The opinion of the court was delivered by: MCGRANERY
A rule to show cause why a writ of habeas corpus should be issued was ordered in the instant case, upon the petition of Abram E. Keener. Petitioner alleged that he was indicated and found guilty in the Quarter Sessions Court of Lancaster County, Pennsylvania, of three offenses: involuntary manslaughter, operating a motor vehicle while under the influence of intoxicating liquor and failure to identify and failure to render assistance. On March 19, 1948, petitioner was sentenced to three months imprisonment and fifty dollars fine on the first offense, a fine of two hundred dollars on the second, and given a suspended sentence on the third. On June 4, 1948, with oral notice to his counsel, petitioner was recalled from prison and sentence was imposed again, as follows:
'On Indictment No. 6, March Term, 1948, charging the defendant, Abram E. Keener, with failure to identify and failure to render assistance, the Court suspended sentence thereon on March 19, 1948. Now, June 4, 1948, the Court sentences the defendant, Abram E. Keener, on said Indictment to pay a fine of $ 10.00 for the use of the State Highway Department and to undergo imprisonment. * * * for a period of 5 months beginning at the expiration of the sentence imposed by this Court on said defendant on Marcy 19, 1948 for involuntary manslaughter. * * * '
Counsel for petitioner excepted to the sentence as illegal and unconstitutional. On June 21, 1948, the Superior Court of Pennsylvania granted a rule to show cause why a writ of habeas corpus should not issue, and a month later heard oral argument on the petition. In his petition, Keener did not specifically urge his constitutional objection, but pressed his contention that the sentencing procedure was an erroneous and illegal interpretation of Pennsylvania statutes 19 P.S. §§ 1051, 1081. On June 22, 1948, the Superior Court handed down an Order refusing the writ of habeas corpus. On August 11, 1948, petitioner filed with the Supreme Court of Pennsylvania a petition for allowance of an appeal from the judgment of the Superior Court, pressing the same contention he had urged below. On September 23, 1948, the Supreme Court of Pennsylvania dismissed the petition. On October 5, 1948, petitioner went back to the Superior Court and asked leave to file a petition for reargument. For the first time petitioner then specifically urged his contention that the sentencing procedure was a violation of federal constitutional rights guaranteed him by the Fourteenth Amendment. This was denied, and on a request to the Supreme Court of Pennsylvania for allowance of appeal from this order, the federal constitutional point was again raised. Allowance of appeal from the order refusing reargument was denied on November 18, 1948. Petitioner then came to this Court, seeking relief.
Chief Judge Kirpatrick and I feel that the Court should deny the writ without considering the question on the merits for the reason that petitioner has not exhausted his state remedies. Thus, petitioner, at the time of his petition, must show that he has no other means of effective redress. It has been pointed out that 'Federal habeas corpus will not issue where the petitioner may appeal from his conviction, or may petition for a state writ of error coram nobis or habeas corpus. Such petitions must be made to the proper state court and must pass through proper appellate channels within the state. Ex parte Hawk, 321 U.S. 114, 116 (64 S. Ct. 448, 88 L. Ed. 572); Betts v. Brady, 316 U.S. 455, 461 (62 S. Ct. 1252, 86 L. Ed. 1595); Sharpe v. Buchanan, 317 U.S. 238 (63 S. Ct. 245, 87 L. Ed. 238). These proceedings do not exhaust petitioner's remedies unless the precise point was considered in the light of the latest controlling decision. Ex parte Hawk, supra; Ex parte Williams, 317 U.S. 604 (63 S. Ct. 431, 87 L. Ed. 491); Mackey v. Kaiser, 323 U.S. 683 (65 S. Ct. 558, 89 L. Ed. 554); Stonebreaker v. Smyth, (4 Cir.), 163 F.2d 498.' See Note, the Freedom Writ- The Expanding Use of Federal Habeas Corpus, 61 Harvard L.Rev. 657, 664.
