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, 18 P.S. § 3042.
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 five years or more than twenty 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 one to five 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 of 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. No application was filed with the Supreme Court of the United States for writ of certiorari from the denial of the petition for writ of habeas corpus by the Supreme Court of Pennsylvania.
14. 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 ground that he had not exhausted his state remedies.
15. An appeal was taken from this court and the Circuit Court of Appeals remanded this case for further proceedings. 176 F.2d 606.
16. The Court has taken judicial knowledge of all records in either the state or federal jurisdiction relative to the claim of the petitioner.
17. All records which relate to the initial state action and the basis for the sentence imposed, and the present confinement of the petitioner, have been admitted in evidence and are now part of the record of this proceeding.
18. In addition to the foregoing, a full and complete opportunity has been given to the petitioner to testify and introduce any records which were desired.
Conclusions of Law
1. Since the petitioner did not apply for writ of certiorari to the Supreme Court of the United States from the denial of the habeas corpus action by the Supreme Court of Pennsylvania, the petitioner has not exhausted his remedies under state law.
2. The petition for writ of habeas corpus must be denied.
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