacated the sentence, in a proceeding lasting a few minutes re-sentenced the petitioner to an indeterminate term of not less than five and not more than ten years in the penitentiary. Petitioner's counsel was not present, not did petitioner ask for counsel.
At the time the original sentence was imposed, the Court inquired of the petitioner whether he had "back time".*fn3 In the presence of his counsel, petitioner replied that he had "five years". At the time of the re-sentencing proceedings, the Court explained that it had learned that the petitioner did not have "back time", and that in consequence thereof the sentence was being changed.*fn4
The contention of the petitioner, on this statement of the facts, is that he was deprived of the effective assistance of his own counsel at an important stage of the proceedings against him. Specifically, it is asserted that although petitioner's trial counsel demurred to the burglary count and moved for a directed verdict, no motion for a new trial was made, nor was an appeal taken, because petitioner would not have benefited: he was sentenced to two and one-half to five years on the burglary count, whereas on the receiving stolen goods count alone, to which he pleaded guilty, he could have been sentenced to five years.
However, it is argued, that had the subsequently imposed longer term been fixed originally, petitioner "might very well" have sought a review of his conviction on the burglary count.*fn5
It is not, however, contended that the petitioner's sentence was increased for any reason other than the misunderstanding with respect to "back time", or that petitioner was not on probation, hence would not have been required to complete a prior sentence before commencing service of the sentence for burglary.
Although the time for taking an appeal had not elapsed even at the time the Court of Quarter Sessions revised the sentence, 12 P.S. § 1136, petitioner waited until March 26, 1943, when, represented by counsel other than the attorney who participated in his trial, he presented a petition for a writ of habeas corpus to the Superior Court of Pennsylvania. That petition did not raise federal questions, but sought his release on the ground, purely local, that the Court of Quarter Sessions had sentenced him in the next term, and was therefore without jurisdiction. That petition was denied: 1943, 152 Pa.Super. 325, 31 A.2d 908.
In September, 1945, petitioner, this time without the aid of counsel, filed an application for a writ of habeas corpus in the Supreme Court of Pennsylvania. In this petitioner he definitely brought to the attention of that Court the facts on which the petition under review is based, and asserted that they amounted to a violation of his federal constitutional rights.*fn6 Original jurisdiction was accepted, but no hearing was held, and the following Opinion was filed:
"Petition refused. This Court cannot interfere with the amount of sentence imposed by the trial judge if within the maximum provided by law.Per Curiam. October 30, 1945."
No application for writ of certiorari was made to the Supreme Court of the United States. However, on November 5, 1946, petitioner was paroled, but was returned to prison on February 5, 1947, where he still remains, for technical violation of the terms and conditions ...