Ex parte Hawk, supra, clearly indicates the strength of this principle. Petitioner in that case first sought habeas corpus in the lower Nebraska court. The denial of his petition was affirmed by the Nebraska Supreme Court, Hawk v. O'Grady, 137 Neb. 639, 290 N.W. 911, and the United States Supreme Court denied certiorari, 311 U.S. 645, 61 S. Ct. 11, 85 L. Ed. 412. Petitioner then went to the Federal District Court for Nebraska, alleging matters not previously brought to the attention of the state courts. His application was denied, and the denial was affirmed by the Circuit Court of Appeals, Hawk v. Olson, 8 Cir., 130 F.2d 910, on the ground that state remedies had not been exhausted. Certiorari to the United States Supreme Court was denied, 317 U.S. 697, 63 S. Ct. 435, 87 L. Ed. 557. Petitioner then sought habeas corpus in the Nebraska Supreme Court, which was denied. Accordingly, he sought to file a writ of habeas corpus in the Supreme Court of the United States. This was denied, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572, without prejudice to his making an application to the Federal District Court. Petitioner then renewed his petition for habeas corpus in the Federal District Court for Nebraska and the Circuit Court of Appeals for the Eighth Circuit. When both of these were denied, 66 F.Supp. 195, 160 F.2d 807, he again applied in the Supreme Court of the United States for leave to file a petition for habeas corpus. After all these efforts, the Supreme Court said, at 321 U.S. 116, 64 S. Ct. 449, 88 L. Ed. 572:
'So far as appears, petitioner's present contentions have been presented to the state courts only in an application for habeas corpus filed in the Nebraska Supreme Court, which it denied without opinion. From other opinions of that court it appears that it does not usually entertain original petitions for habeas corpus, but remits the petitioner to an application to the appropriate district court of the state, from whose decision an appeal lies to the state Supreme Court * * * . From that court the cause may be brought here for review if an appropriate federal question is properly presented.
'Of this remedy in the state court petitioner has not availed himself. Moreover, Nebraska recognizes and employs the common law writ of error coram nobis which, in circumstances in which habeas corpus will not lie, may be issued by the trial court as a remedy for infringement of constitutional right of the defendant in the course of the trial * * * . Until that remedy has been sought without avail we cannot say that petitioner's state remedies have been exhausted.'
The policy of requiring exhaustion of state remedies is no longer a judicial declaration only; it has acquired, as well, the strength of a statutory command by the Congress of the United States. In Revised Title 28 of the United States Code Annotated, now in effect, section 2254 provides:
'An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
'An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. (Emphasis supplied.)
The case of Wade v. Mayo, 334 U.S. 672, 68 S. Ct. 1270, 92 L. Ed. 1647, indicates that state procedure may be exhausted without applying for certiorari to the Supreme Court of the United States. There is nothing in the Wade case that in any way weakens the effect of the doctrine short of that point.
Applying this concept to the facts of the instant case, the Chief Judge and I think that petitioner has not yet exhausted his state remedies. The petition discloses that neither the Superior Court nor the Supreme Court of Pennsylvania has directly passed upon the federal question involved. It shows that petitioner's contention that the sentence imposed upon him violated his rights under the 14th Amendment was not clearly presented to the Superior Court on the petition for a writ of habeas corpus filed June 21, 1948. Nor was it clearly presented in the record before the Supreme Court of Pennsylvania on the petition for an allowance of appeal filed before it on August 11, 1948. When this was denied, petitioner, for the first time specifically pressed his due process argument in presenting a petition for reargument in the Superior Court on October 5, 1948. His petition, on November 5, 1948, in the Pennsylvania Supreme Court for allowance of an appeal from the order denying reargument specifically presented the due process objection for the first time in that court. Therefore, it is apparent that the contention pressed in this Court has been specifically presented to the Supreme Court only in a petition for reargument, after an appeal has been denied, and has been presented to the Pennsylvania Supreme Court only in a petition for allowance of an appeal from the order denying reargument.
Both the Superior Court and the Supreme Court have original jurisdiction to issue writs of habeas corpus. See 17 P.S. 48 and 181. Accordingly, petitioner can present his federal constitutional argument on an original habeas corpus application in either court. It is certainly not impossible in Pennsylvania for a prisoner to make more than one application for the writ to the Superior Court. Cf. Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 60, 24 A.2d 1. Similarly, petitioner would not seem foreclosed from proceeding in the Supreme Court on an original writ on the sole reason that he had previously applied for a writ in the Superior Court. Cf. the situation in Commonwealth of Pennsylvania ex rel. Billman v. Burke, 170 F.2d 413, Third Circuit, opinion September 30, 1948. We do not feel that the federal constitutional issue has as yet been presented squarely to either court, and until it has been, we do not think it proper for a federal court to interfere. The constitutional issue is one which the Pennsylvania Supreme Court has 'obligatory jurisdiction to review.' See Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S. Ct. 184, 188. If it has already done so, of course, a second writ in the Superior Court or a writ in the Pennsylvania Supreme Court may be denied. Cf. Commonwealth ex rel. Orlando v. Smith, 346 Pa. 42, 30 A.2d 534; Commonwealth ex rel. Penland v. Ashe, 341 Pa. 337, 19 A.2d 464. But on this record, we find it difficult to conclude that, in the words of the ...